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Case No: 2002/04091/D1 Neutral Citation Number: [2004] EWCA Crim 07 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WINCHESTER CROWN COURT His Honour Judge Robert Pryor QC Royal Courts of Justice Strand, London, WC2A 2LL Date: Wednesday 21 st January 2004 Before : LORD JUSTICE RIX MR JUSTICE McCOMBE and THE HON RECORDER OF MIDDLESBROUGH (sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - Christopher John MINTERN Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Keith Hadrill for the Appellant Mr Stephen Parish for the Crown Hearing dates : 5 th December 2003 - - - - - - - - - - - - - - - - - - - - - JUDGMENT Lord Justice Rix: 1. On 19 June 2002 in the Crown Court at Winchester before HH Judge Robert Pryor QC and a jury the appellant, Christopher John Mintern, was convicted on two counts of conspiracy and a further count of attempting to damage property being reckless as to whether life would be endangered. On 12 July 2000 he was sentenced to a total of ten years imprisonment. The three counts were count 3, conspiracy to commit burglary, for which he was sentenced to six years, count 4, conspiracy to commit arson, for which he was given a consecutive sentence of 4 years, and count 5, attempting to damage property, for which he was given a concurrent sentence of four years. Mintern appealed against conviction with the leave of the single judge. On 5 December 2003 we heard his appeal and dismissed it, but reserved our reasons which are now contained in this judgment. 2. Mintern was indicted with ten other co-defendants on an indictment which had originally contained 17 counts. By the time the indictment reached the jury the counts had been reduced to seven and had been re-numbered. Counts 3, 4 and 5 had originally been numbered 4, 5 and 7. 3. Count 3 alleged that in the fifteen or so months between 13 January 2000 and 25 April 2001 Mintern and five co-accused had conspired together and with other persons unknown to enter buildings as a trespasser with intent to steal. The five co-accused were Danny Stevens, Joseph Smith, Paula Hinckley, David Clothier and Richard King. Stevens was found not guilty by the direction of the judge following a submission of no case to answer at half-time. Hinckley, who was Mintern’s girl-friend, was acquitted. Smith, as well as Mintern, was convicted. King pleaded guilty to a further conspiracy on count 8 and no evidence was offered against him on count 4. Clothier was also acquitted, the Crown offering no evidence against him but accepting a plea to offences of going equipped. 4. Count 4 alleged that in the same fifteen month period Mintern had conspired with Stevens, Smith and Hinckley and with other persons unknown to destroy or damage by fire motor vehicles belonging to others. Stevens and Hinckley were both found not guilty by the direction of the judge following a submission of no case to answer. Count 5 related to a substantive offence arising out of a police car chase on 10 October 2000. 5. Stevens was a major criminal who had already received a life sentence at an earlier trial. He was also indicted at this trial, in addition to counts 3 and 4 (the 2000 conspiracies) on which he was acquitted, on two further conspiracies to burgle and steal, one relating to dates in 1999 (the 1999 conspiracy) and one relating to later dates in 2001 (the 2001 conspiracy). To these he pleaded guilty by a change of plea at trial, and was sentenced to a total of 8½ years imprisonment. The trial was opened by the Crown on the basis that Stevens was a key player who lived on a caravan site which provided the metaphoric and geographic hub of the offences. The prosecution case 6. We can take the relevant factual background to this appeal in large part from the advice and perfected grounds drawn up by Mr Keith Hadrill, who appeared for Mintern at trial and again on this appeal. 7. The two conspiracy counts alleged against Mintern were based around "ram-raid" burglaries which involved the use of stolen vehicles, often of the Range Rover 4x4 type, to ram the windows of commercial premises and to dislodge and make off with automatic telling machines (ATMs). The stolen ATM would then be moved to another location, either using the same 4x4 or another stolen vehicle, and the ATM would be cut open to get at the cash inside. The stolen vehicles would then often be set on fire and burned out, sometimes leaving the ATM inside or nearby. This was done to destroy evidence and founded the arson conspiracy. These operations occurred in Hampshire, Surrey and Berkshire. 8. Count 5 related to a specific incident on 10 October 2000 when the police chased a stolen Mercedes estate containing three people wearing balaclavas. During the chase, the police car was rammed by the Mercedes operating in reverse in an attempt to disable the pursuing vehicle. Items such as sledgehammers, bolt croppers and a disc cutter were thrown out of the back of the Mercedes for the same purpose. The Mercedes was pursued down a track in Bracknell Forest and crashed. Its occupants fled. Mintern was found by a dog-tracker close by the abandoned Mercedes and there was a balaclava lying on the ground near where he was arrested. He was wearing mesh-type gardening gloves. 9. The particulars of the counts 3 and 4 conspiracies given on the indictment merely alleged that the co-accused "between the 13 th day of January 2000 and the 25 th day of April 2001 conspired together and with other persons unknown" respectively to burgle and to damage or destroy by fire vehicles belonging to others. However, at the outset of the trial the prosecution placed before the jury a schedule (the "original schedule") which itemised the events which were said to form the particulars of the conspiracy counts. Items 5/25 on that schedule related to the two counts which made up the 2000 conspiracies. There were 21 such items the earliest of which was dated to 13 March 2000 and the last of which was dated to 9 March 2001. All 21 items involved burglaries or attempted burglaries, and a smaller number involved arson to vehicles involved in the burglaries. 10. As for Mintern’s involvement in the conspiracies, the prosecution sought to prove that in particular by evidence falling under six main heads: a footprint, a jacket, a cigarette butt, a trip to New Milton, the Mercedes car chase, and association with two other vehicles, F223 KHO and G900 XFH. 11. The footprint: A ram-raid occurred on 24 March 2000 at Southsea and an ATM was stolen. A Subaru bearing foreign number plates was seen driving away with its boot open and a bulky item in the back. A Subaru Impreza and an ATM were later found burned out in Bramshill Forest near Camberley. A shoe later seized from Mintern’s home in Camberley on 14 April 2000 was found to have the same tread pattern as a print lifted from the crime scene. 12. The jacket: A ram-raid took place at the HSBC branch in Wokingham on 5 April 2000. CCTV evidence showed one of the participants wearing a dark jacket with silver or white stripes down the sleeves. A jacket similar in appearance was later found at Mintern’s home on 14 April 2000. There was no forensic scientific link between the jacket and the crime. 13. The cigarette butt: On 28 June 2000 police officers lay in wait at a shop called Supermacs at Horndean Road, Bracknell. A ram-raid took place involving four vehicles and five people. One of the vehicles was a dark Mondeo, S747 MBK, which was detained at the scene. Four men were arrested, including a nephew of Hinkley, one Danny Coombes. The fifth man escaped in a stolen Shogun, but the description given for him did not fit Mintern. This Mondeo was alleged to have been used in two previous ram-raids (in May or June). The contents of its ashtray were analysed, and Mintern’s DNA was found on one cigarette butt and Hinkley’s on two other butts. 14. The New Milton trip: Police surveillance at the home of Hinckley revealed that Mintern and others drove from there to New Milton in the New Forest on the evenings of 15 and again 17 August 2000. The car used on 15 August belonged to Hinckley and that used on 17 August belonged to Mintern. There was an attempted burglary on a store in New Milton on 31 August. The earlier trips were said to be by way of reconnoitre. 15. The Mercedes car chase: We have already described this above. It occurred on 10 October 2000. 16. Vehicles F223 KHO and G900 XFH: On 16 November 2000 F223 KHO, a Vauxhall Cavalier, was observed on Hinckley’s driveway, a few days after a ram-raid burglary at King and Sons in Sandhurst. The car was forensically linked to the burglary because fibres from it as well as glass from the burgled premises were both linked to the co-defendant Smith. On 29 November 2000 G900 XFH, a Vauxhall Belmont, was involved in a road traffic accident near Crowthorne in Berkshire. In a carpark close to the accident was a Citroen AX, which had been stolen only two hours before the accident and was on fire. Two weeks earlier the Vauxhall Belmont had been observed both outside Mintern’s home address and also outside Smith’s home. Indeed, Smith had a key to it. It was alleged that the Citroen was part of the conspiracy to commit arson and that the Belmont was to enable the conspirators to leave the area. The applications at the close of the prosecution case 17. At the close of the prosecution case counsel on behalf of Stevens made a submission of no case to answer on the conspiracy counts 3 and 4 on the basis that there was nothing to link him to the co-accused. The judge ruled in favour of that submission, saying that the evidence revealed more than one set of conspirators. The Crown responded with an application to amend the indictment to include two separate pairs of counts to cover the 2000 conspiracies: one pair against Mintern, Smith and Hinckley and persons unknown and another pair of counts against Stevens and persons unknown. 18. The judge considered and rejected the prosecution’s application to amend the indictment so as to split the allegations of conspiracy as against Stevens and as against the other three co-defendants respectively. He was satisfied that there would have been no technical difficulty with an original indictment in that form, but that it would not be fair to the defendants as a whole to permit such an amendment at the close of the prosecution case, on the basis of their counsel’s assertion ("without it appearing quite unsupportable") that that would have affected the way in which they would have conducted their case. 19. Mr Hadrill, on behalf of Mintern, for his part submitted that if the original conspiracies charged were now each to be seen as potentially covering two conspiracies, then the indictment was bad for duplicity and Mintern should also be acquitted on counts 3 and 4. 20. The judge rejected that application. He said: "I concentrate on those two particular counts because they are the ones which have led to the decision I made earlier today to conclude that there was no evidence to go before a jury to establish that Danny Stevens was part of either of the conspiracies alleged…But what emerged was that whatever evidence there might be as to Danny Stevens’ activities, there was nothing of any significance which could be placed before the jury to tie him in with the activities of the other three alleged conspirators… In effect, what one is left with is evidence which does not establish the existence of a single conspiracy in which Danny [Stevens] can be shown to have been involved. If it establishes conspiracy, it establishes two conspiracies (or possibly more) but at least two…. I should go on from there to consider where that leaves the other three defendants, because it has been forcefully argued by Mr Hadrill on behalf of Christopher Mintern that if I direct the acquittal of one defendant to that conspiracy I really in logic should direct the acquittal of all of them on the basis that the conspiracy that the prosecution set out to prove has not been proved and therefore the case should not go on against the other three defendants. I do not accept that argument. I think that the effect of my order is to say that the evidence does not prove that Danny Stevens was involved with a conspiracy with the other three. It does not follow that the other three were not themselves involved in a conspiracy to carry out burglaries." 21. The judge then referred to R v. Griffiths [1965] 49 Cr App R 275 , [1966] 1 QB 589 and R v. Greenfield [1973] 57 Cr App R 847 , [1973] 1 WLR 1151 and found that the following dictum from the latter authority met the prima facie facts of the case as they had been revealed so far, where Lawton LJ had said (at 857): "At the end of the prosecution’s case the evidence may be as consistent with the accused, or some of them, having been members of the conspiracy which was not the one charged as with the one charged. In such a situation the trial judge should rule that there is no case to answer. But if at the end of the prosecution’s case there is evidence on which, if uncontradicted, a reasonably minded jury could convict the accused, or two or more of them, of the conspiracy charged (despite evidence of the existence of another conspiracy) then the trial judge should let the case go to the jury." 22. The judge next considered Mr Hadrill’s alternative submission on behalf of Mintern that to continue against the background of all the evidence which the prosecution had led would be unfair to Mintern and place him at some disadvantage: but the judge did not accept that submission. He said: "The evidence remains the same. All it does is fail to prove the case of conspiracy against Danny Stevens. Its failure lies in failing to tie him into an agreement, not in failing to adduce evidence which might lead to the conclusion that he has been involved in ramraiding." 23. The judge also accepted an application on behalf of Hinckley of no case to answer on count 4, which was not resisted by the prosecution. Mr Hadrill in his written submissions described this as an "unexpected success". As a result, a similar application was made on behalf of Mintern, but this was opposed by the prosecution and failed. The grounds of appeal 24. In these circumstances Mintern has essentially three grounds of appeal. The first and second arise out of Stevens’ acquittal at half time on counts 3 and 4, the third out of Hinckley’s acquittal at half time on count 4. The first is that when the prosecution evidence disclosed two pairs of conspiracies, one pair involving Stevens and the other pair not involving him, the judge erred in not directing an acquittal in respect of all the defendants on the ground that the counts charged against them were duplicitous. The second is that the judge erred in any event in not discharging the jury but allowing the case to continue against the defendants other than Stevens in circumstances where he had ruled that it would have been unfair to amend the indictment as requested by the prosecution. It is said that that unfairness embraced count 5 as well. The third ground is that the judge erred in not acceding to the parallel application on behalf of Mintern to find no case to answer on count 4, since the evidence against Hinckley was effectively the same as against him. The consequences of the judge’s rulings 25. The judge took care to inform the jury, when they returned to court, about the results of the submissions that he had been hearing at half time in their absence. He told them: "So the conclusion that I have arrived at is that it is right for you to consider all the evidence that exists to see whether there is an agreement at all on both counts 3 and 4 and, if so, whether any of the defendants alleged was involved in it. But I am directing you now that on the evidence that exists at the moment the prosecution has not proved that Danny Stevens, whatever else he may have done, was not – the prosecution has not proved that he was involved in any agreement with the others." 26. The prosecution immediately set about amending the schedule of itemised events which were said to make up the subject matter of the conspiracies on counts 3 and 4 (the "amended schedule"). There were now only 10 robberies or attempted robberies, between 24 March and 23 November 2000, together with their associated car burnings. The prosecution made it clear that they were confining the evidence on which they relied to the items scheduled in the amended schedule. That the schedule would have to be amended was recognised at the time of the submissions which had led to the judge’s rulings. 27. In due course in his summing up, about which no criticism is made, the judge emphasised the need, before convicting any of the three co-defendants remaining in respect of counts 3 or 4, to find a single conspiracy to which each was linked; and he also emphasised the restricted case the prosecution was now making under those counts. Thus he said (at pages 20/21 of the transcript): "Finally on this, it is important to remember this. That where, as in counts 3 and 4 in this indictment particularly, you have an allegation that the defendants took part in a conspiracy over a long period, it is important to remember that the prosecution must prove a single conspiracy. That is what has been charged and that is what the prosecution must prove. You have been told that more than once. So if you have two alleged conspirators, A and B, and there is no evidence to link them into the same conspiracy, they cannot be convicted of conspiring together in that conspiracy. Whatever evidence there may be against each of them individually, they still cannot be convicted of conspiring unless they are linked together in the way I have indicated. That is why I directed you at the end of the prosecution’s case to acquit Danny Stevens. I concluded as a matter of law that there was not enough evidence of the link between him and the others to enable you to convict him as being involved in a single conspiracy with them. When a judge reaches a conclusion of that kind, it is his duty to direct the jury to acquit the defendant in question…It remains for you to consider whether the remaining defendants, or any of them, conspired together or with others in a single conspiracy. What the prosecution seeks to prove under counts 3 and 4 is that there was a longstanding agreement to carry out ram raids as and when the opportunity arose, and that each of the three defendants under count 3 and the two defendants charged under count 4 played some part in the course of conduct which had been agreed." 28. He went on, in dealing with the evidence, to address the jury solely by reference to the amended schedule, to which he referred in terms (at p 48 of the transcript). The first ground: duplicity 29. On behalf of Mintern, Mr Hadrill submitted that counts 3 and 4 were duplicitous, or charged what he described as "rolled-up" conspiracies. In effect he argued that when the judge found that the prosecution’s evidence under counts 3 and 4 prima facie revealed two separate (pairs of) conspiracies, the duplicitous form of the indictment was revealed. It then became impossible to know whether the counts charged a conspiracy or conspiracies against Stevens (with persons unknown but not the other three accused, Mintern, Smith and Hinckley) or a separate conspiracy or conspiracies against Mintern, Smith and Hinckley (and persons unknown but not Stevens). Who was to say that the indictment charged the conspiracies which remained in the charge of the jury, as distinct from the conspiracies which, of the original accused, only involved Stevens? After all, the prosecution’s schedule which had begun by particularising 21 events between March 2000 and March 2001 became an amended schedule particularising only 10 events between March and November 2000. It was submitted that the evidence revealed that the counts had charged duplicitous pairs of conspiracies, that it was impossible to say that the conspiracies which remained in the charge of the jury were the conspiracies alleged in the indictment, and that in effect the prosecution had achieved an amendment of the indictment by restricting it to only part of what the prosecution had earlier presented to the jury as demonstrating the conspiracies alleged. 30. On behalf of the Crown, however, Mr Stephen Parish submitted that duplicity was a pure matter of form, the indictment was not duplicitous in form and it did not matter that the evidence had revealed more than one conspiracy or that there was no evidence to link Stevens into a conspiracy involving the other three. Thus the conspiracies of which Mintern had been convicted were the conspiracies charged in the indictment even if some of the incidents previously relied on were abandoned half-way through the trial. Essentially all that had happened was that it had been determined at the half-way stage that one of the four alleged conspirators had not been party to the conspiracies charged. 31. Both counsel submitted that Griffiths and Greenfield supported their respective cases. We therefore turn to those authorities. 32. The usual point for which Griffiths is cited is that the practice of adding a "rolled up" conspiracy count to a number of counts charging substantive offences should be discontinued (at 288/9). It is in this sense that one speaks of a conspiracy count as "rolling up" a number of substantive counts, whether charged or not charged. The prosecution was castigated as overburdening the jury. The case is also authority for the proposition that a "wheel conspiracy", where each conspirator is alleged to conspire with a central conspirator but not with the other named conspirators, is unknown to the law. A number of farmers had been accused of conspiring to defraud the government in the matter of lime subsidy. Each, however, had acted independently of the other farmers, although they had all bought from the same supplier. The farmers’ convictions were therefore quashed. The judgment of Paull J went on to consider nevertheless whether the convictions of the two central characters could stand, but it was held that they could not, on the ground that the judge’s summing-up had been defective and their convictions were therefore unsafe. Nothing was said about a duplicitous indictment. The judgment ended as follows (at 296/7): "The fundamental mistake was even to attempt to try the matter as one case. In addition the learned judge was certainly not helped either by the somewhat confused way in which the case was developed for the prosecution by way of submissions, nor by the fact that no counsel for the defence even suggested that the conspiracy charge could not stand on the evidence presented by the prosecution, nor suggested that, in fairness to the accused, the case should not be tried as one conglomerate whole. The fact, however, is that the trial of this case and the summing-up are so unsatisfactory that none of the verdicts can possibly stand. The case started as a fraud by under-delivery of lime. When the whole of the prosecution evidence had been tested on this basis, the case began to change to lime for the cost of the subsidy. It was then seen that this would not do, at least in many of the cases, and the case then changed to a case of the parties exaggerating the value of the goods taken in exchange. Not only were the precise charges which finally remained never explained to the jury, but, as was pointed out by Lord Goddard C.J. in the case of ABBOTT (1955) 39 Cr.App.R. 141 , at p. 151; [1955] 2 Q.B. 497 , at p.506: "It cannot be right for a judge to leave a case to the jury where the whole structure upon which the prosecution has been built up to that moment collapses and falls, for that is what happened in this case."" 33. That passage was relied upon by Mr Hadrill, but in our judgment any relevance it has is primarily or exclusively to the second ground of appeal. 34. In Greenfield the defendants had been charged inter alia with conspiracy to cause explosions. A ground of appeal was that that conspiracy count was bad in law. The prosecution sought to prove the conspiracy by calling evidence about 25 explosions or attempted explosions within the 3½ year period of the conspiracy alleged. A schedule was prepared. In the course of the trial the prosecution, while maintaining their original case that all 25 incidents were the responsibility of the same persons, also developed an alternative case viz that at least half of those incidents were "and that all the accused had conspired to effect those incidents" (at 853). Lawton LJ explained the matter as follows (at 855): "Mr Lowry submitted that count 1 was bad in law because, as the trial progressed, the evidence was consistent with the existence of more than one conspiracy. In our judgment that did not make the count bad in law. A conspiracy count is bad in law if it charges the accused with having been members of two or more conspiracies. This is elementary law. We have had to consider whether count 1 did charge more than one conspiracy. It referred to one conspiracy only…Mr Matthew’s opening made clear that the prosecution was alleging that there was only one conspiracy which all the accused had joined. We mention this incident because judges may be in doubt as to what they should consider before deciding whether a conspiracy count is bad for duplicity. They should look first to the count itself. In most cases it will be unnecessary to look at any other material. If particulars of the count have been requested and given, these too should be considered… Duplicity in a count is a matter of form; it is not a matter relating to the evidence called in support of the count..." 35. Lawton LJ then went on to give two examples of counts which were bad for duplicity. One was in R v. West [1948] 32 Cr App R 152 , [1948] 1 KB 709 , where the count alleged conspiracy to infringe Defence Regulations which had changed over the course of time: it followed necessarily that such a conspiracy could not have been formed all at one time. The other example given was R v. Davey [1960] 45 Cr App R 11 , [1960] 1 WLR 1287 : the 11 year conspiracy there alleged to defraud certain companies again could not have been formed all at one time, for some companies had not been incorporated and some had already been wound up at times when some of the alleged conspirators had not been said to have joined it. In contrast to these two cases Lawton LJ cited Griffiths as an example where the conspiracy alleged had not been duplicitous (at 856): "…the conspiracy count alleged one conspiracy and was not bad for duplicity; but the evidence led to support that count wholly failed to prove the conspiracy charged. Instead of proving that the accused had all conspired together for a common purpose, it proved that many of them had conspired with one of their number for their own purposes. No such common purpose as charged was ever established and so, as a matter of proof, there had to be an acquittal." 36. Lawton LJ then returned to the case before him (at 856/7): "In our judgment, the distinction which exists between form and proof is the clue to the problem provided by this case. The prosecution was alleging that these appellants and the other accused had had a common purpose to cause explosions. All the accused in their several ways challenged this basic allegation of a common purpose; and they did so by alleging that the evidence revealed the possibility that those charged may have had in relation to some of the incidents purposes which were not common at all. What they were doing was challenging the existence of the conspiracy as charged, which is but a way of saying that they were denying that the prosecution had proved their case. A charge which is not bad for duplicity when the trial starts does not become bad in law because evidence is led which is consistent with one or more of the accused being a member of a conspiracy other than the one charged. Such evidence may make it impossible for the prosecution to establish the existence of the conspiracy charged. GRIFFITHS ( supra ) was such a case. At the end of the prosecution’s case the evidence may be as consistent with the accused, or some of them, having been members of a conspiracy which was not the one charged as with the one charged. In such a situation the trial judge should rule that there is no case to answer. But if at the end of the prosecution’s case there is evidence on which, if uncontradicted, a reasonably minded jury could convict the accused, or two or more of them, of the conspiracy charged despite evidence of the existence of another conspiracy, then the trial judge should let the case go to the jury. "That was happened in this case. James J. allowed the case to go to the jury and directed them in the clearest terms that before convicting anyone they had to be sure that the prosecution had proved the existence of the conspiracy charged. Thus at the outset of his summing-up he said this: "Remember this, the longer a conspiracy is alleged to have lasted, the more important it is that one should look with care, to make sure it is one and the same agreement that is being alleged and not a different number of agreements within that one period. The Crown say here that there was one and the same throughout." This direction was repeated over and over again during the long summing-up which this lengthy trial made necessary. In our judgment the conspiracy count was not bad in law and the direction to the jury on it was correct." 37. Mr Hadrill submitted that in this case the judge’s acceptance that the evidence prima facie demonstrated two separate pairs of conspiracies to only one of which the accused other than Stevens might belong caused a situation which went beyond what Lawton LJ was contemplating in Greenfield . It is true that in that case the alternative cases presented by the prosecution remained only that, cases for the jury to consider. Even so, for that very reason the matters there presented went beyond the present, because they permitted the possibility that the incidents which did not form part of the alternative case were caused by an alternative conspiracy. In the present case the judge’s ruling and the prosecution’s reaction to it, the amendment of their schedule, ensured that what was presented to the jury was a single conspiracy only, embracing part of the original incidents scheduled (as in Greenfield ), to which all the accused still left in to answer counts 3 and 4 were alleged to be party. Moreover, the essential distinction drawn by Lawton LJ, between a count which is duplicitous in form and one which merely turns out to be so when the evidence is in, as he put it "despite evidence of another conspiracy", entirely supports the lawfulness of the present counts 3 and 4. Mr Hadrill does not submit that those counts were duplicitous in form. While we think that the distinction between conspiracies which are duplicitous in form and those which are not may in certain cases be difficult to draw, as will often arise with a formal test, we were not asked to consider further the cases of West and Davey cited by Lawton LJ, and the possibility that counts 3 and 4 could be interpreted as being duplicitous in form was in any event not contended for. 38. In our judgment, the true ground on which the conduct of the trial and its convictions are to be challenged, if at all, is the second ground which raises the question of the fairness of the proceedings when once it had emerged that the evidence presented to the jury and the incidents scheduled by the prosecution did indeed cover two separate (pairs of) conspiracies. This is we think indicated by those passages in both Griffiths and Greenfield in which the fairness of the proceedings and of the judge’s directions was considered. It is also indicated by the cases referred to in a separate passage in Archbold , 2004 ed, at para 7-78 ( cf para 1-135 where Griffiths and Greenfield are discussed), to which the court drew attention but which otherwise were not cited. 39. Thus in R v. Thompson [1914] 2 KB 99 an objection taken at trial that a count was duplicitous was dismissed and a conviction was obtained, but on appeal although it was held that the indictment had indeed been duplicitous in that it had charged more than one offence in each count nevertheless the conviction was upheld under the proviso. That case concerned incest. Sir Rufus Isaacs CJ, giving the judgment of a five judge court of criminal appeal, said (at 104/5): "If we had thought that any embarrassment or prejudice had been caused to the appellant by the presentment of the indictment in this form we should have felt bound to quash the conviction whatever our views might be as to the merits of the case. It must not be thought that we are deciding that such objections should not be allowed to prevail either at the trial or in this Court. An indictment so framed might undoubtedly hamper the defence, and if it did we should undoubtedly give effect to the objection…One of the objects of section 4 [the proviso] was to prevent the quashing of a conviction upon a mere technicality which had caused no embarrassment or prejudice." 40. In R v. Wilmot [1934] 24 Cr App R 63 , on the other hand, a duplicitous indictment in a driving case led to the quashing of a conviction without more ado and even though the point had not been taken at trial. It was indicated that the vice of duplicity was that the defendant cannot know with precision with what he is charged and of what he is convicted and may be prevented on a future occasion from pleading autrefois acquit . In R v. Jones [1974] 59 Cr App R 120 one of the counts charged several incidents of affray in a single duplicitous count. The point had been taken even before arraignment and the conviction was quashed: James LJ said (at 128): "If satisfied that no injustice would have been caused, [the judge] should have directed an amendment of the indictment. Alternatively he should have put the Crown to election as to the affray in respect of which the Crown would proceed. He did not do so. In those circumstances there was an error of law." 41. Coming to modern times, R v. Levantiz [1999] 1 Cr App R 465 reviewed these and many other cases. The appellant had been convicted on a count of supplying heroin which this court assumed for the sake of argument had duplicitously combined a series of separate supplies. Buxton LJ pointed out that Thompson "is an authority of this Court that has stood for more than 80 years and has been followed on a number of occasions" of which he gave examples (at 475). He then turned to cases such as Wilmot and Jones which had been relied on for the submission that a duplicitous indictment could not lawfully lead to a conviction or one that could be sustained as safe and demonstrated that they did not support such a conclusion contrary to the authority of Thompson . He also concluded that no injustice or handicap had been done to the appellant there, whose conviction was upheld despite the assumption of duplicity made in his favour. 42. Mr Hadrill did not dispute this principle, recorded in Archbold in the passage just cited, but sought to show in his second ground that Mintern had suffered an injustice. We mention the principle here for it seems to us to support the distinction drawn by Lawton LJ between initial formal duplicity and the development of evidence at trial. If an indictment is formally defective because duplicitous, that should be identified and rectified for all the reasons (referred to above in Wilmot ) why duplicitous counts may cause difficulties at trial and thereafter. If, however, an indictment is not duplicitous but evidence reveals that where one offence had been thought to have been charged there had emerged more than one or the possibility of more than one, then special precautions may need to be taken to ensure that the difficulties of duplicity are avoided. There was no duplicity in Griffiths , but the case as it developed at trial ran into the gravest difficulties which were never overcome, if indeed they were not insuperable. There was no duplicity in Greenfield , but the emerging problems at trial were addressed by what this court regarded as suitable directions. In other cases, like Thompson and Levantiz , there was duplicity, real or assumed, but there was on the facts no embarrassment or prejudice at trial, and convictions were upheld. A trial should not begin with a legally defective indictment, but in all cases it is the substance of the quest for fairness and not the mere form that is important. The question is how these considerations affect the present appeal, and we therefore turn to Mr Hadrill’s second ground. The second ground: unfairness 43. Mr Hadrill’s submission under this ground is that the question of fairness had really been answered by the judge’s own decision that it would have been unfair to have permitted the prosecution to amend the indictment to introduce a new pair of counts against Stevens and thus formally to separate him and the other accused on counts 3 and 4. He submitted that the judge should have permitted the amendments requested and then, on the basis of his finding of unfairness, discharged the jury so that separate re-trials could be conducted. As it was, the three defendants including Mintern left in on counts 3 and 4 were prejudiced. 44. Our difficulty, however, is in understanding how the three defendants were in fact or could in theory have been prejudiced or embarrassed, and nothing that Mr Hadrill said made this matter clearer. It seemed that his main complaint was that Stevens, who on his own admission in an intercepted conversation which had been put before the jury by the Crown was the biggest burglar in that region, had been acquitted of the 2000 conspiracies, while the three other defendants remained on trial. Thus the submission made was that in fairness if one defendant was successful at half-time, then all should have been. On an altogether contrary tack, reliance was placed on evidence subsequently introduced by Stevens (through the relevant investigating police officer) of a further 65 ram-raids carried out in the same area over the same time-scale, of which he said he was innocent: it was suggested that this could have thrown suspicion on the co-defendants and complaint was made that the prosecution could well have re-examined the police officer to show that such cases could be traced to Stevens through either relatives or other associates of his. 45. However, we are wholly satisfied that there was no unfairness to Mintern or his remaining co-defendants on counts 3 and 4. As was submitted on behalf of the Crown, we consider that if anything Mintern was assisted by the establishment in evidence led by the Crown that Stevens, with other persons unknown – for it was plain that ram-raiding could not be carried out by one person – but not the co-defendants, was implicated in incidents which had been originally scheduled against the accused but had now been dropped from the Crown’s amended schedule. In other words, ram-raids were not so unusual that any evidence linking Mintern to one such raid would necessarily link him to other raids too. The co-defendants were in a position to place any and all raids still blamed on them at the door of Stevens and his gang. In the meantime the Crown accepted, by the amendment of their schedule, that Mintern had nothing to do with the raids now omitted from the amended schedule. As for the judge’s ruling against an amended indictment, it seems to us that his predominant concern was of any unfairness to Stevens, who was otherwise entitled to an acquittal on these counts. In any event, the judge had to decide in the balance of his discretion whether in the absence of an amendment to charge Stevens with two new counts of conspiracy it would be right to discharge the jury in respect of the existing counts against the other three defendants, once the prosecution schedule had itself been amended. We do not think that he can be shown to have erred in the exercise of that discretion. 46. Finally, we have in mind the judge’s clear and helpful comments and directions to the jury both at the time of explaining what he had done in directing acquittals on counts 3 and 4 in favour of Stevens and in his later summing-up. At the end of the day, the case made against Mintern and his two remaining co-defendants was a limited and restricted one in circumstances where the Crown had to accept that other ram-raids were being carried out pursuant to other conspiracies not involving them: and the jury were so directed. 47. As for count 5, whatever ramifications it had for the other counts, the evidence against Mintern there was extremely strong and seems to us to be wholly unconnected with the arguments raised on the other counts. 48. We therefore found that Mintern’s second ground failed as well. The third ground: Hinckley’s acquittal on count 4 49. We think that there is no substance in this ground. In effect, Mr Hadrill’s submission is that the evidence against Hinckley and Mintern on count 4 was essentially the same, so that if a submission of no case to answer was accepted on Hinckley’s behalf, it should have borne fruit for Mintern as well. We do not agree. The judge was entitled to think that the evidence against Mintern went beyond that against Hinckley; and in any event, if Hinckley was lucky in having the Crown not oppose the submission in her case, that says nothing for the situation where Mintern is concerned. A submission was only made in Mintern’s case when Hinckley’s was accepted. That is consistent with our way of looking at the matter. In our judgment there was ample evidence in Mintern’s case to justify the judge’s decision to refuse to direct his acquittal on count 4 at half time. Conclusion 50. It follows that we reject all three grounds for the reasons given above. In the circumstances Mintern’s appeal was dismissed.
{"ConvCourtName": ["Crown Court at Winchester"], "ConvictPleaDate": ["19 June 2002"], "ConvictOffence": ["attempting to damage property", "conspiracy to commit arson", "attempting to damage property being reckless as to whether life would be endangered", "conspiracy to commit burglary"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Winchester"], "Sentence": ["ten years imprisonment", "four years", "six years", "4 years"], "SentServe": ["consecutive"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["Mintern’s home address"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["a footprint, a jacket, a cigarette butt, a trip to New Milton, the Mercedes car chase, and association with two other vehicles, F223 KHO and G900 XFH"], "DefEvidTypeTrial": ["submission of no case"], "PreSentReport": ["data not available"], "AggFactSent": ["destroy evidence"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["ten"], "AppealAgainst": ["against conviction"], "AppealGround": ["the judge erred in any event in not discharging the jury but allowing the case to continue", "the judge erred in not directing an acquittal in respect of all the defendants on the ground that the counts charged against them were duplicitous", "the judge erred in not acceding to the parallel application on behalf of Mintern to find no case to answer on count 4, since the evidence against Hinckley was effectively the same as against him."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["dismissed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["In our judgment there was ample evidence in Mintern’s case to justify the judge’s decision to refuse to direct his acquittal"]}
{"ConvCourtName": ["Crown Court At Winchester"], "ConvictPleaDate": ["2002-06-19"], "ConvictOffence": ["attempting to damage property", "conspiracy to commit arson", "conspiracy to commit burglary", "attempting to damage property being reckless as to whether life would be endangered"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Winchester"], "Sentence": ["four years", "4 years", "six years", "ten years imprisonment"], "SentServe": ["Combination"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Police evidence"], "DefEvidTypeTrial": ["No Case to Answer"], "PreSentReport": ["Don't know"], "AggFactSent": ["destroy evidence"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["10"], "AppealAgainst": ["against conviction"], "AppealGround": ["the judge erred in not acceding to the parallel application on behalf of Mintern to find no case to answer on count 4, since the evidence against Hinckley was effectively the same as against him.", "the judge erred in any event in not discharging the jury but allowing the case to continue", "the judge erred in not directing an acquittal in respect of all the defendants on the ground that the counts charged against them were duplicitous"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["In our judgment there was ample evidence in Mintern’s case to justify the judge’s decision to refuse to direct his acquittal"]}
527
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2024] EWCA Crim 256 No. 202203015 B1 Royal Courts of Justice Friday, 16 February 2024 Before: LADY JUSTICE WHIPPLE MRS JUSTICE STACEY HIS HONOUR JUDGE PICTON REX V ADAM COURTNEY-KASHER REPORTING RESTRICTIONS APPLY: THE SEXUAL OFFENCES (AMENDMENT) ACT 1992 __________ Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] _________ MR G. GATLAND appeared on behalf of the Respondent. ________ JUDGMENT MRS JUSTICE STACEY: 1 The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with s.3 of that Act. It has not been waived or lifted. 2 On 15 September 2022 in the Crown Court at Durham before HHJ Kidd, the applicant (who was then aged 40) was convicted of six counts of indecency with a child contrary to s.1(1) of the Indecency with Children Act 1960 and three counts of rape contrary to s.1(1) of the Sexual Offences Act 1956. 3 On 10 October 2022 the applicant was sentenced to a total of 12 years' imprisonment. Twelve years' imprisonment was imposed on the three counts of rape concurrent to each other and concurrent to 16-month concurrent sentences for the remaining offences. However the sentence was reduced by three years on appeal. On 5 September 2023 the Court of Appeal Criminal Division allowed an appeal against sentence and the sentences imposed on Counts 3, 6 and 7 for rape were quashed and substituted with a sentence of nine years' imprisonment on each count concurrent. The remaining sentences were affirmed. 4 The applicant now renews his application for leave to appeal conviction following refusal by the single judge. It had not been possible for the full court to determine the applicant's renewed application to appeal against conviction on 5 September 2023 when it considered his sentence appeal as it had not received all the documents that the applicant had sent into the criminal appeal office seeking to amend and expand his grounds of appeal. 5 The court now has before it the perfected grounds of appeal against conviction and the applicant's letters to the court dated 11 March, 10 August, 5 September and 1 October 2023, the amended respondent's notice, the addendum respondent's notice and the applicant's response to the respondent's notice. The applications before us are for leave to amend, to add additional grounds and for an extension of time, in which to do so, since the amended proposed further grounds are now out of time. The Facts 6 In September 2020 the complainant contacted the police and told them he had been a victim of sexual abuse as a child some years ago. He gave a video recorded interview in which he stated that the applicant had sexually abused him from April 1997 until August 1999 when he and his family moved away from the area. He said that the abuse fell into three broad categories: occasions when the applicant carried out oral sex on him, occasions when he was forced to carry out oral sex on the applicant and three specific occasions when the applicant anally raped him. 7 The complainant explained that when he was aged seven to nine, he used to play out in the street as part of a larger group of children who all lived locally and the applicant was part of that group. During half-term holidays when his parents were working, the applicant would sexually abuse him. The applicant would undress him and perform oral sex on him and ask him to perform oral sex on the applicant and it progressed to anal rape. The offences occurred in the complainant's bedroom and bathroom while his parents were out. The applicant had told him that they were best pals so he did not need to tell anyone. The abuse stopped when the complainant moved away. 8 The complainant said he did not report the matter because it was not commonplace to report such things, especially for a man, in those days. However, he had written a letter to a close friend of his "GS" in 2014 stating that he had been abused. When he was older, he looked the applicant up on Facebook and found that they had a mutual friend. He also looked up the electoral roll to find out where the applicant was living. 9 In his police interview in October 2020, the applicant denied knowing who the complainant was. He had lived at that address in the same street as the complainant and played football in the street, but did not know who the complainant was as he played with boys around the same age as him. 10 The prosecution case was that the applicant had groomed the complainant by telling him they were best friends, playing football with him and creating a degree of confidence and friendship between them to enable the applicant to sexually assault the complainant in a way that reduced the risk of him complaining. 11 The prosecution relied on four strands of evidence in support of the case: firstly the evidence given by the complainant; secondly the disclosure to the friend in 2014 (given in evidence from GS in a statement that was read) about the letter that the complainant had written to him about being abused by a good friend when he was seven, eight or nine; thirdly, evidence from the complainant's mother, including that she recalled the applicant and his family and that the complainant used to play out in the street at the time with a group of children, including the applicant. She had assumed that the applicant did not have many friends of his own since he played with younger children. She could not remember seeing the applicant in her home, but did remember seeing him in the garden. She did not ever see the complainant and the applicant together by themselves during school holidays, but the complainant would go out and would return for lunch and dinner. The fourth ground was evidence from BW, one the complainant's childhood friends, to whom the complainant had made a disclosure in the autumn of 2020 after contacting him on Facebook and asked him if he remembered the applicant, which he did. 12 The defence case was denial. He did not know the complainant, did not play with him, did not groom him, they did not go to each other's houses and he did not sexually abuse him. The applicant gave evidence that although the address he lived at was correct, his bedroom was nothing as described by the complainant and he did not wear the type of clothes as described by him either. He had no interest in other males. He had girlfriends, his first being when he was 14 or 15. He used to play on the street but only occasionally with the younger children collectively and that started when he was 15 or 16. He had no idea why the allegation was made. The defence read a statement from a former girlfriend of the applicant who confirmed she knew the applicant between the relevant dates and they had dated on a casual basis when she was around 15. 13 The issue for the jury was factual: whether the applicant had an opportunity to commit the acts alleged and, if so, whether he did so or whether the complainant had incorrectly identified the applicant as his abuser. The applicant was unanimously convicted by the jury. 14 Leave was refused by the single judge on the grounds of appeal prepared by counsel which are now renewed by the applicant. Those grounds were that late disclosure and service of material evidence created a situation which was unable to be rectified and caused an unfairness and prejudice to the applicant. The disclosure issues were twofold. Firstly, the naming of the applicant by the complainant in messages with another person, BW, and, secondly, that the defence were unaware until the officer in the case gave evidence that approximately five neighbours had been spoken to but had refused to give statements. 15 It is accepted by the prosecution that there had been a request for disclosure in the defence case statement served in May 2022. The defence had sought any relevant text, Facebook and WhatsApp messages. The prosecution accept that there were five pages of messages between the complainant and his family from 2019 onwards naming the applicant as his abuser when a child which should have been disclosed sooner. They were not disclosed until the day before the trial commenced and they were then admitted as agreed facts by the defence during the course of the defendant's evidence. 16 Although the timing was not ideal, there was no prejudice to the applicant from the late disclosure which explains why defence counsel agreed that they be admitted as agreed facts. It is not said how the defence could or would have been run differently if the information had been provided sooner or what other questions would have been asked of the witnesses. In any event, the complainant as the first witness to be called by the prosecution gave evidence of his naming the applicant as his abuser to his family and told the jury of his searches on Facebook and on the internet to try and ascertain the applicant’s current whereabouts in the evidence he gave to the court. There was no dispute that the messages had been sent, even if the accuracy of the allegations contained in them was in dispute. 17 As to the second ground, the applicant's defence team was on notice six months before the trial on 8 March 2022 that the five neighbours whose names the complainant could remember had been spoken to by the police. It was served in the unused material. They either had no memory, or they did not want to be involved or could not be identified and traced by the police. It was therefore not accurate that the applicant was unaware until the officer gave evidence that five neighbours had been approached by police and that they had not provided any corroborative evidence. But in any event, given that those approached provided neither inculpatory nor exculpatory evidence, there would have been no unfairness or prejudice to the applicant even if the information about their being approached had not been known of until the detective constable gave evidence. 18 For these reasons, the original grounds of appeal perfected by counsel are not reasonably arguable and do not give reasonable grounds to show that the conviction was unsafe. Leave to appeal is refused. The proposed new grounds. 19 In his letters of 18 March, 10 August, 5 September, 1 October 2023 and the response to the respondent's amended notice, the applicant repeats the grounds set out by counsel which we have dealt with already and also raised a number of additional points that can be divided into five headings. (i) Firstly, discrepancies and deficiencies in the evidence that was served. The applicant identifies inconsistencies in the evidence, such as the complainant not accurately describing the layout of the applicant's bedroom. (ii) Secondly, that the photographs used of the applicant in court did not match his photographs on Facebook. (iii) Thirdly, that there were some inconsistencies in the recollection of the prosecution witness BW, a childhood friend, to whom the complainant had later disclosed the abuse. (iv) Fourthly, that the complainant's mother had said that her son was never left alone and that other relations would be there on hand in the holidays and that the complainant stated that the applicant's aunt lived in the same street when she did not. All of which it was said undermined the prosecution case. (v) He also relies on inaccuracies in the complainant's evidence such as that the bathroom door did not have a lock in his house and that there was no room to hide in the cupboard under the stairs. 20 However, these were all matters that were before the jury and were for the jury to assess in considering if they could be sure of the applicant’s guilt. The issue in the case was whether the complainant had correctly identified the applicant and whether the jury was sure of the factual accuracy of the complainant's central allegations, even if some of the details were inaccurate or had been misremembered. The jury was entitled to conclude that the inconsistencies, such as they were, were not material and did not undermine the central allegation and they do not render the conviction unsafe. 21 The second category in the proposed further grounds is that there was a failure to conduct sufficient investigation and the applicant relies on the duty of the prosecution to explore all reasonable lines of investigation, whether they point towards or away from the guilt of a suspect. The police are criticised for not conducting more detailed investigations by, for example, interviewing the applicant's mother and stepfather or going through his mother's diary or asking his mother if she could identify other potential witnesses. A further criticism was of not obtaining the applicant's employment records to identify his shift pattern and his work with the Royal Navy as a possible alibi defence. 22 If the applicant had wanted police assistance in checking particular witnesses or obtaining specific disclosure of documents, they could have and should have been put in the defence case statement and enquiries could then have been made. No names were provided and the police had no knowledge of the individuals. Furthermore, if the names had been relevant, they could have been called by the defence at the trial. The applicant did not raise an alibi defence, but it is not suggested that his work pattern or employment would have made it impossible for him to have committed these offences and, again, these issues were part of the factual matrix for the jury to consider. In any event, the applicant's counsel, Ms Lamb, explored the extent of the police investigation in cross-examination with the police officers before the jury. The point was therefore before the jury to take into account in deciding if they were sure of guilt. 23 We appreciate the difficulties the applicant has in prison, the toll that his separation from his wife and three young children has had on him and the difficulties that they are experiencing because of his conviction and sentence. We also accept that it is difficult when matters such as these are raised many years after they have occurred. But nothing in the grounds put forward either by trial counsel or by the applicant as a litigant in person provide arguable grounds that the conviction was unsafe. The jury had a careful direction on the impact of delay and the disadvantage this may put to a defendant. 24 We therefore refuse leave to appeal and we also refuse leave to amend the notice of appeal to add additional grounds. It is not in the interests of justice to grant the amendment application since, if granted, none of the proposed further grounds have any prospect of success. For the same reason, we also refuse the extension of time needed. The application is refused. __________
{"ConvCourtName": ["Crown Court at Durham"], "ConvictPleaDate": ["15 September 2022"], "ConvictOffence": ["indecency with a child", "rape"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Durham"], "Sentence": ["12 years' imprisonment", "16-month concurrent sentences"], "SentServe": ["concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["his"], "OffAgeOffence": ["40"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["lived at that address in the same street as the complainant"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["all lived locally"], "VictimType": ["the complainant"], "VicNum": ["the complainant"], "VicSex": ["he"], "VicAgeOffence": ["seven to nine"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["lived at that address in the same street as the complainant"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["evidence from GS in a statement", "video recorded interview"], "DefEvidTypeTrial": ["Copy link to this paragraphThe defence case was denial."], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["applicant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["leave to appeal conviction"], "AppealGround": ["Those grounds were that late disclosure and service of material evidence created a situation which was unable to be rectified and caused an unfairness and prejudice to the applicant."], "SentGuideWhich": ["Sexual Offences Act 1956", "Sexual Offences (Amendment) Act 1992", "Indecency with Children Act 1960"], "AppealOutcome": ["We therefore refuse leave to appeal and we also refuse leave to amend the notice"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["But nothing in the grounds put forward either by trial counsel or by the applicant as a litigant in person provide arguable grounds that the conviction was unsafe."]}
{"ConvCourtName": ["Crown Court At Durham"], "ConvictPleaDate": ["2022-09-15"], "ConvictOffence": ["rape", "indecency with a child"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Durham"], "Sentence": ["16-month concurrent sentences", "12 years' imprisonment"], "SentServe": ["Concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know", "40"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1 of 1"], "VicSex": ["All Male"], "VicAgeOffence": ["7-9"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Witnesses", "Digital evidence"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Other"], "AppealGround": ["Those grounds were that late disclosure and service of material evidence created a situation which was unable to be rectified and caused an unfairness and prejudice to the applicant."], "SentGuideWhich": ["Sexual Offences Act 1956", "Indecency with Children Act 1960", "Sexual Offences (Amendment) Act 1992"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["But nothing in the grounds put forward either by trial counsel or by the applicant as a litigant in person provide arguable grounds that the conviction was unsafe."]}
67
Neutral Citation Number: [2013] EWCA Crim 2636 No. 2012/01094/C3 & 2012/01054/C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 12 December 2013 B e f o r e: LORD JUSTICE LAWS MRS JUSTICE THIRLWALL DBE and THE RECORDER OF MAIDSTONE ( His Honour Judge Carey ) ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - - - - R E G I N A - v - PHILIP HAMMOND ANDREW RYBAK - - - - - - - - - - - - - - - - - - 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 F R Holland QC appeared on behalf of the Applicant Hammond Miss R Brander appeared on behalf of the Appellant Rybak Mr M Chawla QC appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - J U D G M E N T Thursday 12 December 2013 LORD JUSTICE LAWS: 1. On 25 January 2012 after a 64 day trial at the Southwark Crown Court before Her Honour Judge Taylor and a jury the appellant Rybak was convicted on five counts of conspiracy to corrupt. The applicant Hammond was convicted on four counts (counts 1 and 3-5). On 31 January 2012 Rybak was sentenced to five years' imprisonment and Hammond to three years' imprisonment. Both were disqualified from being a company director for ten years. 2. There were four co-accused. One, Marchment, has not been apprehended. It appears he is in the Philippines with which the United Kingdom has no extradition treaty. Saunders was convicted on counts 1-3 and 5 and was sentenced to three and a half years' imprisonment. Smith was convicted on count 5 and received a suspended sentence. The jury were unable to reach a verdict in respect of Storey. After the Crown indicated that they would not seek a retrial, he was acquitted on the judge's direction. 3. Rybak appeals against his conviction on one ground (ground 3) by leave of the single judge. He seeks to renew ground 2 after refusal by the single judge. He does not seek to renew the remaining ground 1. Hammond renews his application for leave to appeal against conviction after refusal by the single judge. He also seeks to advance a fresh ground (Rybak's ground 3 on which leave has been granted). 4. The Crown case was that the defendants, including Marchment, were involved in corrupt contracts in the context of five projects in the international oil and gas engineering industry. In each project one or more of the defendants was employed by the procurement company acting on behalf of the company which was commissioning the project. For count 1 the defendant so employed was Saunders. For counts 2 and 3 it was Saunders and Marchment. For count 4 it was Marchment. For count 5 it was the appellant Rybak and Saunders. The insiders within the procurement companies then passed on confidential to others: counts 1, 3 and 4 to the two appellants (as we may call them); count 2 to Rybak; count 5 to Smith and, allegedly, Storey. The recipients of the confidential information then passed it on to one or more of the companies bidding for the contract. In return they sought payment of a so-called commission (generally between three and six per cent of the value of the contract). Sometimes this was paid, sometimes not. In many cases the appellants used false names in the course of this process. 5. The defence case, in general terms, was that there was no corruption. Whatever money made its way back to the insiders in the procurement companies was in repayment of previous loans. Rybak did not give evidence. Hammond did. 6. Just before the close of the Crown case (day 25 of the trial) it was indicated in open court that Rybak wished to dispense with the services of his leading and junior counsel, and from day 26 he represented himself. This circumstance has figured large in the argument before us. 7. We turn first to the sole ground on which the single judge gave leave to appeal (Rybak's ground 3). The allegation is that the proceedings were a nullity for want of compliance with section 2(3) of the Prevention of Corruption Act 1906. Section 2 of the 1906 statute so far as relevant provides: "(1) A prosecution for an offence under this Act shall not be instituted without the consent, in England of the Attorney-General .... .... (3) Every information for any offence under this Act shall be upon oath. ...." 8. The appellants were not charged with a substantive offence under the 1906 Act. As we have indicated, they were charged with conspiracy to commit such an offence, contrary to section 1(1) of the Criminal Law Act 1977. The Attorney-General's consent was given to the case being brought, but the submission is that the requirement of an oath in section 2(3) must apply to such a charge, just as it would to a substantive charge under the 1906 Act. The argument has been re-cast somewhat in her skeleton argument by Miss Brander for Rybak, perfected on 6 December 2013. The essential steps, which have been elaborated in the course of her clear and helpful oral submissions this morning, are as follows: (1) The requirement for the Attorney's consent imposed by section 2(1) of the 1906 Act applies also to a charge of conspiracy to commit an offence under the Act: see R v Attorney-General, ex parte Rockall [2000] 1 WLR 882 , 884, and in particular section 4(3) of the Criminal Law Act 1977, upon which Miss Brander placed emphasis this morning. Section 4(3) provides: "Any prohibition by or under any enactment on the institution of proceedings for any offence which is not a summary offence otherwise than by, or on behalf or with the consent of, the Director of Public Prosecutions or any other person shall apply also in relation to proceedings under section 1 above for conspiracy to commit that offence." So it is submitted that the requirement of an oath under section 2(3) must likewise apply to a conspiracy charge. The premise of the argument is that section 2(3) constitutes or includes a prohibition within the meaning of section 4(3) of the statute of 1977. (2) Miss Brander refers to R v Nusrat Ghafar [2009] EWCA Crim 2270 . There it was held that a conviction for a substantive offence contrary to section 1 of the 1906 Act was a nullity for failure to comply with the oath requirement of section 2(3). In fact, the case was listed for an appeal against sentence, but the Crown announced that section 2(3) had not been complied with and invited this court to quash the conviction. Mr Holland QC, who appears on behalf of Hammond, indicated that the matter did not arise entirely ex improviso; the Crown may have had some time to think about it. That may be so. (3) Given steps (1) and (2), it is submitted that a want of compliance with section 2(3) will vitiate a conspiracy conviction. (4) Miss Brander draws attention in her written argument to the procedural history of offences under the 1906 Act. She has referred this morning also to The Royal Commission on Criminal Procedure of 1981. Offences contrary to section 1 were misdemeanours, so that there was no power of summary arrest, and all prosecutions had to be started by way of information. That was the position in 1906. The distinction between "felonies" and "misdemeanours" was abolished by section 1 of the Criminal Law Act 1967, but proceedings for 1906 Act offences still had to be started by information because the power of arrest without warrant applied only in relation to offences carrying a penalty of five or more years' imprisonment. 1906 Act offences carried a maximum of two years' imprisonment. That was so until the maximum was increased to seven years' imprisonment by section 7 of the Criminal Justice Act 1988. There are other changes also that were effected by the Police and Criminal Evidence Act 1984. 9. Miss Brander's overall submission in relation to this history is that these modernisations cannot have been intended to remove what she submits is the safeguard imposed and guaranteed by section 2(3) of the 1906 Act. 10. With respect to her submissions, which have exhibited a conspicuous ability, we do not accept these arguments for the following reasons: (1) There is, in our judgment, an important contrast between section 2(1) and (3) of the 1906 Act. Section 2(1) refers to a prosecution for an offence under the Act. Section 2(3) refers only to a case where an information is laid, not necessarily to every prosecution, whether or not in 1906 every case under the Act must have been commenced by information - and we well understand why Miss Brander says that is so. That is not now the case, and was not the case when the appellants were prosecuted. Had Parliament intended that the provision of section 2(3) should follow the modernisations of criminal procedure which succeeded 1906 and had the effect that only some cases under that Act might be started by information, why then Parliament could well have so enacted. But it did not. It seems to us that the conclusion is that the scope or reach of section 2(3) extends only to cases where a prosecution was started by an information properly so-called. In this case the appellants had been arrested under the powers of the Police and Criminal Evidence Act. It was not a case where any information was involved. This aspect was absent from Nusrat Ghafar . (2) It seems to us, with respect to Miss Brander, that the requirement of an oath in section 2(3) does not constitute a prohibition within section 4(3) of the Criminal Law Act 1977. That is so, first and foremost, as a matter of language. Had Parliament intended that the section 4(3) provision should apply to a case in which the procedural requirement was not a prohibition but rather the need for an oath, as in section 2(3), again that could have been so provided. (3) We note the reference in the 1981 Royal Commission on Criminal Procedure (the Philips Commission) at paragraph 182: "Where proceedings follow an arrest without warrant and the accused is charged by the police there is, as a matter of law, an 'information' which has been 'laid'. This, however, is a legal fiction." Miss Brander deployed the terms of The Royal Commission in order to show that in substance and reality the laying of an information was generally a necessary step in the institution of criminal proceedings. But that is so, as this passage demonstrates, only to the extent that in some, indeed many, cases the information has to be regarded (as is there stated) as a legal fiction. For present purposes the point is that section 2(3) must surely refer, and refer only, to a case where there is, in fact not fiction, an information. We see no warrant for supposing that the section 2(3) requirement should be read as applying in any case where an information as such was not laid. In all these circumstances it is unnecessary to go into the question whether section 123 of the Magistrates' Courts Act 1980 bites upon the case. Out of deference to Miss Brander's argument - she rightly drew this provision to our attention - we will set out its brief terms: "(1) No objection shall be allowed to any information or complaint, or to any summons or warrant to procure the presence of the defendant, for any defect in it in substance or in form, or for any variance between it and the evidence adduced on behalf of the prosecutor or complainant at the hearing of the information or complaint." There must be strong arguments to the effect that a failure to fulfil section 2(3) of the 1906 Act would be a defect in substance to which section 123 would apply. The matter may not be entirely beyond doubt, not least given the authority cited by Miss Brander: New Southgate Metals Ltd v London Borough of Islington [1996] Crim LR 334. 11. For all these reasons, in our judgment, section 2(3) of the 1906 Act has no application to this case. 12. Before leaving the point, we should note that Mr Holland QC has submitted that Hammond should have had leave on the section 2(3) point (at any rate once Rybak was granted leave) so that Hammond would have been supported by public funds and his counsel could properly and in good time consider this issue relating to section 2(3). Mr Holland submits that Article 6 of the European Convention on Human Rights so requires. 13. However, in our judgment there is nothing whatever that could sensibly be added to Miss Brander's skilled and comprehensive submissions. Had Mr Holland this morning sought an adjournment to consider the point further for himself, there would, with respect to him, have been no basis for it. There is nothing in this complaint. There was plainly no violation of the Convention. 14. We turn to Rybak's ground 2 on which the single judge refused leave. It is said that the trial judge failed adequately to ensure that Rybak was not unduly prejudiced by his lack of representation from day 26 of the trial onwards. It is said that the judge in particular failed to explain three matters to the jury at the first opportunity after Rybak began to represent himself. They were: (1) that self-representation was a course properly open to any defendant; (2) that the jury should bear in mind the difficulty of properly presenting a defence; and (3) that the relevant background to the appellant's decision to represent himself should have been explained. It is this last point upon which the argument has focused this morning. 15. As we have indicated, the jury were told just before the end of the Crown case on day 25 that Rybak wished to dispense with the services of his leading and junior counsel. The case was adjourned overnight for him to consider his position. The following day there was an extended discussion between Rybak and the judge about the difficulties of self-representation as to which the judge provided Rybak with her written note (see transcript day 26 page 10, line 3). He was given time specifically to consider whether he wished to represent himself or, in the event, retain his legal team, and also whether he would choose to give evidence. We have read the whole transcript for day 26 (page 9, line 15 to page 32, line 23) in which, at length, Rybak affirmed his decision to dispense with counsel. The judge concluded (page 32, lines 20-23) that he should not have the adjournment that would be necessary for the appointment of new counsel. 16. The judge's refusal of his application for fresh counsel was the subject of Rybak's first ground of appeal, which has not been renewed following refusal by the single judge. However, the discussion with the judge remains relevant to ground 2 because, in our judgment, it exemplifies the care taken by the trial judge to see that Rybak was fairly treated in the event that he would be representing himself. So, indeed, do the exchanges the day before. This following passage from day 26 (page 11, line 18) illustrates the point. The judge said: "I explained to you yesterday the effects and consequences of not giving evidence and I am going to make clear that that will be your only opportunity to give evidence, that is to say, to set out your version of events or give any explanation of those events or any documents. You will not be able to change your mind and give evidence after other defendants. Further, a closing speech when you have not given evidence is not a chance to explain or give evidence about what others have said or adopt what they have said or to give explanations about the documents in evidence in the trial. You will be limited to arguments and comment, which is not the same as evidence, on the evidence which has been given in the course of the trial. That requires skill, and the serious risk you run is that, if you do not have these skills, you may do your case harm. You will be provided, if you choose to do that, with the daily transcripts of evidence to assist you and any further documents which are provided in the remainder of the trial and in due course, once the evidence is completed, I will give further consideration to any guidance or assistance you may need as to your closing speech. Now, I have said that because it expands a little on what I said yesterday. I am going to give you a copy of that now so that you have it in writing and you can consider it. I am going to ask you if you need time to consider your decision, bearing in mind what has just taken place, and whether or not you want to say anything about that and the timing of any provision of this additional information. MR RYBAK: There are a few things I would like to say. First of all is that my reliance on my speech, just to clarify again, is not to provide any fresh evidence at all, merely to comment on the evidence which has been introduced into the court including such evidence as I elicit during cross-examination, and to invite the jury to infer or to conclude at their option what may in fact be an interpretation of that evidence. I don't intend to say, 'This is what happened', or, 'I believe that means this'. I am going to invite the jury to conclude and make their own conclusions from the evidence which I shall elicit. The only difference is that it would mean that my cross-examination will - no intention of making any allegations. It will just be a question of eliciting perhaps more detail in order to have the full picture that I need to be able to put to the jury, if you follow - JUDGE TAYLOR: You are entitled to ask questions if you represent yourself - MR RYBAK: Yes. JUDGE TAYLOR: - of the other defendants in a proper manner." That passage exemplifies not only the care taken by the judge to be helpful to Rybak, but also the intellectual capacity to pick up and absorb the points that was demonstrated by Rybak. So does his careful consideration of whether he should give evidence, for which he was given time (see day 26, page 43, line 12), and also his applications for disclosure (see page 43, line 24 and following). All of this took place in the absence of the jury. 17. At length the jury returned to court. The judge addressed them about the fact that Rybak now proposed to represent himself. This passage is important for Miss Brander's principal argument addressed to us this morning (day 26, page 65, line 22): "JUDGE TAYLOR: Members of the jury, just to let you know what the situation is, the defendant Mr Rybak himself has decided to dispense with the services of his counsel. He was given time to consider and I have refused his application to have alternative counsel and, therefore, from now on he is going to represent himself. It has been explained to him that he will be subject to the same rules of evidence and procedure as counsel would have been had they continued to represent him and which apply to all the other defendants and the prosecution in this case. It has also been explained to him that my role in this case is to ensure that the trial is fair, and that there may be some occasions when he needs some guidance so that he complies with those rules, so as to ensure a fair trial not only for himself but also the other defendants and the prosecution. He has been provided with all the materials counsel have had on his behalf and will continue to be provided with them throughout the trial. We are going to adjourn now until tomorrow morning to allow him best to consider how to present his case." 18. As is apparent, that passage includes no explanation of why Rybak had dispensed with his counsel. This is the focus of Miss Brander's complaint this morning. 19. Mr Holland, acting for Hammond, had raised a concern (see day 26, page 52, line 20 to page 52, line 10) to the effect that the jury might assume that Rybak was guilty but unwilling to plead guilty unless something was said about the reason for his counsel's absence; and Hammond was, of course, closely associated with Rybak. This suggestion is echoed in the submissions supporting this ground of appeal in which Mr Holland has vigorously joined. 20. We consider, however, that this concern is in the end misplaced. First, it was not clear whether Rybak would give evidence or what precise course his case would take. That raises some uncertainty as to the wisdom of including explanations of the kind suggested in what was to be said to the jury on day 26. Mr Rybak, for all anyone knew, might wish to give his own account to the jury of his dispensing with counsel. 21. Secondly, and we think more important, an explanation by the judge as to counsel's sudden absence would, as it seems to us, inevitably have invited the jury to speculate as to why counsel were dismissed. Mr Holland has submitted that in the circumstances of this case no harm might be done. But this seems to us to be a case where a decision to give some such explanation would in the circumstances float at least as many dangers as saying nothing at all. 22. Further, it is to be noted that in the summing-up the judge said this (day 50, page 37, lines 17-25): ".... you are aware at the close of the prosecution case that Mr Rybak decided to dispense with his counsel. He is entitled to do that and you should not speculate as to the reasons and it is not something which you should hold against him. He was refused alternative representation and as a result has been representing himself. You should treat his case in the same fair way as if he had been represented and in the same way as the other defendants." Of course, something like that might have been said by the judge at an earlier stage. Certainly it was entirely appropriate that it should be said in the summing-up, by which time manifestly the evidence was complete, as were counsel's speeches. 23. It is, it seems to us, quite clear from the learning on this subject (see R v De Oliveira [1997] Crim LR 600) that the directions to be given to the jury where a defendant chooses to be, or becomes, unrepresented are very much to be tailored to the particular case. No doubt there were different ways of dealing with the matter. The course taken by the judge cannot, in our judgment, be said to undermine the safety of Rybak's conviction. Although the judge did not spell out in terms the difficulties faced by a defendant acting in person, it is entirely plain that she was at pains to ensure that he was not prejudiced. She invited him to provide her with relevant documents in advance of his cross-examining a co-defendant so that she might warn him of any issues of admissibility. The jury were told that there would be occasions when he would need guidance to comply with proper procedures. They and the judge were, we emphasise, dealing with an intelligent and resourceful defendant. Thus we do not accept (see paragraph 55 of Miss Brander's skeleton argument) that Rybak was put to any prejudicial difficulty in relation to the admissibility of documents which he wished to put to the co-defendant Saunders. Their admissibility was discussed in the absence of the jury. Rybak was given careful and detailed advice - in the absence of the jury. Mr Holland (acting for Hammond) plainly participated in these discussions, with no prejudice that we can see to either Rybak or to Hammond. 24. Rybak was courteously assisted about other matters. The judge invited him to let her have a copy of his draft closing speech. He declined. He was given a non-sitting day to finalise it. The judge hoped to minimise any necessary interruptions. In the event, he spoke for six hours. The judge had to interrupt on many occasions to remind him not to give evidence. He had been very carefully warned about that. The judge acted entirely properly. 25. Finally, in relation to the closing speech the judge was, it seems to us, quite entitled to indicate, as she did (on the second day of his speech) that he should draw it to a close by lunchtime that day. No doubt Rybak was under some strain in this long and complex trial. But he was carefully and courteously assisted by the judge in acting as a defendant in person, and that was, of course, wholly his own choice. 26. On the specific point that it would have been better to give an explanation to the jury as to why Rybak's counsel's services had been dispensed with, we cannot conclude that the judge's decision not to go down that route in the least impedes the safety of Rybak's conviction. 27. We turn to Hammond's application. So far as he seeks to rely on Rybak's ground relating to the 1906 Act, we have already dismissed that. 28. Hammond's first ground of appeal is to the effect that the judge failed to order disclosure in relation to the alleged corporate bad character of the procurement companies. 29. The third ground of appeal is a complaint that the judge misdirected the jury in relation to the "Ecodyne admission". 30. It is unnecessary for us to go into these two grounds because Mr Holland has, fairly and frankly, told us in terms that they do not stand on their own. They are consequences of the circumstances that arose by reason of the fact that Rybak represented himself. 31. What remains live is Hammond's second ground of appeal in which it is said that his trial was unfair because his defence was undermined or prejudiced by the conduct of Rybak's case when the latter acted in person. 32. Hammond's case was that he was an outsider to the industry and had learnt all about it from Rybak. A number of complaints are made on his behalf. At one stage the judge held an ex parte hearing with only Rybak and his then counsel present. The fact that Rybak was not allowed fresh counsel is relied on (at any rate in writing) by Mr Holland, as is the fact that the jury were not given an explanation of why Rybak had dismissed his counsel. We have already said that Mr Holland participated in this part of the submissions advanced by Miss Brander and indeed, as in her case, it was the focus of his argument this morning. Particular attention is drawn to the fact that, during the prosecution case, Rybak's counsel had conceded confidentiality and did not explore industry practice. As Mr Holland put it this morning, there was at any rate a difference of view between Rybak and his leading counsel as to how the case was to be put. Mr Holland supports Miss Brander's submission that an explanation should have been given to the jury as to why counsel's services had been dispensed with. We have already indicated that we regard such a course as tantamount to an invitation to the jury to speculate. The eventuality of a hearing in chambers, without Mr Holland being present, or the scope of legal professional privilege, upon both of which Mr Holland has briefly addressed us this morning, do not in either case diminish that conclusion. It is clear to us - and indeed Mr Holland accepts - that he was able to cross-examine the prosecution witnesses as he chose. It does not seem to us that the fact that Hammond's case was that he was a newcomer or an outsider and had learnt what he knew from Rybak is any inhibition upon the cross-examination of prosecution witnesses as to whether or not, in truth, the information being passed was confidential. 33. As we have said, the judge acted perfectly properly throughout in dealing with Rybak as a defendant in person. Moreover, it is important from Hammond's point of view to bear in mind that Rybak was only ever permitted to act in accordance with the rules of evidence. Hammond, for his own part, was able to give evidence that he was an industry outsider and relied on Rybak. 34. The reality here is that Hammond was in the same position as any co-defendant in a multi-handed conspiracy trial. No doubt there were difficulties; there very frequently are. It is perhaps to be noted that Mr Holland, entirely properly, sought to undermine Rybak in his final speech. In addition, as we have already indicated, it was open to him to cross-examine the Crown witnesses as he thought fit. 35. We do not for a moment suggest that the task of counsel acting for Hammond was in any sense an easy one. Where, however, we are clear is in our conclusion that the passage of events relating to Rybak and his decision to represent himself from day 26 does not in the least degree undermine the safety of Hammond's conviction. 36. Accordingly, Hammond's applications are refused, and Rybak's appeal is dismissed. MR HOLLAND: My Lord, may I rise on a slightly self-interest basis to ask whether my Lords would grant a representation order for today on the technical grounds? ( The court conferred ) LORD JUSTICE LAWS: As a tribute to your charm and to nothing else, Mr Holland, we will accede to that application. MR HOLLAND: Thank you very much, my Lord.
{"ConvCourtName": ["Southwark Crown Court"], "ConvictPleaDate": ["25 January 2012"], "ConvictOffence": ["conspiracy to corrupt"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Southwark Crown Court"], "Sentence": ["Rybak was sentenced to five years' imprisonment and Hammond to three years' imprisonment. Both were disqualified from being a company director for ten years."], "SentServe": ["convicted on four counts"], "WhatAncillary": ["disqualified from being a company director for ten years."], "OffSex": ["his"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["employed"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["witnesses", "documents in evidence"], "DefEvidTypeTrial": ["documents in evidence", "there was no corruption"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Applicant"], "CoDefAccNum": ["four"], "AppealAgainst": ["against his conviction"], "AppealGround": ["the proceedings were a nullity for want of compliance with section 2(3) of the Prevention of Corruption Act 1906"], "SentGuideWhich": ["section 123 of the Magistrates' Courts Act 1980", "section 1 of the Criminal Law Act 1967", "section 2(3) of the Prevention of Corruption Act 1906", "Police and Criminal Evidence Act 1984", "section 7 of the Criminal Justice Act 1988", "section 1(1) of the Criminal Law Act 1977", "Article 6 of the European Convention on Human Rights"], "AppealOutcome": ["Hammond's applications are refused, and Rybak's appeal is dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we cannot conclude that the judge's decision not to go down that route in the least impedes the safety of Rybak's conviction."]}
{"ConvCourtName": ["Southwark Crown Court"], "ConvictPleaDate": ["2012-01-25"], "ConvictOffence": ["conspiracy to corrupt"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Southwark Crown Court"], "Sentence": ["Rybak was sentenced to five years' imprisonment and Hammond to three years' imprisonment. Both were disqualified from being a company director for ten years."], "SentServe": ["Concurrent"], "WhatAncillary": ["disqualified from being a company director for ten years."], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["witnesses", "documents in evidence"], "DefEvidTypeTrial": ["documents in evidence", "Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["4"], "AppealAgainst": ["against his conviction"], "AppealGround": ["the proceedings were a nullity for want of compliance with section 2(3) of the Prevention of Corruption Act 1906"], "SentGuideWhich": ["Article 6 of the European Convention on Human Rights", "section 123 of the Magistrates' Courts Act 1980", "Police and Criminal Evidence Act 1984", "section 7 of the Criminal Justice Act 1988", "section 1 of the Criminal Law Act 1967", "section 1(1) of the Criminal Law Act 1977", "section 2(3) of the Prevention of Corruption Act 1906"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we cannot conclude that the judge's decision not to go down that route in the least impedes the safety of Rybak's conviction."]}
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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 [2021] EWCA Crim 523 CASE NO 202002922/A4 Royal Courts of Justice Strand London WC2A 2LL Wednesday 24 March 2021 LORD JUSTICE DINGEMANS MR JUSTICE SPENCER HIS HONOUR JUDGE PATRICK FIELD QC (Sitting as a Judge of the CACD) REGINA V MARK ANTHONY ZOTH Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) NON-COUNSEL APPLICATION J U D G M E N T 1. MR JUSTICE SPENCER: This is a renewed application for leave to appeal against sentence, following refusal by the single judge. 2. On 23 October 2020 in the Crown Court at Preston, the appellant (now aged 33) was sentenced by His Honour Judge Knowles QC to a total of 28 months' imprisonment made up as follows. For an offence of having an article with a blade or point contrary to section 139(1) of the Criminal Justice Act 1988, the sentence was 16 months' imprisonment. There had been a late plea of guilty to that offence. For an offence of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861, there was a sentence of 9 months' imprisonment consecutive. For a racially aggravated offence of causing harassment, alarm or distress, contrary to sections 28 and 31 of the Crime and Disorder Act 1988 the sentence was 3 months' imprisonment, again consecutive. These latter two offences had been committed while on bail for the first offence. The applicant had been committed for sentence to the Crown Court in respect of those two offences having entered a guilty plea in the Magistrates' Court for which he received full credit. 3. The first offence in time was committed on 18 January 2019. The appellant ordered a taxi to take him from his home in Troy Street, Blackburn, to The Farthings public house. During the journey the applicant told the taxi-driver that he had had an argument with someone at the public house and was going back there to stab that person. The applicant was sitting in the front passenger seat. The taxi-driver could see that the applicant was hiding something down his left side. The applicant then produced a knife and showed it to the taxi-driver. It was a large kitchen knife with a blade about 8 inches long. The taxi-driver tried to dissuade the applicant from using it. He pleaded with him not to do so. At the end of the journey the applicant paid the fare, got out of the taxi and walked towards the public house. The taxi-driver was so concerned that he telephoned the police to report what had happened. 4. Police officers attended the applicant's home address where they found the applicant and the knife. In interview he denied that he had produced the knife in the car. He was bailed. He appeared at the Magistrates' Court on 31 October 2019 and was sent for trial to the Crown Court. At a hearing in the Crown Court on 5 December he pleaded not guilty. The case was adjourned for trial and he was granted unconditional bail. 5. The remaining two offences were committed whilst on bail, just over two weeks later on 23 December 2019. The applicant had been at the home of a man called Ward; another man, Michael Seddon, was present. They had all been drinking together throughout the day. At one stage the applicant and Seddon argued over some missing alcohol. The police were called and the applicant was required to leave. Later the applicant returned to the address and became verbally abusive towards Ward. Seddon intervened and got the applicant in a headlock. The applicant twisted himself out of the headlock. He bit Seddon on the left cheek and punched him to the head five or six times. Police officers attended again and arrested the applicant as he was leaving the address. As he was being taken to the police van, and for a second time in the custody suite, the applicant racially abused PC Ahmed calling him a "nigger" and "a fucking Paki". In interview the applicant admitted these offences, saying he was drunk at the time. 6. There was a victim personal statement from the police officer. He had been particularly upset and distressed by the racist abuse. 7. The applicant had a very bad record for offences of possessing bladed articles and offensive weapons, with three separate convictions in 2008, 2010 and 2018. In 2008 the weapon was a meat cleaver which he was brandishing, making threats to people he had overheard making disparaging comments about him at a party. In 2010 the weapon was a knife. In 2018 he armed himself with a kitchen knife when he found he was being chased after causing criminal damage to a car. The pre-sentence report described these offences as bearing "stark similarities" to the current offence, demonstrating that the applicant would intentionally arm himself with a knife or a weapon as a means of threatening others with whom he felt aggrieved, or as a means of perceived self-defence. 8. In passing sentence the judge said that on this occasion the applicant had armed himself with a knife and booked a taxi with the express purpose of going, in drink, to stab a man in a public house. That is what he told the taxi-driver he intended to do, showing him the knife. Under the relevant Sentencing Council Guideline there was higher culpability because it was a bladed article and category 2 harm. The starting point under the guideline was 6 months and the range up to 12 months' custody, but the judge concluded that the following aggravating features took the offence to the very top of the range and beyond: first and foremost the applicant's previous convictions, particularly for carrying weapons; committing the offence in drink; deliberately arming himself for the purpose of going to the public house and showing the knife to the taxi-driver and not being put off by his pleading to desist. The judge said there would be reduced credit of somewhere between one-tenth and one-fifth. The sentence was 16 months, suggesting that the starting point was in the range of 18 to 20 months after trial. That was by no means excessive in the circumstances. 9. The judge described the biting as a particularly unpleasant form of the offence of assault and the applicant was fortunate that the injury was not much more serious. We have seen ourselves a photograph of the prominent bite wound to the victim's cheek. The offence was aggravated by drink and very seriously aggravated by the fact that it was committed whilst on bail. As a category 2 offence the starting point under the relevant guideline was 26 weeks and the range up to 51 weeks' custody. A sentence above the range would have been justified. The judge allowed credit of one-third; the sentence was 9 months. 10. For the racially aggravated abuse of a police officer doing his duty the sentence was 3 months' imprisonment, again with credit of one-third for the early guilty plea. 11. The judge expressly took into account current prison conditions. He also had regard to the letter the applicant had written expressing his intention to change his ways. The judge took into account the delay. He said in terms that he had regard to totality but each sentence had to be consecutive, making a total of 28 months. 12. The grounds of appeal, settled by counsel who represented the applicant below, focus principally on the sentence for the knife offence in the taxi. It is submitted that the judge was wrong to go above the range of 12 months for category 2. The grounds of appeal did not challenge the sentence for assault occasioning actual bodily harm, nor, as we read it, the racially aggravated disorderly behaviour. It is conceded that consecutive sentences were appropriate but it is said that the totality of the sentence was manifestly excessive. 13. The applicant, in correspondence with the Registrar on renewal of this application, still insists that he had made no mention to the taxi-driver of his intended use of the knife: he had not threatened to use the knife on anyone; he had simply explained to the taxi-driver that he had fallen out with someone at the pub. We observe that if this were true, there would have been no need for the taxi-driver to take the very responsible step of calling the police. 14. In refusing leave the single judge said this: "You were sentenced to 16 months on a late guilty plea for possession of a knife. You had it with you in a taxi when you were in drink. You produced it to the taxi driver and announced to him that you planned to use it on someone in a pub with whom you had fallen out. The threat was credible to the extent that he reported you to the police for making it. You have many previous convictions which reveal in you a propensity to resort to threats and violence and carry offensive weapons when it suits your purpose to do so. The judge was not only right to categorise your crime as falling within category 2A of the relevant guideline but also to find that the circumstances of this case and your terrible history meant that he should sentence outside of the normal range for offences of that category. He explained why he was doing so. The sentences for the offences of assault and racially aggravated harassment are unexceptional. They were committed on bail and against the criminal background to which I have already referred. The total term cannot be said to be manifestly excessive." 15. We entirely agree with that analysis. The total sentence of 28 months' imprisonment was just and proportionate. There is no arguable merit in this appeal and the renewed application 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]
{"ConvCourtName": ["Crown Court at Preston"], "ConvictPleaDate": ["23 October 2020"], "ConvictOffence": ["causing harassment, alarm or distress", "having an article with a blade or point", "assault occasioning actual bodily harm"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["late plea of guilty", "entered a guilty plea in the Magistrates' Court"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Preston"], "Sentence": ["9 months' imprisonment", "16 months' imprisonment", "3 months' imprisonment", "total of 28 months' imprisonment"], "SentServe": ["consecutive"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["home in Troy Street, Blackburn"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["drinking together"], "OffVicRelation": ["data not available"], "VictimType": ["another man, Michael Seddon"], "VicNum": ["another man, Michael Seddon"], "VicSex": ["another man, Michael Seddon"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["drinking together"], "ProsEvidTypeTrial": ["telephoned the police", "wound to the victim's cheek"], "DefEvidTypeTrial": ["In interview he denied that he had produced the knife"], "PreSentReport": ["data not available"], "AggFactSent": ["committing the offence in drink", "carrying weapons", "committed while on bail", "knife", "previous convictions", "deliberately arming himself"], "MitFactSent": ["took into account the delay", "expressing his intention to change his ways"], "VicImpactStatement": ["victim personal statement"], "Appellant": ["appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence"], "AppealGround": ["said that the totality of the sentence was manifestly excessive", "the judge was wrong to go above the range of 12 months for category 2"], "SentGuideWhich": ["28 and 31 of the Crime and Disorder Act 1988", "139(1) of the Criminal Justice Act 1988", "section 47 of the Offences Against the Person Act 1861"], "AppealOutcome": ["refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["total sentence of 28 months' imprisonment was just and proportionate"]}
{"ConvCourtName": ["Crown Court At Preston"], "ConvictPleaDate": ["2020-10-23"], "ConvictOffence": ["causing harassment, alarm or distress", "assault occasioning actual bodily harm", "having an article with a blade or point"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["entered a guilty plea in the Magistrates' Court", "late plea of guilty"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Preston"], "Sentence": ["3 months' imprisonment", "9 months' imprisonment", "16 months' imprisonment", "total of 28 months' imprisonment"], "SentServe": ["Consecutive"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Yes-drinking"], "OffVicRelation": ["Don't know"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Yes-drinking"], "ProsEvidTypeTrial": ["Medical evidence", "Witness"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["deliberately arming himself", "previous convictions", "carrying weapons", "committing the offence in drink", "Weapon/armed", "committed while on bail"], "MitFactSent": ["took into account the delay", "expressing his intention to change his ways"], "VicImpactStatement": ["Yes"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence"], "AppealGround": ["said that the totality of the sentence was manifestly excessive", "the judge was wrong to go above the range of 12 months for category 2"], "SentGuideWhich": ["28 and 31 of the Crime and Disorder Act 1988", "section 47 of the Offences Against the Person Act 1861", "139(1) of the Criminal Justice Act 1988"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["total sentence of 28 months' imprisonment was just and proportionate"]}
168
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 Neutral Citation Number: [2023] EWCA Crim 1204 Case No: 2023/02143/A3 Royal Courts of Justice The Strand London WC2A 2LL Friday 13 th October 2023 B e f o r e: LORD JUSTICE STUART-SMITH MR JUSTICE CHOUDHURY THE RECORDER OF NOTTINGHAM Her Honour Judge Shant KC (Sitting as a Judge of the Court of Appeal Criminal Divisions) ____________________ R E X - v - ANTHONY DOUGLAS WHITELAM ____________________ 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 G A M Purcell appeared on behalf of the Appellant ____________________ J U D G M E N T ____________________ Friday 13 th October 2023 LORD JUSTICE STUART-SMITH: I shall ask Mr Justice Choudhury to give the judgment of the court. MR JUSTICE CHOUDHURY: Introduction 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. No matter relating to the victims shall during their lifetime be included in any publication if it is likely to lead members of the public to identify them as a victim of the offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act . 2. On 10 th March 2023, following a trial in the Crown Court at Derby before His Honour Judge Hurst and a jury, the appellant (then aged 70) was convicted of 13 counts of historic sexual offending against two child complainants, "C1" (who was aged between 8 and 12 at the time of the offending) and "C2" (who was aged between 10 and 14 at the time of the offending). He was acquitted of two counts (counts 11 and 12). 3. On 1 st June 2023, the appellant was sentenced as follows: Count on indictment Offence Pleaded guilty or convicted Sentence Consecutive or Concurrent Maximum Offences against C1 1 & 2 Indecency with a Child, contrary to s.1(1) of the Indecency with Children Act 1960 Convicted 2 years imprisonment Concurrent 2 years 3, 4, 6 Indecent Assault on a Male Person, contrary to s.15(1) of the Sexual Offences Act 1956 Convicted 4 years imprisonment Concurrent 10 years 5 Indecent Assault on a Male Person, contrary to s.15(1) of the Sexual Offences Act 1956 Convicted 4 years imprisonment Consecutive Offences against C2 7, 8, 9 Indecent Assault on a Male Person, contrary to s.15(1) of the Sexual Offences Act 1956 Convicted 7 years imprisonment Concurrent 10 years 10 Indecent Assault on a Male Person, contrary to s.15(1) of the Sexual Offences Act 1956 Convicted 9 years imprisonment 10 years 13 Indecent Assault on a Male Person, contrary to s.15(1) of the Sexual Offences Act 1956 Convicted 6 years imprisonment Concurrent 10 years 14 & 15 Indecent Assault on a Male Person, contrary to s.15(1) of the Sexual Offences Act 1956 Convicted 4 years imprisonment Concurrent 10 years Total Sentence: 13 years imprisonment In addition, a Sexual Harm Prevention Order was imposed until further order. 4. Having been convicted of an offence listed in Schedule 3 to the Sexual Offences Act 2003 , the appellant was required to comply indefinitely with the provisions of Part 2 of the Act (notification to the police). 5. The appellant now appeals against sentence by leave of the single judge. The Background 6. The facts may be stated briefly. The offences against C1 were committed when the appellant was himself a child. In 1966, at the age of 15, the appellant commenced an apprenticeship at Rolls Royce in Derby. C1, who was aged 8 when the offending commenced, used to play on the street near the appellant's home. C1 recalled seeing the appellant, dressed in white Rolls Royce overalls, travel to work from home either by bicycle or by moped. The appellant offered C1 a ride on his bicycle and invited him round to his home. There, in the appellant's bedroom, the appellant encouraged C1 to masturbate him to the point of ejaculation (counts 1 and 2). The appellant also touched C1's penis (counts 3 and 4) and caused him to suck the appellant's penis (counts 5 and 6). The judge accepted C1's evidence that the offending represented by counts 1 to 4 occurred five to eight times over a period of years. Counts 5 and 6 represented two specific occasions. The offending against C1 only ceased in 1971, when he reached the age of 12. 7. C1 did not tell anyone about the abuse until 2018 when, at the age of 59, he disclosed what had happened to his GP and was advised to go to the police. 8. Unbeknownst to C1, the police had already commenced an investigation into allegations of abuse made against the appellant by C2. In 2016, C2 had disclosed to the police that he had been fostered by the appellant between the ages of 10 and 14. C2 described how the appellant (then aged 37 to 40) would come into his room at night and fondle C2's genitals (counts 7 and 8). He would put C2's penis into his mouth (counts 9, 10 and 13). This would occur whilst the appellant's youngest son slept on the lower bunk. Over time, the appellant's abuse of C2 extended to licking C2's anus (counts 14 and 15). C2 would pretend to be asleep, but he was appalled that he could not control his body's reaction to the stimulation, which he did not understand. The appellant used alcohol to facilitate the offending. C2 eventually ran away from home when he was just 14 years old. 9. In Victim Personal Statements, both C1 and C2 described blighted personal lives and suffering from long-term psychological harm. 10. In sentencing the appellant for this historic offending, the judge took account of the maximum sentences, as set out in the table above, which were available for these offences at the time they were committed. He noted that imprisonment was available for the offences at the time, and that the maximum sentence for indecency with a child (counts 1 and 2) was two years' imprisonment. The modern equivalent of that offence was said to be that under section 8 of the Sexual Offences Act 2003 , causing or inciting a child into sexual activity. 11. The maximum sentence for the offence of indecent assault at the time was ten years' imprisonment. The modern equivalent of the offence under counts 3 and 4 (touching C1's penis) was that under section 7 of the 2003 Act , sexual assault of a child under the age of 13. 12. As for counts 5 and 6 (causing C1 to suck the appellant's penis), the modern equivalent was that under section 5 of the 2003 Act , rape of a child under the age of 13. 13. In respect of the offending against C1, the judge also took account of the fact that the appellant himself was a child of between 14 and 17 years of age at the time. He considered the sentencing guidelines for children and young persons. The maximum sentences set out above were those for adult offenders. The judge considered the position as it would have applied to the appellant were he to have been sentenced at or shortly after the offending against C1. 14. As for the offences against C2, the modern equivalent for counts 7 and 8 (touching C2's penis) was that under section 7 of the 2003 Act . For counts 9, 10 and 13 (inserting C2's penis into the appellant's mouth), the modern equivalent was that under section 8 of the 2003 Act . For counts 13, 14 and 15 (licking C2's anus), the modern equivalent was that under section 9 of the 2003 Act . 15. Count 5 was treated as the lead offence in respect of C1. The judge considered the current sentencing guidelines and found that whilst the harm fell into category 3, culpability fell into category A. That was due to the planning involved and the deliberate isolation of the victim by the appellant taking him into his home. 16. The aggravating features included ejaculation and – at least in part – the victim having to leave home. 17. The mitigating features were the appellant's good character (then and now), his young age at the time and his lack of maturity. 18. In relation to C2, the lead offence was taken to be that under count 10, which was found to fall into category 2 for harm and category A for culpability. The latter was due to the use of alcohol to commit the offences, the grooming behaviour and the substantial breach of trust, given the fostering relationship. 19. The aggravating features included: the location of the offence; the presence of another child; and the fact that the victim found it necessary to leave home. 20. The mitigating features included: the appellant's good character (then and now), although we note that this was offending committed against the background of the earlier offending against C1; his exemplary conduct; and his charitable work. 21. Having concluded for the purposes of section 278 of the Sentencing Act 2020 that the appellant was not an offender of particular concern, as he had not been over 18 at the time of the offending against C1, the judge turned to his sentences. He noted that the sentences available as against a person aged 14 and 15 at the time were: approved school for a maximum of three years, or detention for up to three months. By the time he was 16 (in 1968 and 1969), the appellant was also liable to a sentence of Borstal training for a maximum of two years. 22. Having regard to the decision in R v Nazir Ahmed and Others [2023] EWCA Crim 281 , the judge considered that a sentence of Borstal training for two years, which would include two years under supervision, thereafter, was equivalent to a sentence of four years' imprisonment. The judge decided that the appropriate way to structure the sentence would be to impose one sentence for C2 and a consecutive sentence for C1. In so doing, he rejected a submission by counsel on behalf of the appellant that the sentences should run concurrently with each other. The judge proceeded to sentence as follows: "I take count 10 as being the lead offence for [C2]. It is a specimen, but it is the modern equivalent of section 8 (ii)(d) of the Sexual Offences Act 2003 , namely oral penetration of your mouth in your capacity as his foster father to a child in your care. I take into account the prolonged period of the abuse, from the ages of 10 to 14 and the impact that it has had upon him. It seems to me that limiting myself, as I must, to the maximum sentence available at the time of ten years, reminding myself that that is for a single offence and there are numerous offences in this case, the maximum sentence is the appropriate starting point; that is ten years' imprisonment which I discount by one year for mitigation, principally your character, to nine years' imprisonment. There can be no reduction for credit because you did not plead guilty. So, for [C2] on count 10 it is nine years' imprisonment; on count 7, seven years, concurrent; on count 8, seven years, concurrent; on count 9, seven years, concurrent; on count 13, six years, concurrent; on count 14, four years, concurrent; on count 15, four years, concurrent. A total sentence for [C2] of nine years. For [C1] I take count 5, oral rape as it would be described today, as being the lead offence. I discount from the maximum sentence of ten years to reflect not only your age at the time, the sentencing regime at the time and the Sentencing Council's guideline on sentencing of young people. It seems to me that the appropriate sentence, taking all of those matters into account, is four years' imprisonment, concurrent to the nine years making a total sentence of thirteen years. Those four years reflecting, as I have already said, two years of borstal training which seems to me to be the sentence that would have been imposed upon you at the time and knowing that that was not an isolated incident or an adolescent but something that led to the more serious offending involving [C2] in due course. So, four years on count 5; count 1, two years, that is the maximum; count 2, two years, the maximum; count 3, four years; count 4, four years; count 6, four years. All of those concurrent [with] each other and concurrent [with] count 5. So, the total sentence, as I have said, for [C2] and [C1] is thirteen years' imprisonment." The Grounds of Appeal 23. There are two principal grounds of appeal. First, it is said that the sentence of four years' imprisonment in respect of the offending against C1 was wrong in law and manifestly excessive, as the maximum sentence available for a child offender at the time was six months' detention, and that it was incorrect to equate Borstal training with detention to justify a longer custodial sentence. Second, it is said that the overall sentence of nine years' imprisonment on count 10 was manifestly excessive and that by imposing consecutive sentences for counts 5 and 10, the judge gave insufficient consideration to the principle of totality. 24. In developing ground 1, Mr Purcell, who appears for the appellant as he did below, submits that, pursuant to the Criminal Justice Act 1961 and as set out in the table at A8-1325 in the Current Sentencing Practice, the maximum custodial term available at the time was clearly six months. Borstal training was an alternative to detention and could not be treated as equivalent for modern sentencing purposes. Furthermore, it is submitted that the judge erred in his approach by taking a starting point for the modern equivalent offence under section 5 of the 2003 Act of ten years' custody, and then applying a discount for the appellant's age at the time. Instead, it is said that the judge ought to have considered the sentences available at the time. 25. As to ground 2, Mr Purcell submits that the overall sentence was manifestly excessive, when compared to the sentences imposed in other cases. He has referred the court to Attorney General's Refence No 5 of 2001 (R v Terence Culshaw) [2001] EWCA Crim 771 , [2001] 2 Cr App R(s) 106, and Attorney General's Reference No 53 of 2004 (R v Allan Lowe) [2005] 1 Cr App R(S) 61. The submissions in respect of those matters were not developed in oral submissions before us. 26. Finally, Mr Purcell submits that the issue of totality was given insufficient consideration in that the judge appears to have imposed the maximum sentences for the earlier offending against C1 on the basis that, amongst other matters, such offending was not a "childhood lapse". It was suggested that, having regard to totality, a concurrent sentence with an uplift would have been a more appropriate approach. Discussion 27. Mr Purcell's first point, namely that only a sentence of up to six months' custody was available is, in our view, unarguable. In Ahmed it was stated at [31]: "… the approach to a sentence of Borstal training available at the time of offending became common ground before us. In determining what length of custodial sentence should now be imposed to reflect the sentence, which was likely at the time of the offending, a sentence of Borstal training (which would have comprised detention for up to two years, followed by supervision for a further two years) can properly be reflected by a sentence of up to four years' imprisonment. That would reflect current early release provisions." Mr Purcell submits that it was wrong in principle to treat a sentence of Borstal training as equivalent to a term of imprisonment imposed now. He submits that there was no argument about that issue before the court in Ahmed , and that this court should not take the same approach. 28. We do not accept that submission. The judgment in Ahmed was given by a constitution of the Court of Appeal (Criminal Division), that included the Lord Chief Justice, Holroyde VP and William Davis LJ; it provides guidance on, amongst other matters, the approach to be taken in sentencing defendants who were children at the time of the offending and when a different sentencing regime applied. As such, this Court would be slow to treat any part of the judgment in Ahmed as less authoritative on the basis that a matter was “common ground” in that case, Mr Purcell accepts that Borstal training was available as an alternative to detention. There is nothing to suggest that the court would have been bound to opt for detention, as opposed to Borstal. Furthermore, a period of Borstal training was, as the Court of Appeal confirmed in Ahmed , a period of "detention for up to two years, followed by supervision for a further two years". In our view, the modern-day equivalent would be a period of detention in a young offender institution which, although not described as "imprisonment", is still a custodial sentence. If Mr Purcell were correct, then a sentence of imprisonment would not be available in respect of any adult whose offending as a child would at the time of offending have attracted detention in a young offender institution. 29. The Court of Appeal has expressly confirmed that a sentence of Borstal training can properly be reflected by a sentence of up to four years' imprisonment. There was, in our judgment, no error of principle in the judge's approach to this aspect of the sentence. 30. Mr Purcell's next point was that the sentence of four years' imprisonment for count 5 was manifestly excessive. As to this point, the single judge said: "The maximum sentence at the time for indecent assault on a male was ten years at the time of the offending. Given the totality of offending within counts 1 to 6,and taking account of the aggravating and mitigating circumstances as identified by the sentencing judge, it is not reasonably arguable that a sentence of four years (by reference to the borstal equivalent referred to above) was manifestly excessive." Having reviewed the matter afresh, we agree with the single judge. The figure of four years was reflective of the totality of offending under counts 1 to 6. Even if the sentence for count 5 on its own had warranted a sentence that was lower than the maximum available, the judge would have been entitled to uplift that to the maximum, to take account of the other offending and to reflect the overall criminality involved. 31. Whilst the judge, in describing how he reached his sentence, made reference to the maximum for an adult offender and then applied a discount for age, it is clear from a proper reading of the entirety of the sentencing remarks that the justification for imposing the maximum was the multiple offending involved. At 9C of the sentencing remarks, the judge said as follows: "[The] four years [reflected] … two years of borstal training which seems to me to be the sentence that would have been imposed upon you at the time and knowing that that was not an isolated incident [as] an adolescent but something that led to the more serious offending involving [C2] in due course." That approach was entirely consistent, in our view, with that required of the court when faced with historic offending by an offender who was a child at the time, that is to take as its starting point the sentence which it considers was likely to have been imposed at the time: see Ahmed at [32(iii)]. 32. The principle of totality was mentioned by the judge, albeit briefly, when he summarised counsel's submission that the sentences ought to be concurrent. The submission before us is that in deciding to impose consecutive sentences, the judge failed to have sufficient regard to totality; he ought to have stepped back and considered the overall sentence of 13 years' imprisonment and made a downward adjustment from it. 33. We disagree with that submission. It was open to the judge to impose consecutive sentences for this offending against two victims, separated by some 20 years. In some cases where offending occurs both as a child and as an adult, it may be appropriate to treat the adult offending as the lead count and to pass concurrent sentences for the past offending. Such an approach was contemplated in Ahmed , where the court said: "30. Lastly, where the offender has committed offences both as a child and as an adult, it will commonly be the case that the later offending is the most serious aspect of the overall criminality and can be taken as the lead offence(s), with concurrent sentences imposed for the earlier offences. In such circumstances the key considerations for the court are likely to be an assessment of the extent to which the offending as a child aggravates the offending as an adult, and the application of the principle of totality." That does not, however, mandate concurrent sentences in all cases where offending straddles childhood and adulthood. Concurrent sentences may be appropriate where the offending against the same victim crosses an age threshold, or there is some other feature that links the offending over time. Where, however, the offending in adulthood is entirely separate from that committed as a child, it is open to the judge to impose consecutive sentences. 34. It is also submitted that certain observations made by the judge as to the later offending led to him applying the maximum sentence of four years' imprisonment for the offending against C1, and that in so doing the judge failed to have proper regard to the principle of totality. These observations included the judge's views that the earlier offending was not a childhood lapse, but "rather it was the appellant's latent homosexuality being satisfied by the criminal abuses of other people". 35. In so far as the judge took account of the fact that this was not an isolated incident, or a childhood lapse, that was again something that he was entitled to do, as held in Ahmed at [32(vi)]: "32. … vi) The starting point taken in accordance with (iii) above will not necessarily be the end point. Subsequent events may enable the court to be sure that the culpability of the child offender was higher, or lower, than would likely have been apparent at the time of the offending. They may show that an offence was not, as it might have seemed at the time, an isolated lapse by a child, but rather a part of a continuing course of conduct. The passage of time may enable the court to be sure that the harm caused by the offending was greater than would likely have been apparent at that time. Because the court is sentencing an adult, it must have regard to the purposes of sentencing set out in section 57 of the Sentencing Code. In each case, the issue for the court to resolve will be whether there is good reason to impose on the adult a sentence more severe than he would have been likely to have received if he had been sentenced soon after the offence as a child." 36. It is clear that in the present case the judge considered that a sentence of four years' imprisonment was appropriate, in part because the appellant's subsequent offending demonstrated that it was not a childhood lapse and that the culpability was therefore somewhat greater. 37. Having carefully considered the judge's sentencing remarks as a whole and noting that there does not appear to have been any evidence that the appellant's sexuality had anything to do with the offending, we do not agree that the sentence of four years' imprisonment for the earlier offending was reached by reference to that matter. It is a matter that is, unlike the observation that the earlier offending was not an adolescent lapse, notably absent from the judge's reasoning set out at page 9C-D for imposing a sentence of four years' imprisonment. In our judgment, the sentence of four years' imprisonment was neither wrong in principle, nor manifestly excessive. 38. As consecutive sentences were appropriate; we do not consider that there has been any breach of totality principles. A proper application of those principles does not always require a downwards adjustment of the overall sentence whenever such sentences are imposed. Such an adjustment may be appropriate where the various offences form part of a single overall course of offending conduct or were part of a linked series of offences. On the other hand, an adjustment may not be required where, as in the present case, the offences committed as a child and as an adult were wholly distinct. 39. The question in each case is whether the overall sentence was just and proportionate. In the circumstances of this case, where the offending against C1 and C2 was entirely unrelated, the overall sentence of 13 years' imprisonment was, in our judgment, just and proportionate; it was far from being excessive, let alone manifestly so. 40. Accordingly, for these reasons, the appeal against sentence is dismissed. ______________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] ______________________________
{"ConvCourtName": ["Crown Court at Derby"], "ConvictPleaDate": ["10th March 2023"], "ConvictOffence": ["Indecency with a Child", "Indecent Assault on a Male Person"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Derby"], "Sentence": ["13 years imprisonment"], "SentServe": ["Concurrent"], "WhatAncillary": ["Sexual Harm Prevention Order"], "OffSex": ["He"], "OffAgeOffence": ["age of 15,"], "OffJobOffence": ["apprenticeship"], "OffHomeOffence": ["appellant's home."], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["alcohol", "appellant used alcohol"], "OffVicRelation": ["fostered by the appellant"], "VictimType": ["child complainants"], "VicNum": ["child complainants"], "VicSex": ["him"], "VicAgeOffence": ["aged between 8 and 12", "aged between 10 and 14"], "VicJobOffence": ["child complainants"], "VicHomeOffence": ["home"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["disclosed what had happened"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["long-term psychological harm", "victim having to leave home.", "breach of trust"], "MitFactSent": ["young age", "appellant's good character", "exemplary conduct; and his charitable work"], "VicImpactStatement": ["Victim Personal Statements"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence"], "AppealGround": ["wrong in law", "manifestly excessive"], "SentGuideWhich": ["Criminal Justice Act 1961", "Sentencing Act 2020", "Indecency with Children Act 1960", "Sexual Offences (Amendment) Act 1992", "Sexual Offences Act 2003,", "Sexual Offences Act 1956", "principle of totality."], "AppealOutcome": ["appeal against sentence is dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["years' imprisonment was neither wrong in principle, nor manifestly excessive."]}
{"ConvCourtName": ["Crown Court At Derby"], "ConvictPleaDate": ["2023-03-10"], "ConvictOffence": ["Indecent Assault on a Male Person", "Indecency with a Child"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Derby"], "Sentence": ["13 years imprisonment"], "SentServe": ["Combination"], "WhatAncillary": ["Sexual Harm Prevention Order"], "OffSex": ["All Male"], "OffAgeOffence": ["15"], "OffJobOffence": ["Student"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Yes-drinking"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individuals"], "VicNum": ["2"], "VicSex": ["All Male"], "VicAgeOffence": ["10-14", "8-12"], "VicJobOffence": ["Child"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Victim testimony"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["breach of trust", "victim having to leave home.", "long-term psychological harm"], "MitFactSent": ["exemplary conduct; and his charitable work", "young age", "appellant's good character"], "VicImpactStatement": ["Yes"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Sentence (is unduly excessive)"], "AppealGround": ["manifestly excessive", "wrong in law"], "SentGuideWhich": ["Criminal Justice Act 1961", "principle of totality.", "Sentencing Act 2020", "Sexual Offences Act 2003,", "Sexual Offences Act 1956", "Indecency with Children Act 1960", "Sexual Offences (Amendment) Act 1992"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["years' imprisonment was neither wrong in principle, nor manifestly excessive."]}
500
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 202301053/A3 Neutral Citation Number: [2024] EWCA Crim 473 Royal Courts of Justice Strand London WC2A 2LL Wednesday 24 April 2024 Before: LORD JUSTICE MALES MR JUSTICE HILLIARD RECORDER OF NORTHAMPTON (HIS HONOUR JUDGE MAYO) (Sitting as a Judge of the CACD) REX V MICHAEL JAMES PATRICK DERRANE __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR C KNOX appeared on behalf of the Applicant. MR S GRATTAGE appeared on behalf of the Crown. _________ J U D G M E N T 1. MR JUSTICE HILLIARD: On 22 May 2020, in the Crown Court at Leeds, the applicant pleaded guilty to counts 1, 3, 4 and 5 on indictment T20207246. On 13 April 2021, he pleaded guilty to counts 1, 4 and 6 on indictment T20207416. On 10 June 2021, he changed his plea to guilty on count 3 on indictment T20207416 and on 1 March 2023, at the age of 50, he was sentenced as follows. Indictment T20207416, count 1, conspiracy to transfer prohibited weapons, 9 years and 7 months’ imprisonment; count 3, conspiracy to supply heroin, 9 years and 7 months’ imprisonment to run consecutively. Count 4, conspiracy to supply cocaine, 9 years and 7 months’ imprisonment to run concurrently. Count 6, conspiracy to supply cannabis, 3 years and 6 months’ imprisonment to run concurrently; and on indictment T20207246, count 1, possessing a prohibited weapon, 5 years and 3 months’ imprisonment; count 3, possessing ammunition without a certificate, 2 years and 3 months’ imprisonment; count 4, possessing skunk cannabis with intent to supply, 2 years and 6 months’ imprisonment; count 5, possessing ammunition without a certificate, 2 years and 3 months’ imprisonment. All the sentences on that indictment were ordered to run concurrently and thus the total sentence was one of 19 years and 2 months’ imprisonment. 2. He now applies for leave to appeal against sentence and for a representation order after refusal by the single judge. The offences came to light as a result of the interception of material using the EncroChat encrypted messaging service. Conversations between the applicant, the co-accused, Alsi Vata, and others were captured between 10 October 2019 and 13 May 2020. As regards indictment T20207246, on 22 April 2020, at about 10.00 am, the applicant was driving a Volkswagen Caddy van which was being followed by surveillance officers. He drove from Wakefield to Manchester and back, arriving just before 3.25 pm. He met two other men, Mr Orimas and Mr Rokinas. They indicated to the applicant to drive his vehicle into a quiet side road. Mr Orimas entered the passenger door of the van. Mr Rokinas was observed to put a cardboard box into the back of the van. Armed police intervened and all three men were arrested. 3. Police officers searched the van. In a compartment above the driver’s seat, an officer found a bag containing a Grand Power 9 mm pistol and a quantity of bullets. There was also a separate bag containing a quantity of UK banknotes. A cardboard box in the rear of the van was found to contain two bags of herbal cannabis (“skunk”), each weighing 991 grams. The approximate wholesale value of the drugs was £5,000, with a street value of £20,000. 4. The firearm and ammunition were submitted to a laboratory for analysis. The gun was capable of semi-automatic and fully-automatic fire. The bullets were confirmed to be ammunition. They were suitable for use with the gun. A search was carried out at the applicant’s home address, and a further quantity of bullets was recovered. Cash totalling £2,100 was also found. 5. The applicant gave a prepared statement when interviewed, saying that the £2,100 was payment to store the ammunition found at his home address and to deliver the weapon in the box, which he now knew to contain cannabis and cash to a third person whom he could not name for fear of retribution. 6. As regards indictment T20207416, count 1 charged a conspiracy to breach section 5(2A)(b) of the Firearms Act 1968, reflecting an ongoing trade in firearms carried out by the applicant and others. Messages showed the applicant acting as a go-between for those seeking to obtain handguns. He received requests for such weapons from various people, including Vata, identified a source for the weapons (normally a contact in Manchester), brokered the sale and supplied the guns. There were frequent references to delays in obtaining further weapons due to Covid restrictions and indications that the weapons were being imported from Spain. There was evidence that the applicant had previously supplied two handguns to Vata in this way. 7. On 29 March 2020, there was extensive communication between the applicant and Vata. The applicant said that he had access to one silver and one black gun and had another two put down but was unable to access them due to Coronavirus at that time. Through 29 and 30 March, the messages continued as the applicant confirmed the vehicle he would be driving and the location of the meeting. Vata sent him images of bundles of cash. The applicant said, “Okay, as I am driving 300 miles with two straps and it’s very dangerous to be on roads at moment.” 8. The exchange took place on 30 March in St Albans. Vata’s Ford Transit van was captured on ANPR cameras making the journey from Central London to St Albans. The applicant sent a photo of his trainers and trousers to Vata to help him identify him on arrival. After the exchange, Vata travelled to Charlton, where he remained for about 2 hours and then sent messages to the applicant seeking a further weapon, having apparently passed the black gun to an associate of his. The applicant responded that the weapon had already been sold and was in Spain. On 16 April, Vata chased the applicant for “sweets” (meaning bullets). The applicant replied that they were still in Spain and he could not get them sent, pointing out, “You’ve got enough to kill someone, only need one”. 9. In the period from 27 March to 22 April 2020, the applicant supplied at least one further firearm to Vata on 30 March, and was in the course of supplying another, along with ammunition, when he was arrested on 22 April and the weapon seized. That was count 1 on the T20207246 indictment. 10. On 19 April, a deal for the supply of another firearm to an associate of Vata’s collapsed at the last moment when the customer could not arrange collection. The applicant messaged Vata, “Mate, happens all the time with them. I get two or three sales a week. Lucky if one goes through. Don’t worry, it’s gone. His loss.” 11. Count 3 related to the applicant’s ongoing involvement in the supply of multi-kilogram batches of heroin. He kept notes on his mobile phone in relation to all of the classes and types of drugs he was supplying and brokering, amounts owed and courier costs, running to many pages and hundreds of thousands of pounds. EncroChat material from his device showed him regularly contacting people, seeking to obtain “bottoms” (slang for heroin) or offering to supply heroin to others. Several actual supplies were arranged and carried out on 7 April 2020. The applicant messaged a user named “Codfudge”, “Keep the money for the bottoms so that leaves £21,500. I pay my mate that, and as soon as get hold Cov I get sorted. Is that okay?”. There were many further discussions relating to money owing in tens or hundreds of thousands of pounds for heroin. Notes found on the applicant’s mobile phone recorded debts for “bottoms” in the tens of thousands of pounds. His trade in heroin had a wide geographical spread. On 10 April, he told a contact that he needed 10 kilograms of heroin to be delivered to Oxford, London and Leicester, and was brokering a deal with Codfudge to a total value of £187,500. There was also evidence of several more supplies to Nottingham. 12. Count 4 reflected the applicant’s involvement in obtaining and supplying cocaine throughout the period. The chats showed him buying and selling, brokering sales and arranging deliveries of cocaine. On 9 April, the applicant sent a picture of a block of cocaine to nine different contacts on EncroChat and subsequently agreed a sale to one of them. Vata was someone from whom the applicant sought to obtain cocaine and Vata himself was involved in supplying kilogram blocks of the drugs to others. On 12 April, the applicant agreed to obtain cocaine from Vata to be supplied to one of his customers in Nottingham. On 16 April, Vata sent pictures of further blocks to the applicant who said he could not afford them at present because he had taken three similar blocks on credit. 13. Count 6 related to a conspiracy to supply cannabis. When the applicant was arrested on 22 April, he had just collected 2 kilograms of skunk cannabis for onward supply. The supply of those drugs was organised by Vata, who had previously supplied similar drugs to him. The applicant told Vata that his customers were very pleased with the product they had received previously. 14. Between 14 and 17 April, the applicant discussed the purchase of 11 kilograms of cannabis with Vata and on 16 April, Vata told him there was 7 kilograms available for collection from “the usual place”. A supply took place on 16 April, when the applicant and Vata met at an address in Dewsbury. Messages from Vata to the applicant said that there would be 11 not 7. The applicant confirmed that he could “place all the weights okay.” 15. On 21 April 2020, Vata messaged the applicant, “Yes, you’ll be at least 47.3 for dogs and 1K for strap drink” (meaning £47,000 for cannabis and £1,000 being the payment for his moving of the firearm). Later the same day, the applicant complained about delivering items to associates of Vata’s not known to him and highlighted the risk that he was running in doing so whilst on a life licence. 16. Chat evidence showed that the applicant was actively attempting to obtain high quality cannabis throughout and supplied it on when he did. He also discussed a cannabis farm property that he and his business partner had obtained and was ready to go in Northampton. Vata offered to “take the property off your hands as I was the biggest cropper’s biggest client. So I have people in every city”. 17. The applicant was 50 years old at the date of sentence. He had a number of previous convictions, including for offences of dishonesty and violence. In 2001, he was sentenced to 4 years’ imprisonment for blackmail. In 2004, he was sentenced to life imprisonment for an offence of wounding with intent. We have been told that the minimum term was 2 years and 2 months’ imprisonment, but that the applicant was not initially released on licence until 2012. 18. The applicant told the author of a pre-sentence report that he had first been released in 2012 and was subsequently told by the police there was a threat to his life. He was given an Osman warning in 2014. He was recalled to custody when he failed to live in approved premises. He said that after his final release in 2015, he relocated to the Newcastle area to break with previous ties and then led a law-abiding life. His partner had received threats via social media. He was told that if he transported the items in his possession on arrest, then no harm would come to her. Plainly his activities went far beyond simply transporting items on one day. He had been employed as a regional sales manager for a steel fabrications company. The judge had a letter from the applicant which set out the programmes he had engaged with whilst in custody and before being released on life licence and in which he explained that he had only agreed to deliver the items to satisfy those who were threatening his partner. His partner also spoke in a letter to a better side of the applicant and confirmed that she had been threatened in February and March 2020. There were also impressive testimonials from a prison chaplain, and evidence of progress the applicant had made whilst on remand in custody for these offences. We have read all the material, and it is clear that he has sought to make the best of his recent time in custody. That is very much to his credit. 19. When he passed sentence, the judge said that the applicant’s part in the firearms conspiracy fell into category 1 for harm and category A for culpability, for the purposes of the applicable sentencing guidelines. The judge was entitled to find that this was a large-scale commercial and highly sophisticated enterprise. Guns were coming from abroad and there were obvious connections with other serious criminal activity, namely drugs. Culpability was high. The applicant was properly described as a key facilitator. 20. Such an offence has a starting point of 20 years’ custody. In addition, he had a leading role in a category 1 offence, for supplying Class A controlled drugs. A leading role was demonstrated by his organising buying and selling on a commercial scale. Again, a sentence of 20 years or more could be appropriate in respect of both the heroin and the cocaine. The operation was on the most serious and commercial scale, and the quantities involved were significantly higher than the indicative amounts for category 1 harm, namely 5 kilograms. 21. The judge said that the sentences for the drugs offences and the firearms offences should be consecutive although account had to be taken of totality. He took account of the applicant’s personal mitigation which we have already referred to and of his previous record. The judge said that the applicant had been using the EncroChat phone since at least October 2019. The messages to his partner had not caused him to start offending. We will return to this aspect in due course. 22. The judge took account of the difficulties in prison arising out of the pandemic and said he would reduce the sentence by 34 months which was the period the applicant had spent in custody whilst on recall under life licence and which would not count towards this sentence. There is no automatic entitlement to this, but the court retains a general discretion so as to achieve a just result - see R v Kerrigan [2014] EWCA Crim 2348. He said he would give credit of one-third for the plea of guilty on count 1, even though there had been an abandoned basis of plea. The sentences on counts 3 and 4 would attract credit for plea of 20 to 25 per cent. There is no complaint about the amount of these reductions. 23. The judge took a starting point of 19 years’ imprisonment on count 1, which he reduced by 2 years on account of personal mitigation. Credit for plea resulted in a term of 12 years and 8 months’ imprisonment. On counts 3 and 4, he took a starting point of 20 years’ imprisonment, which he reduced by 2 years on account of personal mitigation. Credit for plea resulted in a term of 14 years’ imprisonment. Consecutive sentences would result in a term of 26 years and 8 months’ imprisonment. The judge reduced this to 22 years on account of totality and then made a further reduction of 34 months for time spent which would not count. The result was a total sentence of 19 years and 2 months’ imprisonment which the judge then divided between the respective counts. 24. It is now argued on the applicant’s behalf by Mr Knox that the judge’s figures were too high and did not take sufficient account of totality, pressure that the applicant had been under and of the undoubted efforts he had made whilst in custody. It is said that the judge was in error in saying that the applicant had used an EncroChat phone since October 2019 and that this related to the phone of a co-accused. The applicant’s phone was only reviewed from the end of March 2020. We will proceed on the basis of the information given to us by Mr Knox. Mr Knox has advanced all these submissions to best effect. 25. We have given them careful consideration. Having done so, we are satisfied that a sentence of 19 years and 2 months’ imprisonment, after credit for plea, was a sentence that the judge was entitled to come to. It took sufficient account of how the applicant said he had become involved but the messages we have recounted do reveal participation that shows enthusiasm rather than reluctance. Why ever he became involved in the first place, the applicant was then an active and eager participant. He was involved with large amounts of heroin and large amounts of cocaine. The sentences for these different drugs and for the cannabis were ordered to run concurrently. The firearms conspiracy was also extremely serious. The applicant had himself observed that only one bullet was needed to kill someone. All the while, the applicant was on licence from a life sentence. The applicant had made specific reference to this in a message and was not deterred by it. The judge made specific allowances for the applicant’s personal mitigation, a reduction of 4 years in all, and for time spent on remand. These were all matters for the judge to assess and balance. In all these circumstances, it is not arguable that the sentence was in anyway wrong in principle or manifestly excessive and this application must be refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]
{"ConvCourtName": ["Crown Court at Leeds"], "ConvictPleaDate": ["22 May 2020"], "ConvictOffence": ["conspiracy to supply heroin", "conspiracy to supply cocaine", "conspiracy to transfer prohibited weapons", "possessing ammunition without a certificate", "possessing a prohibited weapon", "conspiracy to supply cannabis,", "possessing skunk cannabis with intent"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["changed his plea to guilty"], "RemandDecision": ["remand in custody"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["data not available"], "Sentence": ["5 years and 3 months’", "3 years and 6 months’", "2 years and 6 months", "19 years and 2 months’ imprisonment.", "2 years and 3 months", "9 years and 7 months’"], "SentServe": ["concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["employed as a regional sales manager"], "OffHomeOffence": ["applicant’s home address"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["interception of material", "followed by surveillance officers"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["number of previous convictions,", "sophisticated enterprise", "whilst on a life licence.", "Culpability was high", "value of the drugs was £5,000, with a street value of £20,000.", "leading role"], "MitFactSent": ["credit of one-third for the plea"], "VicImpactStatement": ["data not available"], "Appellant": ["applicant"], "CoDefAccNum": ["the co-accused, Alsi Vata"], "AppealAgainst": ["against sentence"], "AppealGround": ["did not take sufficient account of totality", "judge’s figures were too high"], "SentGuideWhich": ["Firearms Act 1968", "totality"], "AppealOutcome": ["application must be refused."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["not arguable that the sentence was in anyway wrong in principle or manifestly excessive"]}
{"ConvCourtName": ["Crown Court At Leeds"], "ConvictPleaDate": ["2020-05-22"], "ConvictOffence": ["possessing ammunition without a certificate", "possessing skunk cannabis with intent", "possessing a prohibited weapon", "conspiracy to supply cannabis,", "conspiracy to supply cocaine", "conspiracy to supply heroin", "conspiracy to transfer prohibited weapons"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["After first trial"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["data not available"], "Sentence": ["9 years and 7 months’", "2 years and 3 months", "2 years and 6 months", "5 years and 3 months’", "3 years and 6 months’", "19 years and 2 months’ imprisonment."], "SentServe": ["Concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Police testimony", "Digital"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["whilst on a life licence.", "leading role", "Culpability was high", "sophisticated enterprise", "number of previous convictions,", "Financial gain/value"], "MitFactSent": ["credit of one-third for the plea"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["1"], "AppealAgainst": ["Sentence (is unduly excessive)"], "AppealGround": ["did not take sufficient account of totality", "judge’s figures were too high"], "SentGuideWhich": ["totality", "Firearms Act 1968"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["not arguable that the sentence was in anyway wrong in principle or manifestly excessive"]}
162
Case No: 201101429D4 & 201102705D4 Neutral Citation Number: [2011] EWCA Crim 2991 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT IPSWICH HHJ GOODIN T20067220 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/12/2011 Before : LORD JUSTICE HOOPER MR JUSTICE EDWARDS-STUART and HIS HONOUR JUDGE METTYEAR (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : (1) MICHAEL JAMES (2) RAYMOND FRANCIS BLACKBURN Appellants - and - THE CROWN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR. S. MINIHAN appeared for the 1 st Appellant. MR. N. WAYNE and MR. A. FITCH-HOLLAND appeared for the 2 nd Appellant. MR. A. ABELL appeared for the Respondent. Hearing date: 2 nd December 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Hooper : 1. The appellants appeal with leave against confiscation orders made by HHJ Goodin at Ipswich Crown Court on 8 December 2010 after a five day hearing. The appeal concerns only the benefit figure. In the case of the appellant James, the benefit figure was £159,521.00. In the case of Blackburn the figure was £135,371.00. Both figures were said to represent the benefit from their criminal conduct. No reliance was placed on the criminal lifestyle provisions. 2. This is another confiscation case involving tobacco, this time hand rolling tobacco (HRT). 3. The benefit figure represented in large measure unpaid excise duty on over 1000 kilos of HRT which was found in a factory or in a garage to which it had been sent from the factory for processing or which had passed through either of the premises”. The unpaid excise duty was £119,748.18 which had increased because of the change in value of money to £127,503. That figure of £127,503 was held by the judge to be part of the benefit figure for both appellants. Given that the appellant had realisable assets it seems likely that, if the order is not quashed, there would be full, or almost full, double recovery No or no meaningful confiscation orders were made against the convicted co-defendants. . If that were to happen the state would receive twice the amount of the unpaid duty. In May [2008] UKHL 28 ; [2008] 1 AC 1028 ; [2009] 1 Cr App R (S) 31 , Lord Bingham said: 45. ... There might be circumstances in which orders for the full amount against several defendants might be disproportionate and contrary to article 1 of the First Protocol, and in such cases an apportionment approach might be adopted, but that was not the situation here and the total of the confiscation orders made by the judge fell well below the sum of which the Revenue had been cheated. 4. No claim was made for any benefit arising from sales of any HRT. 5. The raw tobacco was delivered to the “factory”, namely an industrial unit in Stevenage, where it was processed in a machine that produces tobacco that can be smoked and can be sold as HRT. Blackburn was the “manager” of the factory. From the factory the tobacco went in boxes to the garage adjoining the home in Essex of the appellant, James. There it was put into, or was to be put into, 50 gram counterfeit plastic pouches to be sold under a well known trade name. 6. Duty becomes payable at the moment tobacco is processed into a smokeable condition. Thus duty was payable as it came out of the machine or a little later. The tobacco was smokeable by the time that it was packed into the boxes before leaving the factory. This is now accepted on behalf of Blackburn. 7. The judge, at the request of the prosecutor, added a figure to the unpaid excise duty a figure to represent expenses which it was said the appellants had incurred. Thus, for example, Blackburn had bought scales, saw blades for the machine (£50), had paid some rent, had paid money out as wages to those working in the factory and had paid other miscellaneous expenses and that was held to be a benefit, in the total amount of £6960.00, increased to £7411.00 by reason of a change in the value of money. For reasons which will be given by Mr Justice Edwards-Stuart, those expenses cannot to be treated as benefit and to that extent the benefit figure was wrong. 8. That leaves the unpaid excise duty. Facts 9. We shall set out the facts and background in a little more detail. 10. On 18 th March 2008 in the Crown Court at Ipswich (HHJ McKittrick) the appellants were convicted of conspiracy to contravene section 170 of the Customs and Excise Management Act 1970. Blackburn was sentenced to 3 years’ imprisonment and James to 2 years’ imprisonment. 11. Unfortunately much time passed before the confiscation hearing took place (albeit for good reason) and HHJ McKittrick was unable to hear the confiscation applications. 12. The two appellants and their co-accused were involved in a conspiracy to evade duty payable on hand rolling tobacco indicted between 7 th May and 11 th August 2006. There were two known premises involved, one being a fully operational tobacco factory in a large outhouse (unit 15) at a poultry farm in Stevenage which received boxes of raw leaf tobacco. This was treated with liquid chemical and processed through an industrial tobacco cutting machine into processed hand rolling tobacco. The processed product was packed into smaller boxes and sealed. These boxes were then transported by Charles to second premises, the garage of 29 Rockingham Avenue, Hornchurch, Essex. The boxes were opened, the tobacco weighed and put inside counterfeit 50 gram tobacco pouches for sale. There was no direct evidence as to who had done that, but, given the jury’s verdict, James must, at the least, have allowed that to happen knowing that HRT on which no duty had been paid was being packaged in his garage. 13. Unit 15 was raided on 10 th August 2006 by HMRC officials and Blackburn was one of four men arrested there. 14. The same afternoon James was arrested at the Hornchurch premises which he owned. A co-accused Charles, who died prior to trial, was also arrested there having that day, as he had earlier, driven a van containing boxes of processed tobacco onto the driveway. HMRC officials seized 3.027 tonnes of raw leaf tobacco from Unit 15 and a total of 521.9 kilograms of processed hand rolling tobacco either from the factory or the van. 43,000 empty counterfeit pouches were seized from the garage or the back of the van. 15. Unit 15 had been rented by a man giving the name Peter Ward from 8 th May 2006 at a rent of £500 per month. A total of £2,500 was paid in cash. The unit was modified by upgrading the electrical supply and building a partition wall. A man giving the name Ray contacted the lessors over a drainage problem. The contact number he gave was that of Blackburn’s mobile phone. Officers had kept surveillance on the various conspirators between 13 th June 2006 and 10 th August 2006. On 9 th August officials also placed hidden visual recording equipment in Unit 15. Blackburn declined to answer questions in interview stating he did not have his medication and felt stressed and tired. He declined to suspend the interview to give him the opportunity to see a doctor. James agreed that 29 Rockingham Avenue was his home and was self employed. He said that he had allowed people to store items in his garage because he had been in trouble and someone had sorted it out for him. He declined to answer further questions. 16. As against James, the prosecution relied on three withdrawals of £10,000 in cash withdrawn on 8 th June, 7 th July (two days after the transfer of some of the HRT from the factory to the garage) and 10 th August 2006 (the day on which James and Charles were arrested, as well as the other defendants). Who is liable to pay the excise duty? 17. In R v Smith [2001] UKHL 68 , [2002] 1 Cr App R 35 , [2002] 1 WLR 54 the House of Lords held that an importer of uncustomed goods, in this case cigarettes, who intends not to enter them for customs purposes and not pay any duty on them, derives a benefit under section 74 of the Criminal Justice Act 1988 through not paying the required duty at the point of importation, where the goods are forfeited by HM Customs following importation, before their value can be realised by the importer. 18. In Waya , UKSC 2010/0088, which will be re-argued before nine Justices of the Supreme Court next year, the parties have been sent a note which, amongst other things, asks the question: “Did Parliament intend that confiscation proceedings should be brought in respect of property that has been restored by or recovered from the defendant.” See for example CPS v N and other cases [2009] EWCA Crim 1573 , [2010] 1 Cr App R (S) 82 . The note also states that “it may be that the Court should reconsider” whether Smith was correctly decided. 19. Only the person or persons who are personally liable to pay the duty will have obtained a pecuniary advantage by evading its payment. Absent that liability, they will not have obtained a benefit in accordance with section 76 of the Proceeds of Crime Act, 2002 and its predecessors. This was established by the House of Lords in May ; Jennings [2008] UKHL 29 ; [2008] 1 AC 1046 ; [2008] 2 Cr App R 29 and applied in Chambers [2008] EWCA 2467 and Mitchell [2009] EWCA Crim 214 . 20. However, it does not follow from the fact that a person evades the duty which he personally owes, that he has necessarily obtained a benefit by evading it. We shall come back to that shortly. 21. It is not disputed that a person holding the tobacco products at the excise duty point, namely at or shortly after the tobacco emerged form the machine, is the person holding the tobacco products at that time or any person who caused the tobacco products to reach the excise duty point whilst retaining a connection with the goods at that point: see the Tobacco Products Regulations 2001 2001/1712, the validity of which and the meaning of which was discussed in White and others [2010] EWCA Crim 978 , paras. 56 and following. There can be more than one person who owes the duty and, under the Regulations, each is liable jointly and severally. However, HMRC can only recover the amount of the duty owed. There can be no double recovery. The word “holding” has not been authoritatively determined but a person would “hold” the HRT if he owned it or probably had possession or control. The appellant James- was he liable to pay the duty? 22. James would have been liable to pay the duty if he was holding the tobacco products at the time that excise duty became payable or if he caused the tobacco products to reach the excise duty point whilst retaining a connection with the goods at that point of time. In order to satisfy either requirement it would have to be shown by the prosecution, on the balance of probabilities and on the facts of this case, that James had, contrary to the evidence which he gave, some financial stake in the illegal operation. If he was a part “owner” of the tobacco, that would suffice. 23. We turn to the ruling of HHJ Goodin. He held that James was the provider of accommodation and facilities for packing and distribution and this was crucial to the success of the enterprise. The judge went on to say: “He wasn’t plainly located often on the scene of Unit 15 but he was in my view a visitor for planning meetings for the furtherance of the conspiracy to those premises. [He was] responsible for causing the tobacco to arrive at the duty point where indeed it seems to me [he] helped”. 24. The prosecution accept that the judge was wrong to make the finding that James was a visitor for planning meeting s . The only evidence from which the presence of James at the factory could be inferred was the sighting on one occasion, the 29 th June 2006, of his Cherokee jeep at the factory. James was himself not seen there. James gave an explanation for the presence of his jeep there - it was being driven by Charles, the co-defendant who had died and who drove the tobacco (albeit not in the jeep) from the factory to the garage. If the judge was going to rely on that one sighting from which to infer that James had attended a planning meeting and was responsible for causing the tobacco to arrive at the duty point because he had “helped”, then the judge should have given reasons for not accepting the evidence of James. 25. The judge went on to hold in one sentence that that the three sums of £10,000 withdrawn on 8 th June, 7 th July and 10 th August were payments “for or associated with tobacco produced at the factory”. The appellant gave evidence that he withdrew the sums to gamble with bookmakers and had produced to the judge a considerable body of documentary evidence which showed that he was a heavy gambler and had made numerous withdrawals of cash in large and round sums of money both before and after these withdrawals. The judge accepted that James “may well” have been a gambler and gave no reasons for his conclusion. Furthermore the evidence relating to the withdrawals relied upon by the appellant was introduced at the trial. That is important because the trial judge, having heard that and the other evidence, concluded in his sentencing remarks that the role of James was to allow his premises to be used as a base for the distribution of the processed tobacco and that James had played a lesser role than Blackburn. The trial judge said that it was plain that James was responsible for distribution as opposed to processing and that: “Never shall processing and distribution meet.” If HHJ Goodin was right, then the trial judge should have sentenced James as a financier of the unlawful enterprise whose responsibility was greater than that of Blackburn. Whilst not saying that a judge hearing a confiscation case may not reach a different conclusion than the trial judge, the confiscation judge will normally be expected to explain far more fully than did HHJ Goodin why he has reached a different conclusion on the same evidence considered by the trial judge. This HHJ Goodin did not do. 26. This is not a case where it would be right for the Court of Appeal to conduct a completely new hearing on the issue of benefit and we therefore quash the finding of benefit in so far as it related to evaded excise duty. The judge also held that the £30,000 (uplifted to represent a change in the value of money) was a benefit. For the reasons which Mr Justice Edwards-Stuart analyses and rejects below, the judge was in any event wrong to find this sum to be a benefit even if it had been used to fund the operation. It follows that the confiscation order made against James is quashed. The appellant Blackburn - was he liable to pay the duty? 27. In this part of the judgment we deal only with that part of the alleged benefit which represents the evaded duty. 28. Blackburn’s role was set out in an agreed note prepared for the confiscation hearing. That reads: Statement as to role Raymond Blackburn was described by HHJ McKitterick as the local manager, when sentencing him. There is no evidence that Mr Blackburn financed the purchase of the raw leaf tobacco. Mr Blackburn accepts the following: He was first observed on the 29 th June 2006 at the unit. He was made aware that the tobacco cutting machinery was being delivered to the Unit and assisted in putting it into the unit. He loaded tobacco onto the machinery, for the machine to process the tobacco. There is no evidence that the machinery was operated in the absence of Eric Cuerton. He was responsible for running, safety and security at Unit 15. He was responsible for preparation/modification of the unit so that processing could take place. He recruited labour to assist in processing of the tobacco – Mr Warr and Mr Chuter. He assisted in the transportation of the raw leaf tobacco from its stored location, said in evidence to be in Grimbsy. He obtained and paid for materials for the day to day running of the unit (see Albany notebook). He liaised with the landlord of Unit 15 including on occasions the payment of rent on the unit. He wrote on the wall the recipe for blending the hand rolling tobacco. Mr Blackburn said he obtained this recipe from another. 29. The effect of this agreed note is that Blackburn was in effect the local “salaried” manager of the factory with no proprietary interest in the tobacco. It might have been agreed or, if not agreed, decided that the £6960.00 which Blackburn spent on miscellaneous expenses was an investment by Blackburn in the unlawful enterprise. However it was agreed that was no evidence that Mr Blackburn financed the purchase of the raw leaf tobacco. It must follow that it had to be assumed that that Blackburn expected to be reimbursed for the expenses, albeit that there was no evidence that he was reimbursed. 30. Was Blackburn either holding the HRT or did he cause the tobacco products to reach the excise duty point whilst retaining a connection with the goods at that point of time? In Mitchell [2009] EWCA Crim 214 , a post Chambers decision discussed in White and others in paragraphs 105-115, the Court said that they had not heard full argument on the point but that it appeared that the words causing the tobacco products to reach the excise duty point were directed at the person who had real and immediate responsibility for causing the product to reach that point. In paragraph 115, the Court in White and others said that the correctness or otherwise of this obiter passage might have to be considered should the point arise. One of the problems for criminal courts in this area is that any interpretation given to the Regulations must be the same as the interpretation that would be given to the Regulations in civil proceedings (court or tribunal) concerning excise duty. Furthermore when construing the word “cause” in criminal cases, it is normally given a broad meaning: see Williams , [2010] EWCA Crim 2552 ; [2011] 1 W.L.R. 588 , applied in H [2011] EWCA Crim 1508 . 31. Whatever the precise meaning of the words “holding” and “causing”, it seems to us that the appellant as the local manager albeit with no ownership of the tobacco falls into one or both of these categories. The judge was therefore entitled to find that he caused the tobacco to arrive at the duty point. Did Blackburn obtain a benefit? 32. The judge took the view that, having found that Blackburn caused the tobacco to arrive at the duty point, he had obtained the benefit in that amount. It is submitted on behalf of Blackburn that he was wrong to so find in the light of May and Sivaraman [2008] EWCA 1736; [2009] 1 Cr. App. R. (S.) 80 ; [2008] Crim. L.R. 989. 33. In May Lord Bingham, giving the opinion of the Appellate Committee, said (paragraph 48(6)): D ordinarily obtains property if in law he owns it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else. He ordinarily obtains a pecuniary advantage if (among other things) he evades a liability to which he is personally subject. Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property. It may be otherwise with money launderers. 34. Blackburn, on the agreed facts, had no interest in the tobacco or the proceeds of sale. On the other hand he was more than a courier or custodian and it would be difficult to categorise him as a very minor contributor to an offence. 35. In Jennings the House of Lords said: 13. ... It is, however, relevant to remember that the object of the legislation is to deprive the defendant of the product of his crime or its equivalent, not to operate by way of fine. The rationale of the confiscation regime is that the defendant is deprived of what he has gained or its equivalent. He cannot, and should not, be deprived of what he has never obtained or its equivalent, because that is a fine. This must ordinarily mean that he has obtained property so as to own it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else. 36. In this case Blackburn, if not repaid the £6960.00, had lost that money and had made no money at all, given that HMRC had intervened before any distribution had effectively taken place. 37. We turn to Sivaraman . The appellant was the manager of a service station who accepted deliveries of “off road” diesel fuel on behalf of his employer, which was then sold to customers without the payment of duty. The Court (Toulson LJ, Jack J and HHJ Mettyear) held that his benefit was the amount paid to him by his employer for his participation in the scheme, not the duty evaded. The respondent seeking unsuccessfully to uphold the confiscation order made against the appellant which reflected the duty evaded, argued that, applying the passage in May (paragraph 34 above), the appellant was not a mere minor contributor but that he played a significant role as the petrol station manager. As to this the Court said: The way in which he sought to deploy that sentence illustrates the need for care in the way that courts approach judicial commentary, the purpose of which is to elucidate and not stand in the place of the underlying principle. 38. The Court asked whether the appellant was a joint purchaser of the fuel for resale as DERV who, by his conduct, jointly gained the pecuniary advantage of being able to resell it as DERV without having incurred the duty which would have had to be paid on purchasing DERV; or was he acting just as an employee? The Court held that he was the latter and quashed the confiscation order. 39. In the light of Sivaraman , it seems to us that Blackburn’s appeal against the confiscation order in so far as it represented the unpaid excise duty must succeed. In these circumstances we do not need to address the post hearing submissions that were sent to us on the question of whether or not Blackburn had the necessary intent to evade the duty. Mr Justice Edwards-Stuart 40. We turn now to the question of the expenses incurred by Blackburn. Blackburn's case was that he was never reimbursed for these expenses, and there was no evidence or finding to the contrary. We therefore proceed on this basis. 41. The expenses in question fall broadly into three types. First, the purchase of equipment or materials for the purpose of the venture. Second, payments by way of rent for Unit 15, “the factory”. Third, payments for casual labour for work in connection with the venture. In all, these amounted to about £7,000. For convenience, we will set out below those provisions of the Proceeds of Crime Act 2002 (“ POCA ”) that are of particular relevance to this issue, bearing in mind that the exercise that the court is undertaking is to decide whether the appellant has benefited from his particular criminal conduct: see section 6(4) . Section 76 of the Act provides: (1) Criminal conduct is conduct which (a) constitutes an offence in England and Wales . . . (3) Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs (a) conduct which constitutes the offence or offences concerned . . . (4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct. (5) If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage. (Emphasis added) 42. Section 84 of the Act provides that property is held by a person if he holds an interest in it. The purchase of equipment or materials for the purpose of the venture 43. It was not disputed that Blackburn purchased these items, which included things such as weighing scales, cardboard boxes and sundry building materials, from ordinary commercial suppliers in the usual way. He paid in cash. In relation to the cardboard boxes and packaging tape, it was said that he asked the supplier if the transaction could be done " without a ticket ", but the request was refused. 44. In our judgment it is quite clear that these were ordinary everyday transactions that were perfectly lawful in themselves. True it is that Blackburn intended to use these items in an unlawful venture, but there is no reason to believe that that would have been known to the supplier. If, for example, on returning to the factory Blackburn had discovered that the cardboard boxes were damp, there would probably have been nothing to prevent him from returning to the supplier and rejecting them, demanding the return of the price. The supplier would not have been entitled to refuse on the ground that he had since learned that Blackburn wanted the boxes in order to transport illegally processed tobacco products, because Blackburn did not have to rely on any particular purpose for which he bought the goods in order to complain that they were not of merchantable quality. See Tinsley v Milligan [1994] 1 AC 340 . Where property has passed pursuant to an illegal contract, relief will not ordinarily be refused to the person who acquired the property on the ground of illegality unless he has to rely on the illegal conduct in order to establish his title. 45. There is no suggestion that Blackburn paid anything other than the normal retail price for any of these items. At the outset we remind ourselves of the summary of the relevant principles given by the House of Lords at the conclusion of its opinion in R v May [2008] 1 AC 1028 , which included the following passage: “The court should proceed by asking the three questions posed above: (i) Has the defendant (D) benefited from the relevant criminal conduct? (ii) If so, what is the value of the benefit D has so obtained? (iii) What sum is recoverable from D? . . . These are separate questions calling for separate answers, and the questions and answers must not be elided.” 46. Looking at the matter broadly and addressing the first of these questions, we do not see how it can be said that Blackburn derived any benefit from buying these items. He paid for them and received goods in return to the same value. He gained nothing (in monetary terms) by the transaction. There was no pecuniary advantage. In these circumstances, it would be strange if the relevant legislation compels the conclusion that he had derived a benefit, measurable in money terms, from these transactions. 47. We do not think that the relevant provisions of POCA do compel this conclusion. First, Blackburn did not obtain the items as a result of any criminal conduct. He obtained an as a result of a lawful transaction with the supplier. 48. Second, he did not obtain the items in connection with any criminal conduct. His criminal conduct in participating in the conspiracy formed no part of the transactions by which he acquired the various items. Their acquisition was by way of lawful purchase for value. We accept that these transactions were entered into for the purpose of criminal conduct, but that is not necessarily a state of affairs caught by section 76(4) . 49. We accept also that the expression " in connection with " widens the meaning of the words " as a result of ": see R v Waller [2009] 1 Cr App R (S) No 76, at page 450. In our view, the expression was probably intended to cover the type of situation where a person obtains property in anticipation of the criminal venture. For example, suppose that A is provided with a car (which is registered in his name) by someone planning a criminal venture, ostensibly for A’s own use but really with a view to him using it also in order to act as a courier to transport illegal tobacco products for that criminal venture. In this situation it is clear that A has obtained the car in connection with his subsequent criminal conduct of transporting the illegal goods, although it may be open to argument whether he also obtained the car as a result of any criminal conduct. 50. In fact, this example is very similar to the facts of the leading case of R v Smith , which we have already mentioned. Smith bought a motor vessel with £55,000 provided by his co-defendant, John Marriott. Smith effectively acted as Marriott's shipowner and captain. When, as part of a smuggling operation, the vessel was sailed up the Humber estuary laden with cigarettes on which duty had not been paid, the benefit that he was found to have obtained from his criminal conduct included not only the duty evaded on the cigarettes but also the value of the vessel. That was because he had obtained the vessel in connection with the commission of the offence. Whilst this decision may have its critics on the ground that the defendants were treated as having benefited to the full extent of the amount of the duty evaded whilst having been deprived of the opportunity to sell the cigarettes, we do not understand there to have been any criticism of the conclusion that the vessel was properly treated as property obtained in connection with a commission of an offence (a point which was not argued in the House of Lords). 51. We were referred by Mr Abell to the decision of R v Waller , to which we have referred briefly above. The defendant was stopped at the Channel Tunnel by British customs officers, who found 250 kg of undeclared hand rolling tobacco in the boot of his car. The defendant admitted to buying the tobacco for himself, his family and his friends. He said that he had spent £2,000 of his own money and £12,000 given to him by three other people. He accepted that he bought the tobacco with the intention of evading duty. 52. In the subsequent confiscation proceedings the Crown contended that the defendant’s benefit amounted to £41,505, being the total of the evaded duty of £27,505 and £14,000, being the value of the cigarettes. The issue on the appeal related to whether the confiscation order should have included the value of the tobacco as well as the evaded duty. The case for the defendant on this aspect was that the judge should not have included the value of the tobacco as it had been purchased legitimately. The Crown’s response was that the whole enterprise was one tainted with criminal intent We note that a very similar metaphor (“ tainted with illegality ”) has attracted judicial criticism for its imprecision: see Euro-Diam v Bathurst [1990] 1 QB 1, Staughton J at 15. from its outset since, without dutiable goods to smuggle, there can be no pecuniary advantage. 53. The court gave six reasons in support of its conclusion that the judge was right to make a confiscation order not merely that the value of the duty but also the value of the tobacco. The first reason was based on the concluding paragraph of the judgment of the House of Lords in May , which stated: “(6) [The defendant] ordinarily obtains property if in law he owns it, whether alone or jointly which will ordinarily come out a power of disposition will control, as where a person directs a payment or conveyance of property to somebody else." 54. The third reason was expressed in the following terms: “Our third reason for accepting the contentions of the respondent flows from the wording of the statutory provisions because the court has to ask itself two questions. The first is whether the defendant has benefited from his criminal conduct. In this case, the answer must be in the affirmative, as the appellant obtained tobacco which he purchased. The second question, based on s. 76(4) is whether the appellant obtained property "as a result of or in connection with" the conduct of evading excise duty. In this case the answer must be that the appellant obtained property, namely the tobacco. This was the only property that he obtained and in reaching that conclusion, we have noted the width of the words used in the statutory provision because they talk about a person obtains property "as a result of or in connection with his conduct". The words "as a result of" apply to any consequence, while the words "in connection with" widen that meaning. In our view, the acquisition of property and this tobacco falls clearly within both categories." 55. It is clear on the facts of that case that the enterprise demanded the prior purchase of the tobacco outside the United Kingdom with the consequence that it was obtained “ as a result of ” the criminal conduct, namely the smuggling enterprise. It is evident also that it was obtained " in connection with " the smuggling enterprise, since the tobacco was itself the subject of the operation. Leaving aside the defendant’s admission, it was not as if there could have been any other conceivable reason for buying such a large quantity of tobacco outside the United Kingdom: the defendant and his friends could hardly have wanted to buy it just in order to set up a stockpile of tobacco on the mainland of Europe. 56. However, the decision is not without its critics: see Archbold , 2012 Edn, at 5-1051, where the editors refer to an article in which the decision is criticised on the grounds that it misapplies May and is out of line with Smith (because in that case it was never suggested that the benefit included the value of the smuggled goods). 57. We consider that there is a significant difference between the purchase of the tobacco in Waller and Blackburn's purchases of the various items with which we are concerned in this case. Mr Waller's purchase of the tobacco was central to the smuggling operation on which he had embarked since the tobacco in question was the very thing that was to be smuggled. In those circumstances it is unsurprising that the court concluded that the purchase of the tobacco was in connection with the criminal conduct: it formed part of it. 58. Turning now to the judgment in the present case, the judge dealt with the issue of the outlay on the purchase of equipment for the enterprise, such as the scales, boxes and so on, in a single sentence. He said, very simply, that those expenses " are in my judgment caught by the legislation ". He gave no reasons. 59. For the reasons we have given, we consider that the sums spent by Blackburn on the purchase of equipment or materials for the purpose of the venture are not caught by the legislation. Accordingly, they did not form part of the benefit. 60. We should add that the Crown did not seek to include in the assessment of the benefit to Blackburn any sums in respect of either the raw tobacco that was found at the factory or in respect of the HRT that was produced or seized. It is not obvious to us why the Crown chose to omit these whilst including the items purchased by Blackburn. Payments by way of rent for the factory building 61. As the agreed statement of Blackburn’s role records, he paid some of the rent for Unit 15 during the relevant period (£2,000, according to his notes). As we have already mentioned, a man giving the name Peter Ward rented the unit from 8 May 2006 at a rent of £500 per calendar month (this was stated in the Crown’s opening note for the trial). 62. In Jennings the House of Lords held that “ obtains ” must ordinarily mean obtaining property so as to own it, thereby ordinarily connoting a power of disposition or control. Since it appears that the agreement to rent Unit 15 was not in Blackburn's name, or at least the Crown did not prove that it was, it seems to us that the payment of the rent did not confer on Blackburn any right of disposition or control over the unit. 63. The most that can be said is that the payments of the rent enabled “Mr Ward” to continue to enjoy the rights under the agreement with the lessor. Whilst it may be argued that he (Ward) thereby obtained property, we consider that the relevant evidence, namely that Blackburn paid the rent for certain months out of his own pocket, fell short of establishing that Blackburn obtained any property, or any property rights, that amounted to a benefit. 64. However, if we are wrong about this, for much the same reasons that we have given in relation to the purchases of the items of equipment, we would have concluded that these payments in respect of the rent were not made in connection with the criminal conduct within the meaning of the legislation (we are assuming, because there was no evidence to the contrary, that the rent was in line with prevailing market rates). It is true that Unit 15 was rented for the purpose of enabling the criminal conduct to take place, but the arrangement to rent it was a contract that was not in itself in any way unlawful. Unlike the tobacco in Waller , the unit could have been put to another purpose or those controlling the enterprise might have changed their minds - perhaps because they thought that Unit 15 was under observation - and decided at the last minute to terminate the arrangement and to use another building. 65. We accept that, because the payment of rent was a continuing outlay, the connection to the criminal conduct is closer than in the case of the individual expenses. However, since this is a criminal statute and the confiscation process is not to be applied so as to operate as a fine (see Jennings , at paragraph 13), we consider that the words “ in connection with ” must be given a narrow construction provided, of course, that such a construction is consistent with the ordinary use of the statutory language. In these circumstances and for the reasons that we have given we consider that by paying the rent Blackburn did not obtain a benefit that is caught by the legislation. Payments for casual labour for work in connection with the venture 66. Mr Abell submitted that in paying for the casual labour Blackburn obtained a pecuniary advantage and that this advantage was gained in connection with the criminal conduct. 67. In R v Olubitan [2004] 2 Cr App R(S) No 14, May LJ said, at page 78: “The section [ section 71 (1A) of the 1988 Act , the precursor to s 6 of POCA ] is not to be construed so that a person may be held to have obtained property or derived a pecuniary advantage when a proper view of the evidence demonstrates that he has not in fact done so.” This passage was cited with apparent approval by the House of Lords in May , at paragraph 19. 68. In our judgment, Mr Abell’s submission falls at the first fence. We cannot see how a person who pays for services at a market rate can be said to have obtained a pecuniary advantage. It seems to us that, in terms of gain, the transaction is financially neutral. 69. It may be that, if one looks at it from the other end of the telescope, one could say that the men engaged to work at the factory on a casual basis thereby obtained a pecuniary advantage in the sense that they received money in return for their labour. By analogy with the now repealed section 16(2)(c) of the Theft Act 1968 . But whether or not that is the case, it is hard to see how the employer obtains a similar pecuniary advantage in circumstances where (a) he obtains no money as a result of the transaction and (b) the labour he obtains is paid for at the going market rates. Conclusion in relation to expenses 70. We conclude that none of the items of expenditure incurred by Blackburn that were treated as part of the benefit in the confiscation proceedings was caught by the legislation. Accordingly, that part of the decision of HHJ Goodin must be set aside. Conclusion 71. It follows that the confiscation orders in respect of both appellants are quashed.
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{"ConvCourtName": ["Crown Court At Ipswich", "Ipswich Crown Court"], "ConvictPleaDate": ["2008-03-18"], "ConvictOffence": ["conspiracy to contravene"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Ipswich", "Ipswich Crown Court"], "Sentence": ["James to 2 years’ imprisonment", "Blackburn was sentenced to 3 years’ imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["data not available"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Authority evidence"], "DefEvidTypeTrial": ["Documentary Evidence"], "PreSentReport": ["Don't know"], "AggFactSent": ["Financial gain /value"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["Don't know"], "AppealAgainst": ["Sentence"], "AppealGround": ["the judge was wrong to make the finding that James was a visitor"], "SentGuideWhich": ["Proceeds of Crime Act 2002 (“POCA”)", "section 170 of the Customs and Excise Management Act 1970"], "AppealOutcome": ["confiscation orders in respect of both appellants are quashed"], "ReasonQuashConv": ["the judge was in any event wrong to find this sum to be a benefit"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
309
Neutral Citation Number: [2008] EWCA Crim 474 No: 200800458/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Monday, 25th February 2008 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE IRWIN MR JUSTICE COULSON - - - - - - - - - - - - - - - - - - - - - R E G I N A v SAMUEL ROBERT LAWLOR - - - - - - - - - - - - - - - - - - - - - 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 Pottinger appeared on behalf of the Applicant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. Mr Justice Irwin: On 13th February 2007, in the Crown Court at Birmingham, before Mr Recorder Tickle, this applicant pleaded guilty to inflicting grievous bodily harm. On 30th March 2007 he was sentenced for that offence by Mr Recorder Lopez to 18 months' detention in a young offenders institution, suspended for two years, with an unpaid work requirement for 200 hours pursuant to section 199 of the Criminal Justice Act 2003 . He was ordered to make a considerable payment towards prosecution costs and to make a more modest payment in compensation. A further count on that indictment was ordered to remain on the file on the usual terms. 2. The present proceedings arise in the form of an application for an extension of time of 263 days for leave to appeal and for leave to appeal against sentence. The application has been referred to this court by the registrar who has granted, properly, a representation order for counsel here today. 3. The facts can be summarised as follows. At approximately 8.00 p.m. on 28th September 2006 the complainant, Mr Cleaver, was with his girlfriend on Trittiford Road in Moseley in Birmingham. They had an argument as they walked along. The applicant was on the other side of the road. He approached them as he crossed the road to their side. He walked straight up to the complainant and punched him to the face without any warning. The complainant fell to the floor. The applicant then walked off, but said something rather aggressive to the lady as he did so. Whilst he was on the ground the complainant slipped into unconsciousness as he bled heavily from his mouth. Another witness described how the complainant at that stage appeared to him to be choking on his own blood. The complainant was taken to hospital where he was operated on for a broken jaw. It had been broken on both sides. 4. When he was arrested and interviewed, on 5th October 2006, this applicant claimed that he thought the complainant was pulling a knife on him and that was why he had reacted as he did. 5. It was noted when the original recorder ordered the preparation of a pre-sentence report he had indicated he would impose a non-custodial sentence if the risk of reconviction was low. That was a very generous approach to take. We would wish to emphasise again that when ordering the preparation of such reports it is not usually sensible to give indications of that kind. Of course non-custodial sentences must be in contemplation when a matter is adjourned so that the report can be prepared in a case of this kind. It is not normally wise to give a positive indication that there will be a non-custodial disposal which can subsequently be taken as a promise. In any event, in this case this was an over-generous indication, given the facts of the case. 6. However, when the second recorder, Mr Recorder Lopez, came to sentence this appellant, he took the view that he should honour the indication that had been given, because the pre-sentence report, as it turns out wrongly, indicated that there was a low risk of re-offending in the case of this applicant. So, as a consequence, the sentence we have indicated was passed by Mr Recorder Lopez, who told the applicant that he should be extremely careful with his temper as he had caused serious injury and was lucky that he had not caused even more damage. Mr Recorder Lopez rightly said that this offence clearly crossed the custody threshold but he gave the sentence of 18 months, suspended for two years with an unpaid work requirement, as we have outlined. 7. This was a generous sentence given the nature of the assault, even despite the applicant's previous lack of convictions, his plea and his then assessed low risk of re-offending. However, that was a optimistic prognostication. The applicant has committed a further offence of a similar nature, for which he now awaits sentence. It was as a result of that arrest that counsel, looking at the applicant's record, realised that there is a problem in the suspension of an 18 month period of detention. We commend the vigilance of counsel. The problem is that the court has no power to suspend a sentence which is longer than 12 months: see section 189 of the Criminal Justice Act 2003 . Thus, the recorder's sentence was illegal. 8. The applicant is granted an extension of time of 263 days, is granted leave to appeal and the sentence is quashed. The powers of this court are constrained by section 11(3) of the Criminal Appeal Act 1968 , with the effect that the appellant cannot be dealt with more severely on appeal than the overall effect of the sentence received below. Therefore, we substitute a 12 month sentence of detention in a young offender institution, suspended for two years, for that passed by the recorder.
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{"ConvCourtName": ["Crown Court At Birmingham"], "ConvictPleaDate": ["2007-02-13"], "ConvictOffence": ["grievous bodily harm"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Birmingham"], "Sentence": ["18 months' detention in a young offenders institution, suspended for two years, with an unpaid work requirement for 200 hours"], "SentServe": ["data not available"], "WhatAncillary": ["payment in compensation.", "payment towards prosecution costs"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Stranger"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["witness"], "DefEvidTypeTrial": ["Offender's account"], "PreSentReport": ["Low risk of reoffending"], "AggFactSent": ["applicant has committed a further offence of a similar"], "MitFactSent": ["previous lack of convictions, his plea and his then assessed low risk"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Other (e.g., application for extension of time to appeal)", "against sentence"], "AppealGround": ["the court has no power to suspend a sentence which is longer than 12 months"], "SentGuideWhich": ["section 189 of the Criminal Justice Act 2003.", "section 199 of the Criminal Justice Act 2003"], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence", "the sentence is quashed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["generous sentence given the nature of the assault"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
193
Neutral Citation Number: [2017] EWCA Crim 1466 Case No. 2017/00311/C5 & 2017/03242/C5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 7 th September 2017 B e f o r e: LORD JUSTICE DAVIS MR JUSTICE PHILLIPS and MR JUSTICE GARNHAM _________________ R E G I N A - v - LAWRENCE BURNS ____________________ Computer Aided Transcription by Wordwave International Ltd trading as DTI 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) ____________________ Mr A Davies appeared on behalf of the Applicant Mr W Weekes appeared on behalf of the Crown ______________________ J U D G M E N T (Approved) LORD JUSTICE DAVIS: I shall ask Mr Justice Phillips to give the judgment of the court. MR JUSTICE PHILLIPS: 1. On 15 th December 2016, in the Crown Court at Cambridge, before His Honour Judge Cooper and a jury, the applicant (now aged 23) was convicted of stirring up racial hatred by publishing written material, contrary to section 19(1) of the Public Order Act 1986 (count 1); and of stirring up racial hatred through words or behaviour, contrary to section 18(1) of the same Act (count 2). On 10 th March 2017, the applicant was sentenced to three years' imprisonment on the first count and to a consecutive term of one year's imprisonment on the second count. The total custodial sentence was, therefore, four years' imprisonment. A Criminal Behaviour Order was made for a period of six years. 2. The applicant renews his applications for an extension of time, and for leave to appeal against conviction, following refusal by the single judge on the papers. The applicant's applications for leave to appeal against sentence and for an extension of time for so doing have been referred to the full court by the Registrar. 3. The relevant facts are as follows. The applicant was a member of National Action, a far-right white supremacist group, and was an avowed racist. 4. Between August and September 2014, when he was aged 20, he posted a series of virulently racist updates, comments and links to a Facebook account he operated under an alias. Those posts gave rise to count 1. The comments contained many vile and deeply offensive comments directed at, in particular, the Jewish and Afro-Caribbean communities. The gist of the messages was to promote militant action against them, with the aim that they should be eliminated, with a view to protecting what the applicant described as "an advanced warrior race consisting of white men and women". 5. If there is any doubt about the appellant's state of mind and intention, it was dispelled by material found on electronic media belonging to him, including e-books, expressing extreme anti-sematic views and extolling Adolf Hitler as "the ultimate being". 6. The Facebook account had 98 "friends", some (but not all) of whom appeared to be located overseas. However, the account was not locked and so could be readily accessed by any user of the internet. It is not in dispute that the applicant posted the relevant material whilst in this jurisdiction. 7. Count 2 related to a speech made by the applicant on 23 rd May 2015, whilst he was aged 21 and whilst he was on bail for the offence charged in the first count. During a demonstration staged outside the United States Embassy, the appellant spoke, using highly inflammatory language directed towards non-white immigrants and Jews. He alleged that the former were "rapists, robbers and murderers" and that the latter were "parasites and bankers" who wanted to create a "mongrelised" race. The speech was filmed. The appellant subsequently indicated in an online post that he knew that the video was to be posted on YouTube, which indeed it was. 8. The applicant's defence at trial was that his postings on Facebook were intended to be "private banter" and that his speech, whilst not banter, was not intended to stir up racial hatred and was unlikely to do so. 9. The jury, not surprisingly, rejected those contentions in finding him guilty on both counts. The renewed application for leave to appeal against conviction 10. The first ground of appeal relates to the judge's ruling that, for the purposes of the offences under sections 18 and 19 of the 1986 Act , it was not necessary that the intended or likely stirring of racial hatred be in the jurisdiction of England and Wales. Mr Davies, who has appeared today for the applicant, relies upon the general principle that offences are not intended to be extra-territorial in effect; but he accepts, following the Court of Appeal decision in R v Sheppard and Whittle [2010] EWCA Crim 65 , [2010] 1 WLR 2779 , that it is sufficient for the purposes of these offences in relation to publication that the relevant actions of the defendant in publishing took place in this jurisdiction, even if the relevant website was hosted overseas. His contention before the learned judge, and before us today, is that it is necessary that the racial hatred in question is intended or is likely to be stirred up in this jurisdiction. 11. In a careful ruling, the learned judge rejected that contention. We entirely agree with his decision. We see no merit in the argument. The question is: what was the intention or likelihood of the person making the publication or using the relevant words or behaviour? If that person was in the jurisdiction at the time when he carried out such actions, then there is no difficulty with territoriality. The fact that the hatred in question may be stirred up overseas does not, in our judgment, give rise to any arguable point. We reject that argument. 12. The second ground in relation to conviction arises from a jury note which was in the following terms: "Should our deliberations on the speech … be constrained only to the [applicant's] behaviour and speech or do we consider the dissemination of the whole content of the video on YouTube as specific intent or likelihood of stirring up of racial hatred?" 13. The learned judge gave a careful direction in relation to both "intention" and "likelihood". He directed the jury that, in considering what was the applicant's intention or what was otherwise the relevant likelihood, they were entitled to take into account all matters or circumstances which obtained at the time of the speech. 14. Mr Davies has submitted to us today that to allow the jury to consider the subsequent posting on YouTube was impermissible because it permitted the taking into account of subsequent matters which were not relevant or admissible in considering the applicant's intention or otherwise the likelihood of stirring up racial hatred. 15. Again, we see no merit in that contention. The question of what was a defendant's intention, or otherwise the likelihood of a matter occurring, must be judged at the relevant time; but there is no reason why it must be considered only in relation to matters which had occurred at that time. There is no reason why subsequent events cannot be considered in forming a view as to what was the intention or likelihood at that time. The judge's direction was entirely conventional and correct. There is no merit in that argument. The renewed applications in relation to conviction are, therefore, refused. The applications in relation to sentence 16. The judge correctly set out the fact that, whilst freedom of speech is a fundamental freedom of our society, the applicant's conduct in this case went far beyond what was regarded as acceptable. It was designed publicly to promote racial hatred, to mobilise the applicant's listeners, and to encourage them to move from ideas into action. 17. We entirely agree with the learned judge that a custodial sentence was necessary – and indeed one with a deterrent effect. The learned judge approached sentence on the basis that, although the applicant had some previous convictions, none was relevant to these matters. But he took the view that consecutive sentences were appropriate. That is a sentiment with which we agree. He indicated that he regarded a sentence of three years' imprisonment as appropriate on the first count and that he would have imposed a consecutive sentence of two years' imprisonment on the second count, but he reduced the second sentence to one year's imprisonment to take account of the principle of totality. That gave rise to a total sentence of four years' imprisonment. 18. In our judgment, however, the judge's approach did not take sufficient account of the applicant's young age at the relevant time (20 at the time of the publications on Facebook, and 21 at the time of the speech). It is also the case that evidence was adduced that the applicant is of low intellect and has a poor educational background. He was undoubtedly immature at the time of these offences. 19. We have been referred to the decision in Sheppard and Whittle , to which we have already referred, in which Sheppard, who was sentenced for 16 offences and who had previously been convicted of two similar offences for which he had received a sentence of nine months' imprisonment, received a sentence of three years' imprisonment; whereas Whittle, who was convicted of five counts, received a sentence of 18 months' imprisonment. 20. We were also referred to R v Bonehill-Paine [2016] EWCA Crim 980 , in which the Court of Appeal dismissed an appeal against a total sentence of three years and four months' imprisonment in respect of one conviction for an offence under section 19 of the Public Order Act 1986 , although it was accepted that the appellant in that case had previous convictions for similar offences. 21. In our judgment, particularly given the applicant's young age, and taking into account the cases to which we have been referred, we consider that the sentence in this case was manifestly excessive. Accordingly, we grant the extension of time sought and give leave to appeal against sentence. We will quash the sentence of three years' imprisonment on count 1 and substitute for it a sentence of 18 months' imprisonment. We will leave undisturbed the sentence on count 2 of one year's imprisonment. The resulting sentence in total is one of two years and six months' imprisonment. LORD JUSTICE DAVIS: The appeal is allowed to the extent indicated. _________________________________
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{"ConvCourtName": ["Crown Court At Cambridge"], "ConvictPleaDate": ["2016-12-15"], "ConvictOffence": ["racial hatred through words or behaviour", "racial hatred by publishing written material"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Unconditional Bail"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Cambridge"], "Sentence": ["Criminal Behaviour Order was made for a period of six years.", "one year's imprisonment", "three years' imprisonment", "The total custodial sentence was, therefore, four years' imprisonment"], "SentServe": ["Consecutive"], "WhatAncillary": ["Criminal Behaviour Order was made for a period of six years."], "OffSex": ["All Male"], "OffAgeOffence": ["20"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Digital"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["Intent", "on bail for the offence", "operated under an alias"], "MitFactSent": ["low intellect and has a poor educational background", "applicant's young age"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence", "against conviction", "Other (e.g., application for extension of time to appeal)"], "AppealGround": ["ground in relation to conviction arises from a jury note", "ground of appeal relates to the judge's ruling that"], "SentGuideWhich": ["principle of totality", "Public Order Act 1986"], "AppealOutcome": ["appeal is allowed", "Allowed&Sentence Replaced by More Lenient Sentence", "Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The judge's direction was entirely conventional and correct."]}
152
Case No: 2001/00805 S4 & 2001/03154 S4 Neutral Citation Number: [2003] EWCA Crim 2957 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LIVERPOOL ASSIZES Mr Justice Cassels Royal Courts of Justice Strand, London, WC2A 2LL Tuesday 28 th October 2003 Before: LORD JUSTICE RIX MR JUSTICE DOUGLAS BROWN and MR JUSTICE DAVIS - - - - - - - - - - - - - - - - - - - - - Between: George KELLY & Charles CONNOLLY (both deceased) Appellants - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr A Newman QC, Mr M Wolff & Mr R Makin (Solicitor Advocate) for Kelly Mr W Waldron QC and Mr S Berkson for Connolly Mr S Pownall QC for the Crown (In the matter of a reference to the Court of Appeal by the Criminal Cases Review Commission by the applicant Kathleen Hughes, the daughter of George Kelly now deceased, and In the matter of a reference to the Court of Appeal by the Criminal Cases Review Commission by the applicant Eileen Connolly, the widow of Charles Connolly now deceased) - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Rix: Introduction and synopsis 1. Over 50 years ago, on Saturday 19 March 1949 at about 9.35 pm, a notorious double murder occurred at the Cameo Cinema in Liverpool. Its manager, Leonard Thomas, and assistant manager, John Catterall, were shot dead in the former’s office in the course of a robbery of the day’s takings. Charles Connolly and George Kelly were subsequently tried in Liverpool for those murders. The Crown alleged that Kelly was the gunman and Connolly his lookout. Kelly and Connolly were arrested on 30 September 1949, on the day following police statements implicating them were made by James Northam and Jacqueline Dickson . Two weeks earlier, on 15 September 1949, a prisoner called Robert Graham had made a police statement that a man known as Donald Johnson had confessed to him, Graham, while in prison, that he, Johnson, had committed the murders and the robbery. Despite that statement, in November 1949 Graham made further statements to the police concerning further alleged prison confessions to the murders, this time by Kelly and Connolly. Graham said that each of them had confessed their roles to him while they were together in Walton Prison between 14 and 16 November 1949. Notice of the additional evidence of what we shall for the sake of convenience describe as Graham’s second statement (in fact it would seem that there was no second statement as such but a series of at least three interviews) was served on the defence on the first day of their joint trial, which lasted from 12 to 28 January 1950. Thus it had not been available at the committal proceedings in October 1949. Graham’s first statement was never disclosed to the defence, nor even to prosecuting counsel. The discovery of that first statement, still present in police files, in the early 1990s ultimately led to applications to the Criminal Cases Review Commission (CCRC) and, in 2001, to these references by the CCRC to the Court of Appeal. 2. Johnson had already stood trial charged with being an accessory after the fact to the murders and had been acquitted at the direction of the judge, at the time when Graham, in his first statement, said that he (Johnson) had confessed to carrying them out himself. Johnson’s trial took place in June 1949, soon after he had made unsigned statements to the police on 2 and 6 May in which he had confessed to helping the gunman, whom he described and disguised as “Charlie Duggan” (or “Dugan”), dispose of the gun. He was acquitted because the judge ruled that the second of his police statements had been obtained by inducements and was inadmissible. Graham said that following that acquittal Johnson, who at this time was in custody on another matter, had returned to prison and told him in glee that he had committed the murders himself and now could no longer be prosecuted for them. 3. That account was given, as we have said, in Graham’s first statement dated 15 September 1949. Graham’s statement was made to Detective Chief Inspector Balmer who was conducting the police investigation into the murders. CI Balmer reported on this development to his superior, Chief Superintendent Smith, in writing dated 17 September 1949. He said: “I am satisfied GRAHAM is telling the truth. Whether JOHNSON is, is of course, a different matter.” CS Smith endorsed the report on 20 September 1949 as follows: “I beg to report that although the statement of GRAHAM is very interesting, it does not seem that we can do anything further regarding JOHNSON at the moment.” The report was then passed to the Assistant Chief Constable, who initialled it and added the word “Seen”. 4. The subsequent statements of Northam and Dickson were also made to CI Balmer, as was Graham’s second statement. In the course of his evidence at the joint trial, CI Balmer said that the first time he had met Graham in connection with the case was on 19 November 1949 CI Balmer said, in answer to a question from the judge, that “The first time I saw him in connection with this case was on this date – 19 th March”. The reference to “March” was clearly a slip for “November”, since 19 November not March was the subject matter of the questioning at this point and “this date” had already been identified as 19 November. 19 March was the date of the murders. . At Kelly’s re-trial Graham also said that he had first met CI Balmer on 19 November (both in cross-examination and re-examination), that “the only persons who ever spoke to me about this case was Kelly and Connolly”, and that “I am on oath in this box and I can only say I knew nothing about it until I was told by these two people charged with it”. A short while later, in direct answer to the judge, Graham again said that he first saw CI Balmer on 19 November. All that evidence was false and probably deliberately so. CI Balmer died on 3 May 1970, and thus no explanation from him regarding the non-disclosure of Graham’s first statement or any other matter is available. 5. Despite the evidence of Northam and Dickson, and the evidence of Graham concerning the prison confessions of Kelly and Connolly, their first trial, before Oliver J, ended on 28 January 1950 without any verdicts. Within two days the Liverpool Echo was reporting that the retrial would take place, again in Liverpool, at the next assizes commencing on 31 January 1950. In the event, there was a slight delay, during which the trials of Kelly and Connolly were split. Kelly’s retrial began on 2 February and ended on 8 February with his conviction. He was tried only for the manager’s murder. He was sentenced to death. The judge, Cassels J, said that “the Jury have rightly found you guilty”. He commended Northam and Dickson for their evidence and said he would forward a recommendation regarding Graham. Kelly’s appeal was heard and dismissed on 10 March. He was hanged on 28 March. His daughter, Kathleen Hughes, is now the applicant in the reference which has led to this appeal. 6. In a letter dated 28 February 1950 from the Deputy Director of Public Prosecutions, to the Under Secretary of State at the Home Office, the former wrote as follows: “The all-important evidence for the prosecution consisted of a woman named Dickson and a man named Northam, both persons of bad character, who swore that they were in a Public House on the night of the murder with Kelly and Connolly, that they heard the robbery of the cinema planned by these men, and that after the shooting, Kelly admitted that he had shot the Manager and the Under-Manager and Connolly stated that he had waited outside the cinema but that he ran away as soon as he heard the shots. Graham corroborated the evidence of Dickson and Northam, because he swore that in conversations which he had with both accused in prison, each admitted to him the part which each had played in the commission of the crime, which was substantially the same as the admissions which they had made to Dickson and Northam prior to their arrest. “I am of the opinion that but for the evidence that Graham gave before Mr Justice Cassels, Kelly would not have been convicted.” 7. The Under Secretary replied on 13 March 1950 to confirm the Secretary of State’s decision to recommend the remission of the remainder of Graham’s sentence and his immediate release from custody. 8. Connolly was due to be tried separately on 13 February 1950, soon after Kelly’s conviction. On that day, in circumstances which we will need to consider in detail below, he was given the opportunity to plead to new charges of robbery and conspiracy to rob. He pleaded guilty, and was sentenced to ten years imprisonment on the count of robbery and two years concurrent on the count of conspiracy. The prosecution offered no evidence on the counts of murder, and the jury were directed to acquit. 9. Connolly was released from prison in about 1956. He died on 18 April 1997. His widow, Eileen Connolly, is now the applicant in the reference which has led to this appeal. 10. Before his death Connolly, then a hotel doorman, met a businessman who was a guest in the hotel where he was working. That was in the middle of 1991. The businessman was Mr Luigi Santangeli, who as a teenager had tried to attend the joint trial in Liverpool, but failed because of the great number of people queuing to get in. As a result of what he was told by Connolly, Mr Santangeli resolved to research the case. Connolly had said that neither he nor Kelly had been involved in the murders. Mr Santangeli believed him and felt he had a responsibility to bring the matter into the public domain. Later that year he obtained access from the police to the case papers. Among them he found the original manuscript and a typed version of Graham’s first statement. A visit to the public records office in July 1994 produced the notice of additional evidence dated 12 January 1950 relating to Graham’s second statement. Also in 1994 he visited the cells in Walton Prison where Kelly and Connolly had been kept on remand awaiting trial. At his request recordings were made of interviews with Connolly conducted in August 1993 and October 1994 by Mr Roger Phillips and Mr Roger Wilkes respectively, both BBC journalists: the transcripts of those interviews are among the material which has come before this court as a result of the CCRC references. 11. Also among that material are the statements and additional statements of Northam and Dickson made on 29 September and 10 October 1949. These were not mentioned in the judge’s summing up of the re-trial and do not appear to have been disclosed to the defence: although the defence may have known of their existence there is no sign that they knew of their contents. The significance is that a comparison of the earlier statements with the additional statements, and of the statements as a whole with evidence given at committal and at trial, may have affected those witnesses’ credibility. 12. The grounds of appeal in the case of Kelly are that his conviction is unsafe because (1) Graham’s first statement was not disclosed; (2) Northam’s and Dickson’s statements were not disclosed; and (3) Kelly’s retrial was severed from that of Connolly’s without just or legal cause. The grounds of appeal in the case of Connolly are that his conviction is unsafe because (1) his guilty pleas were induced by duress of circumstances and/or oppression such as effectively denied him a free choice in making his plea; and (2) the first statement of Graham and the statements of Northam and Dickson were not disclosed. 13. On behalf of the Crown, Mr Pownall QC accepted the authenticity of Graham’s first statement and that even under the duties of disclosure which applied in 1949 it should have been disclosed and was not. Furthermore he accepted that its disclosure would have been likely to have undermined the integrity of at least Graham and CI Balmer, that the importance of Graham’s evidence was accurately reflected in the deputy DPP’s letter (see para 6 above: “but for the evidence that Graham gave…Kelly would not have been convicted”), and that the integrity of CI Balmer was also of paramount importance. He said: “If Graham’s account had been severely undermined by reason of his earlier account, an already weak case became significantly less compelling.” In these circumstances the Crown felt unable to argue that the remaining evidence was of such quality or strength as to permit submissions that the conviction of Kelly was safe. Nevertheless, Mr Pownall submitted that if this had been a modern case, and Kelly were alive, the Crown would have sought a re-trial. 14. In the circumstances, Mr Pownall did not address the two other grounds in Kelly’s appeal at length. He submitted, however, that although the defence were aware of the fact that both Northam and Dickson had made statements to the police, they either chose not to see them or asked and were refused. Nevertheless, he accepted that they were clearly disclosable and should in fairness have been disclosed, and that if they had been, the defence would have been able still further to undermine the prosecution case. He submitted that if these further non-disclosures had stood alone, the conviction would have remained safe: as it was, they added significant weight to the principal ground of appeal. 15. As for severance of the re-trial, Mr Pownall accepted that no proper basis existed for it, but again submitted that the fact that Kelly stood trial alone would not of itself have rendered the verdict unsafe. 16. The Crown therefore did not seek to uphold the conviction of Kelly for murder. It did, however, seek to uphold Connolly’s convictions, on the ground that his pleas of guilty were unequivocal, freely tendered and not attributable to undue pressure. Nor, it was submitted, were they founded upon any understanding that there was no other material (the undisclosed statements) capable of undermining Graham, Northam or Dickson’s evidence. Moreover, the application to sever his trial from Kelly was made by his own counsel, in his presence and thus presumably with his authority. 17. At the hearing of these appeals we decided that they should both be allowed. We gave brief reasons at the time, while reserving our fuller judgment. We said (inter alia): “Although there was other significant evidence in [Kelly’s] trial, in particular the evidence of the witnesses Northam and Dickson, who said that Kelly and Connolly had in their presence planned the robbery of the Cameo Cinema and had later confessed to what had happened there, in the case of Kelly that he had fired the fatal shots and in the case of Connolly that he had stood outside when Kelly went into the manager’s office, both of those witnesses, Northam and Dickson, were treated as accomplices and the judge, Cassels J, directed the jury that they should be cautious about convicting Kelly without corroboration. He also directed the jury that they could find corroboration in the evidence of Graham. If Graham’s earlier statement implicating Johnson had been disclosed, Kelly’s counsel could have made effective use at trial of the oddity that in September 1949 Graham had implicated Johnson and in November 1949 had implicated Kelly (and Connolly) as the Cameo Cinema culprits. The defence might well have been able to discredit Graham’s evidence in the eyes of the jury, and in doing so, might also have been able to call into question certain aspects of the police investigations and evidence… “The Crown’s case against Kelly was entirely circumstantial, lacked any forensic support, and rested essentially on the evidence of Northam, Dickson and Graham. The Crown recognised at the time that Graham’s evidence had made a significant contribution to Kelly’s conviction, and Graham was promptly rewarded by his immediate release from his then current sentence. The jury at the first joint trial of Kelly and Connolly had been unable to agree a verdict. The Crown acknowledges that the failure to disclose Graham’s earlier statement was in breach of the Crown’s obligations, even as the law recognised them to be at the time. “We therefore agree that the Crown’s failure to disclose Graham’s earlier statement renders Kelly’s conviction at his retrial unsafe. Unfortunately, Kelly was sentenced to death and, after losing his appeal, hanged. “In the case of Connolly, the matter is complicated by the fact that his trial was severed from that of Kelly. If it had not been, as it should not have been, Connolly may well have been convicted as well, although his case was different since the Crown did not allege that he had been in the manager’s office at the time of the murders. Following Kelly’s conviction at his retrial, however, Connolly pleaded not guilty to murder, but guilty to new charges of robbery and conspiracy to rob which were added at the last moment to the indictment. The question is whether Connolly’s pleas of guilt to the robbery charges are undermined so as to render his convictions on those charges unsafe in the light of the Crown’s failure to disclose Graham’s earlier statement and also in the light of the circumstances in which those pleas were tendered. The Crown has submitted that those pleas were entirely voluntary and that those convictions remain safe. We disagree. Once Kelly’s conviction has been declared unsafe for the reasons stated above, it is in our judgment unrealistic to regard Connolly’s convictions, albeit in terms of robbery rather than murder, as safe. If Kelly cannot safely be regarded as the murderer, Connolly cannot safely be regarded as his accomplice in a case where the evidence against the two was essentially the same and came from the same sources. If anything, the evidence against Connolly was weaker. Kelly’s conviction, moreover, had been obtained in part by reason of the non-disclosure of Graham’s statement. Connolly’s convictions, although the product of pleas of guilt, can themselves be said to be founded in part on the Crown’s failure to make proper disclosure of the Graham statement as well as on the unenviable position of Connolly who, despite the earlier maintenance of his innocence, had to face up to the fact that Kelly had been convicted and sentenced to death. In those circumstances his own counsel said, in mitigation, that he had advised him to plead guilty on the terms available to him. Had Graham’s earlier statement been available, Connolly’s counsel’s advice may well have been very different. ” 18. We turn to a fuller and more detailed explanation of our reasons for allowing the appeals of both Kelly and Connolly and quashing their convictions. The murders 19. The murders took place at about 9.35 pm on the night of Saturday 19 March 1949. Witnesses who heard the gunshots said variously that they occurred at times between 9.32 and 9.40. Eye witnesses among the staff who saw the gunman leave but could not identify him, described him as wearing a brown overcoat with a belt, a trilby hat pulled down over his head and a black silk scarf masking the lower part of his face. The Home Office pathologist’s evidence is significant. Dr Grace said the manager had died from a single bullet wound (which entered the body on the left side of the chest), but that the assistant manager had been shot three times: once through the palm of the right hand (consistent with the hand being raised in an attitude of self-protection), once into the chest by the collar-bone and out again following a superficial course, and thirdly, the fatal shot, in the back. That third shot struck a rib and “went right down through the body and through the liver, causing death, and lodged on the inside of the top of the thigh”. This caused Dr Grace to consider that Mr Catterall was probably on his hands and knees at the time. 20. Another witness, Dr Firth, who gave evidence concerning the murder weapon (which was never found) said that the cartridge cases found at the scene revealed that the bullets had undoubtedly been fired from an automatic pistol. 21. The murderer appears to have known the cinema well enough to get to the manager’s office, and to cut the wires of a telephone from which the staff sought to raise the alarm. 22. One of the cinema staff who saw the gunman leave was the cinema fireman. He saw the gunman come out of the manager’s office with the gun in his hand. Johnson’s role 23. As stated above, Johnson was prosecuted as being an accomplice after the fact, but was acquitted on the direction of the judge. He immediately thereafter was said by Graham to have confessed in prison to being the actual gunman. Johnson’s confession to the police was ruled inadmissible because he had been promised bail (in the hope that he would lead the police to the murderer): indeed, a policeman had stood surety for bail. 24. Johnson’s (unsigned) statements to the police were to the effect that he had gone with the gunman to the cinema earlier in the week to reconnoitre the place (and that he was in any event familiar with the cinema) and had been shown the gun (which he drew, a picture of an automatic pistol), and had arranged to meet the gunman again outside the Boundary Hotel a short distance from the cinema at 10.45 pm on the Saturday night. While waiting there, a policeman had checked his identity card (a fact later verified by PC 247, PC Thompson): after which the gunman had approached him and given him the gun to conceal, which he had done. In a police report dated 16 May 1949 made by Chief Inspector Morris, reference is made to the statement of PC Thompson to the effect that he had seen a man outside the Boundary Hotel at 10.15 on the night of the murders. The man appeared uneasy and was looking around him. The officer asked what he was doing and was told that he was waiting for someone. The officer then asked him for his identity card, which was produced; but no note was made of it at the time. CI Morris’s report comments that, although it would seem that Johnson planned to plead not guilty, as far as could be checked everything said by him had been found to be true. According to a further detailed report concerning the police efforts to solve the crime and Johnson’s trial made by CS Smith dated 22 June 1949, PC Thompson testified at Johnson’s trial to speaking to a man whom he identified as Johnson. The report also refers to the statement of a prisoner, Bernard McBride, who said that while in custody Johnson continually reiterated his knowledge of the crime, the murderer and where the gun was concealed. 25. Johnson was acquitted on 15 June 1949. Graham’s first statement, dated 15 September 1949, said that in the week before his trial, after a visit from Johnson’s counsel, Miss Rose Heilbron KC, Johnson told him that she had advised that everything turned on legal argument, and that if she failed on that, he would get life. He said: “Well, if it fails I’m going to tell the truth and go into ‘High Wing’ [ie the condemned cell], I couldn’t do 20 years in here.” After his acquittal, however, “he was in great spirits and has been ever since” and spoke often of how he had committed the murders. The statement continued: “He said, ‘I had the place lined up for some time. I often used to go there. Anyway on this night I went up to the manager’s office…When I asked them for the cash one of them went for me so I let him have it right away. The other fellow then went for me so I put a bullet in him too but it went into his neck and he dropped to his knees and turned over. The first was killed right away and I thought to myself well, this bugger might recognize me, so I shot him in the back to finish him off. I put three bullets into him before he went out, but the first chap went out when I put the first in him…as I was going out I bumped into the fireman by the top of the stairs. How that fellow didn’t recognize me I don’t know… “I ran out but funny enough I didn’t like to leave the district. I mooched around and then to finish it off I was stopped by a copper. He asked me for my identity card and I thought he was going to search me but he didn’t. If he had I was finished because I had the gun on me then. Anyway I went and got rid of it right away… “He also told a prisoner named McBRIDE that he’s done it. “I am willing to give evidence any time you want.” 26. Following the submission of this statement to the CCRC, forensic investigations were carried out into its authenticity. An original handwritten statement and a typed copy were examined. The conclusions were that they were genuine and they are acknowledged by the Crown to be so. The typed copy states that it was taken by CI Balmer. 27. It is plain from the joint trial and Kelly’s second trial, and acknowledged by the Crown, that the statement was not disclosed. The Crown’s acceptance that its non-disclosure renders Kelly’s conviction unsafe is made irrespective of the motivation of such non-disclosure. Mr Pownall submits that its survival, together with CI Balmer’s report on it dated 17 September 1949 which was itself seen and countersigned by CI Balmer’s superiors, indicates that there was no conspiracy or bad faith involved. The non-disclosure of the statements of Northam and Dickson as well may simply suggest that there was a practice of non-disclosure of statements: even though it is conceded that even at that time the obligation of disclosure of such statements in the interests of fairness already existed. Nevertheless, when the evidence of Graham at both trials and of CI Balmer at the first trial (see para 4 above) to the effect that the two had not met in the context of the case prior to 19 September is taken into account, and in the absence of any explanation for such testimony, the conclusion that such evidence amounted to deliberate concealment becomes at the least highly likely. 28. The importance of such non-disclosure is not in dispute, and that significance is enhanced if non-disclosure is viewed as concealment. The mere fact that Graham allegedly received confessions of the murders from two different sources would of itself have cast doubt on the totality of his evidence. So would his inaccuracies or lies about his first meeting with CI Balmer, just as the latter’s evidence would have been similarly undermined. Of particular importance, moreover, are the details of the shootings described in Graham’s first statement. From where did Graham get those details? It is not suggested that they were available in the press. They more or less accurately reflect Dr Grace’s testimony. Graham could only have got them from Johnson or the police. Johnson could only have got them because he knew the gunman or was himself the gunman. Some of them emerged again in Northam’s evidence (see below). Northam said that he met Kelly on Monday, 21 March (two days after the murders) and that Kelly then told him what had happened in the manager’s office: he had shot the manager (once) when another man walked into the room, who, after he had also shot him, “fell to his knees” and was then shot again. Without any knowledge of Graham’s first statement, this evidence from Northam was naturally viewed as highly probative. The judge himself understandably stressed this evidence at the very end of his summing-up, linking it with Graham’s evidence of Kelly’s confession to him, when he said: “ “He fell to his knees” – according to Dr Grace the bullet that killed Catterall, the assistant manager, entered his back, struck his rib, went right down the body and went through the liver on the way down and was finally found on the inside of the thigh. Was Catterall shot while he was on his knees? Who knew that? Only one person. Has Graham imagined his evidence? If you have a reasonable doubt, you will find him not guilty. If, upon the evidence, you come to the conclusion that George Kelly is the man who, on that night of March 19 th of last year, shot that cinema manager, Leonard Thomas, and thus brought his life of 44 years to an end, you will find him guilty. Will you now please consider your verdict.” 29. If Graham’s first statement had been disclosed, the judge could not have ended his summing-up in this way. The implicit reference to Kelly as the “Only one person” who could have known that Catterall was shot while he was on his knees could not have been made. On this point alone Northam’s evidence would have been scrutinised with knowledge of what Graham had said in his first statement as to what Johnson had allegedly told him. Moreover in this respect Graham’s evidence as corroboration of Northam’s would have suffered a double blow: both because of Graham’s own first statement, and because Northam’s reference to Catterall being on his knees would have lost its power and become suspect in itself. We will revert to some further difficulties about Northam’s and Dickson’s evidence below. 30. Graham’s first statement was made before the committal proceedings and thus its details could not have been obtained from press reports. In addition to the details of the shootings which correspond to Dr Grace’s findings, statements of PC Thompson, of the fireman (Joseph Griffin), and of the prisoner McBride were consistent with or confirmed details of Johnson’s alleged account to Graham. Graham’s second statement 31. It appears that there was no such second statement as a document in itself, at any rate none has been found, and that is so despite CI Balmer’s evidence that Graham had signed a statement. Instead it appears that Graham’s ultimate evidence was based on the notice of additional evidence served on 12 January 1950, which is itself drafted in the form of a statement. Thus it begins: “TAKE NOTICE that upon your Trial an additional witness will be called of whose evidence the following is a copy: ROBERT GRAHAM, 16 Charlotte Street, Preston, says:…” It also appears that this additional evidence came forward as a result of (at least) three interviews between Graham and CI Balmer on 21, 23 and 28 November 1949. There are no immediate records of those interviews, but there is a report by CI Balmer dated 30 November 1949 which purports to set out verbatim what Graham said, and from which it appears that their first meeting was on 21 November and not 19 November as CI Balmer had said at the first trial and Graham had said at both trials. An oddity is that in the joint trial CI Balmer gave evidence that he saw Graham on 19 November and that Graham then began to make a statement, but something happened and he left over the statement until 21 November, and then had seen Graham twice more – so, all in all, four meetings. The report, however, refers only to three meetings. 32. Thus the report states that on 21 November CI Balmer received a telephone call from the Preston police to tell him that Graham, then in Walton Prison, wanted to see him about the Cameo murders; and that the other two meetings were also at Graham’s request. The effect of Graham’s second statement and evidence was that he, Kelly and Connolly were in separate cells in the prison’s hospital. Kelly and Connolly could not communicate with each other from their cells and were not allowed to exercise together, but he, Graham, exercised with each of them on alternate days. They used him to pass messages to each other, and to find out what the other was going to do. He had not known either of them before. He met Connolly first, on 14 November, when Connolly told him what he was in for, but that he had nothing to do with the murders “other than being in the same company with the fellow that did it”. He then explained that he was in a pub with Kelly, Northam and Dickson and they decided on a job at the Cameo and he went there with Kelly and Kelly did the shootings, while he stayed outside the door. Next day Graham spoke to Kelly. Kelly said he borrowed a coat from Northam, that he shot the fellows but Connolly would not go in; then he got rid of the hat and coat and “was in my pub having a drink five minutes later. My life hangs on that five minutes”. The next day Graham met Connolly again. Connolly complained that Kelly had foolishly pretended on the day of their arrest that they did not know one another. Graham also said that Kelly told him that when he and Connolly met up at the Star pub on the day after the murders (Sunday 20 March) he called Connolly “a yellow bastard” and told Northam that he would give him back his coat the next day; also that on the day of his arrest, he had gone to see CI Balmer about an entirely different matter “and the next thing I was told was that I was going to be charged with murder”. 33. CI Balmer commented in his report that Graham had told him things “which were not known to any members of the public, and were not referred to in any press reports. These facts were solely known to Ch. Supt. Smith, myself, and the prisoner who uttered them. It is obvious, therefore, that GRAHAM is telling the truth.” CI Balmer then identified these facts, of which there were three: (i) Connolly said that he had sent for CI Balmer soon after his arrest, but changed his mind about saying anything and made an excuse; (ii) Connolly said that on the day before the murders he had just drawn £15 in wages; (iii) Kelly’s comment about the circumstances of his arrest (above). CI Balmer’s reference to press reports was relevant, since Graham was on remand without loss of privileges and had access to newspaper reports about the committal proceedings. 34. At Kelly’s retrial Cassels J summed up Graham’s evidence in very much the terms found in CI Balmer’s report and in the notice of additional evidence. 35. Kelly at both his trials and Connolly at the joint trial each gave evidence denying any such conversations with Graham. Kelly said that they had no need to use him to pass messages between them, since they could communicate with each other from their respective cells without difficulty. This was a matter investigated by Mr Santangeli on his visit to the hospital wing at Walton Prison, then in the same condition as in November 1949. Kelly’s and Connolly’s cells had been identified at the trials. In his statement to the CCRC Mr Santangeli said that he, Mr Bill Morrison (playwright) and the assistant governor had conducted an experiment and found that communication between the cells was possible without shouting, albeit at a voice pitch above normal conversational level. The Crown accepted that, contrary to Graham’s evidence, it was possible for Kelly and Connolly to speak to one another from their respective cells. Although a subsidiary matter, and evidence which clearly could have been obtained for trial, this is a further pointer to the unsatisfactory nature of Graham’s second statement when once that is viewed in the light of the non-disclosure of his first statement and his false evidence which concealed the occasion of its making. Northam’s and Dickson’s evidence 36. We have already referred to the Crown’s acceptance that Northam’s and Dickson’s statements were not disclosed to the defence, although the existence of at any rate their first statements, those made on 29 September 1949, was known. 37. The full history of Northam’s and Dickson’s roles in the case is complex, and since the Crown accepts that Kelly’s conviction is not saved by their evidence we do not think that it is necessary to set it out in full. Nevertheless, as briefly as we can, the position is as follows. 38. At the trials Northam and Dickson gave evidence directly implicating Kelly and Connolly both in the planning of the Cameo cinema robbery on the evening of 19 March at the Beehive pub and in subsequent confessions, for instance on Sunday 20 and Monday 21 March, as well as about the lending by Northam to Kelly of Northam’s coat, and other incriminating matters. If that evidence had come forward from entirely independent witnesses and did not suffer from certain defects which we will seek to set out, it might have been considered to be powerful material. As it was, they were rightly regarded as accomplices on whose evidence Cassels J had to direct the jury that it would be dangerous to convict without corroboration: “Let me warn you that it is dangerous to convict a prisoner on the uncorroborated testimony of accomplices, although it is within your province to do so if you choose…The evidence of one accomplice cannot be corroborated by another…But a prisoner’s conduct in the circumstances of the case may be corroboration. Graham’s evidence, if you accept it, may be corroboration, because you may think it strengthens the other evidence. That is a matter for you. Whatever description may be given to Graham – and you may think that he has laid himself open to many – but whatever description is given to that man, he cannot be described as an accomplice. A description of the coat worn by the murderer that night may also be corroboration. That again is a matter for you.” 39. Apart from the last throwaway line about the coat, the judge focussed upon Graham’s evidence as the possible corroboration; and it was to Graham’s evidence that the judge returned, as set out above, in the closing lines of his summing-up. 40. On 4 April 1949 the police received an anonymous letter from someone who wrote that they were “turning informer for gain”. The letter said that the writer and others including a girl had heard about the murderer’s plan for the robbery: in the end “only two went” and one of them lost his nerve and would not go in and “has not been seen since”. The writer had seen the murderer “5 days ago” and was told that he was “in it with him”: therefore “what I want to know is how I stand…if I turn King’s evidence.” As proof of truth the writer said that the gunman had thrown the gun in the pond in the park on Edge Lane. (The pond was subsequently dragged, but no gun was found, although CI Balmer said that he considered that it could still be buried there in the mud.) The letter asked for a reply via the personal column in The Echo, and offered “both there names also some of the bullets he left with me”, provided a promise of immunity was given. The police responded as asked, but heard nothing further. The letter is referred to in the report of CS Smith dated 22 June 1949, following the failure of the Johnson trial. 41. The same report states that at some time after the letter was received Dickson “appeared on the scene” and stated that the letter had been written by Connolly. He was therefore interrogated, but he ridiculed Dickson’s allegations and “his alibi appeared to be perfect”. Dickson then disappeared. Her partner was Northam. The rest of the report is concerned with Johnson and his trial. 42. The anonymous letter was in evidence at the trials. Northam and Dickson said it had been written by themselves and contained both truth and lies. 43. It appears from the evidence of CI Balmer at the retrial that on 13 May 1949 Dickson “sent for” him. On that occasion she said nothing about Kelly, and nothing about the meeting at the Beehive on the evening of 19 March or any other meetings with Kelly or Connolly. She merely told CI Balmer to see Connolly. CI Balmer did not say that she told him that Connolly was the writer of the letter, as CS Smith’s report had it. CI Balmer therefore saw Connolly, but got no information from him. He saw Dickson again on 16 May, and she told him “I told you to get Connolly; let him talk. If the gang want to get anybody, they can get him, not me.” CI Balmer then said he saw Dickson a third time on 23 May: she again said nothing about the Beehive. 44. In the meantime the police were concentrating on Johnson, from 2 May, when he was seen for the first time, until his acquittal on 15 June. 45. Then on 29 September 1949 both Dickson and Northam made statements. They had been promised immunity. At the retrial CI Balmer said this was the earliest date he learned from those witnesses about Kelly being involved in the murders. 46. Northam’s statement of that date began by saying “I want to tell the whole truth about the Cameo Murder…” He related how on the evening of Saturday 19 March he and Dickson had met Kelly and Connolly in the Beehive. They discussed possible robberies. One venue mooted was a funfair, where Kelly said they would have to cut the wires – Northam said he saw the two prongs of a pair of pliers sticking out “when his coat or mac was open”. It was Connolly who first mooted the Cameo, adding that a gun (or dummy) would be necessary. Kelly then pulled out a gun and a handful of bullets and loaded the magazine. Northam refused to go along with them. He and Dickson went home. On the next day, Sunday 20 March, the murders were in the papers, but “Jacky [ie Dickson] and me stayed in Birkenhead all day.” On Monday, 21 March, Northam met Kelly outside the Palais de Luxe. They discussed the murders, and Kelly accused Connolly of letting him down – “he’d got scared and was yellow”. He described the shootings, first the manager (“I shot him”) and then the assistant manager who came in at that point (“I saw red then and shot him once. He dropped on his knees and said something to me and so I shot him again…”). He could not open the door and so shot the lock off. He ran off, and Connolly was nowhere to be seen. Later Northam got worried and wrote the anonymous letter and gave it to Dickson to post: but he was too scared of Kelly to answer the police’s personal advertisement in The Echo. 47. It may be observed that there is nothing in that statement about lending Kelly his coat; nor about its return; nor about meeting Kelly and Connolly on Sunday 20 March. The reference to the pliers sticking out “when his coat or mac was open” was an oddity. Mention of pliers was relevant, for the cinema’s telephone wire had been cut, but nothing was said about this during his evidence at trial, and talk of “his coat or mac” did not suggest the lending of Northam’s own coat. 48. The omission about the coat was dealt with in Northam’s statement of 10 October 1949. He said Kelly asked him to lend it to him “as he was cold”, which he did. Kelly left the pub wearing it “with the belt fastened around him”. Kelly showed a woman’s small brown apron which he said “would do for a mask”. At their meeting on Monday 21 March Kelly said he would fetch the coat and returned with it within 15 minutes. Northam handed to the police an overcoat on 10 October, which he said was the coat in question, “but I cannot now find the belt off it. It has the belt loops on it.” (The overcoat was recovered from the home of Kelly’s parents.) He also said that on the Monday Kelly told him both that the gun was in the soil in the park and that it was in the lake. There was still nothing about a meeting on Sunday 20 March. 49. In her statement of 29 September Dickson gave similar evidence about the conversation “in a passage” in the Beehive on the Saturday night. She too said nothing about the lending of a coat, and nothing about a further meeting on the Sunday: Northam and she stayed in Birkenhead. On the Monday she went with Northam to Liverpool, left him at Lime Street, and when she met up with him again, he told her he had met Kelly. A few days later she met Connolly, and he had given her a handkerchief filled with bullets: when she showed them to Northam, he kept six and later gave them back to her, and she threw them down a drain. About two weeks after that she saw Connolly again, and he then told her that he and Kelly had gone to the Cameo, and he waited by the door when Kelly went inside. He ran away when he heard a shot. She posted the anonymous letter to the police which Northam had written. In the final paragraph of her statement she said that in the Beehive on the night of the murders Kelly had been wearing “a dark raincoat or overcoat with a belt around it”. However, Dickson also made a brief further statement on 10 October in which she said that Northam lent Kelly his overcoat as Kelly was cold, and she identified the overcoat that Northam had provided to the police as the overcoat in question, save that on 19 March it had had a belt which Kelly had fastened. She also said that before Kelly had left the pub that night he took a trilby hat “from his jacket pocket” and also showed them a small brown apron which he said would do for a mask. However, like the evidence about the pliers, the evidence about the trilby hat was not advanced either at the committal or at the trials. Those omissions suggest that not even the prosecution had access to Northam’s and Dickson’s statements. 50. It was only at the committal proceedings, which took place from 19 to 22 October 1949, that Northam and Dickson said that on Sunday 20 March they had not stayed at home in Birkenhead but had gone, by arrangement made the previous evening, to meet Kelly and Connolly at a pub in Brownlow Hill in Liverpool (the White Star). Connolly was scared and talking of leaving the country. Kelly, however, acted confidently and said CI Balmer had been to see him at home that morning (which had in fact happened) and that he had a good alibi. He called Connolly a yellow bastard, and threatened him (and Northam and Dickson). Northam asked for his coat back, and Kelly said he would fetch it the next day. Dickson also said that Kelly advised Connolly to get himself an alibi, and Connolly said he would figure one out with his wife. 51. These developments in the accounts of Northam and Dickson were obscured in the evidence given at the retrial by reason of the non-disclosure of their statements. Thus at the joint trial CI Balmer had said that he had first taken a statement from Northam and Dickson on 29 September. At the retrial Northam said that he had first told the police about the Beehive meeting (Saturday evening) and the White Star pub meeting (Sunday) and the Lime Street meeting (Monday) in September, but had omitted any mention of lending his overcoat until 9 or 10 October. That last fact appears to have been known to Miss Heilbron, cross-examining on behalf of Kelly, but it is not clear how she came to that knowledge. It may be that it emerged as a result of Northam’s production on 10 October of the overcoat to the police. In re-examination by Mr William Gorman KC, who was leading for the Crown, there was this passage: “Q. On the 29 th September when you gave that statement to the police did you then omit anything at all of what you have given in evidence, either before the Magistrates or here? A. Nothing at all – just the overcoat.” 52. That demonstrates that even prosecuting counsel was not aware of the contents of the 29 September statements. Northam’s answer, like his answer in cross-examination, was also a lie, so far as concerned any mention of the meeting on the Sunday at the White Star. So it was that the judge summed up this part of his chronology as follows: “September 29 th : Northam gives all the details to the Police except about the overcoat … October 10 th : the coat handed to the Police.” 53. CI Balmer in his evidence also obscured the same point. Miss Heilbron asked: “Q. Would you tell my Lord and the Jury what was the earliest date you learned from Northam and Dickson about Kelly being involved in this murder? A. The 29 th September. “Q. What was the date you heard of the Beehive? The same date. “Q. And the interview on the Sunday? A. Well, I take it about the same date. “Q. And the Monday in Lime Street? The same date… “Q. The first you learned of the overcoat was October 10 th ? A. Yes.” 54. Thus CI Balmer deliberately, as it would appear, obscured the point that not only had the evidence about the Sunday meeting at the White Star not emerged at the time of the first statements, but that those statements positively asserted that the witnesses had stayed at home in Birkenhead all day. CI Balmer was, however, well aware of the late appearance of the meeting at the White Star on Sunday, for on 26 October 1949, a few days after the committal proceedings, he wrote a report about it to CS Smith. In it he referred to his earlier report of 12 October and stated that since that time Northam and Dickson had “recalled a further meeting”, and he set out their further evidence. He also stated: “The additional information was given to us by the witnesses NORTHAM and DICKSON prior to the Court proceedings and was embodied in their statements.” However, no supplementary or refashioned statements have been found. 55. Two further points about the late appearance of evidence about the Sunday meeting may be mentioned. One is that, in the absence of any mention of it, Northam has his next meeting with Kelly, that in Lime Street on the Monday, as being the occasion when Kelly told him about the murders. If, however, they had met on the Sunday, it would have been more likely for that conversation to have occurred on that day rather than on the Monday. Secondly, part of Graham’s second statement has Kelly make reference to the Sunday meeting: how he had met Connolly and Northam at the Star on that day, and arranged to return the coat, and called Connolly a yellow bastard. The link between a vulnerable part of Northam’s and Dickson’s evidence and material contained in Graham’s second statement (made of course in November 1949 and thus after the committal proceedings) magnifies the potential consequences of the non-disclosures on the fairness of the trial and the safety of Kelly’s conviction. Kelly’s evidence 56. Kelly gave evidence in his defence at both trials. He said that on the evening of 19 March he was in the Coach and Horses (some distance from the Beehive) with a man called Skelly, and later had been in the Leigh Arms, then at the Spofforth Hotel, and then back to the Leigh Arms and was there at the time of the murders and until closing time. The licensee of the Leigh Arms, Frederick Thomalla, who was called by the defence, said he saw Kelly, who was a regular, enter the premises at 9 pm, without a coat or a hat. The licensee of the Spofforth Hotel, a Mr Ellis, another prosecution witness, said he saw Kelly in his pub between 9.15 and 9.25 pm, again without coat or hat. Another prosecution witness, the barmaid Edna Bore, saw Kelly at the bar of the Leigh Arms at 9.45 pm. The clock at the Leigh Arms was set ten minutes fast. Kelly called two brothers, Reginald and Walter Brampton, to say that he was back at the Leigh Arms by about 9.30 pm. 57. The prosecution case was that Kelly had sufficient time to obtain the overcoat and hat from wherever he had stowed them, commit the murders, discard the coat (and put it or hide it somewhere safely, for on the prosecution case it was returned to Northam), and dispose of the gun in the park, some distance away, and arrive back at the Leigh Arms by 9.45 pm. 58. In this connection the evidence of Mr Thomalla, the licensee, was important, for he said he saw Kelly at the Leigh Arms both before and after the murders. Mr Thomalla was a former police officer, who had given a statement to CI Balmer. At the retrial he said that the second time he saw Kelly was at 9.50 pm in the buffet, again in a suit, his usual clothes, not a coat. He was cross-examined by Mr Gorman for the Crown. Mr Gorman put to him his signed statement, which read: “I am quite definite that George Kelly was not in my house at 9.30 p.m. on the night of the Cameo murder, but he was in the buffet at ten to 10.” Mr Thomalla told Mr Gorman that he “could not say it is true” and denied making that statement to CI Balmer. He said that what he had told CI Balmer, when he was asked by him if Kelly was in his pub at 9.30, was “Not to my knowledge”. Mr Gorman pursued the point: “Q. Why did you sign it? A. At the moment I signed this I was in a motor car, and I did not notice the word “definitely”. Q. What did you, a police officer of 23 years’ service, think you were signing? A. I signed that statement going along in a motor car. Q. Do you say you did not read it? A. I did not read it. Q. When did you decide that he may have been in at half past 9? A. When I told Mr. Balmer. Q. Then why did you not say to Mr Balmer: “I am not sure about it; he may have been in or he may not have been “? A. When I signed that I did not read it. I thought Mr. Balmer had put in “to my knowledge”.” 59. The strange discrepancy that has now emerged by reason of the material which has come forward as a result of the CCRC references, to which Mr Pownall himself has drawn attention in his skeleton, is that in a draft unsigned statement for Mr Thomalla dated 4 October 1949 which CI Balmer has referred to in and attached to his report dated 12 October 1949, Mr Thomalla is represented as saying not what was in his signed statement but the following: “Although I saw Kelly about 9.0 p.m. and again just before closing time, I cannot say whether or not he was in the house between those times . It would have been easy for him to leave between those times and I certainly did not serve him with any other drink” (emphasis added). 60. We are not sure whether Mr Thomalla made two statements and stuck to his first rather than his second (as Mr Pownall submitted), or whether Mr Thomalla’s remarks to the police were first drafted in one form and then drafted in another, in the form which he ultimately signed – in a motor-car. We would rather infer from the evidence which he gave at trial and the material we have seen (and we have not seen any signed statement) that the latter is what happened. CI Balmer’s role 61. The death of CI Balmer and thus the unavailability of any new evidence from him, or indeed from any other member of the police team investigating the Cameo murders, concerning the matters on which the appellants rely render the task of this court in assessing his role in the investigations and at trial difficult and troubling. The Crown accepts that on any view of the reason for the statements’ non-disclosure, even mere inadvertence, Kelly’s conviction is unsafe. It does appear, however, that, in addition to the non-disclosures, CI Balmer’s evidence was tailored to conceal both the fact that he had in September 1949 taken Graham’s first statement and the fact that Northam and Dickson had changed their account in relation to Sunday 20 March. Moreover, both Graham and Northam similarly concealed the same respective vulnerabilities concerning their evidence, apparently confident that the truth would not emerge. 62. As the Crown acknowledged, the integrity of CI Balmer was of paramount importance in the case. His evidence challenged Kelly’s alibi at several points, such as his account of what Kelly had said to him, when he visited him at his home on 20 March, about his whereabouts the previous evening. CI Balmer’s evidence was in turn challenged in cross-examination by Miss Heilbron. In this connection the discrepancy about Mr Thomalla’s statement is again relevant. CI Balmer was concerned with the close timings of the evidence about Kelly’s alibi and referred to them in his report of 26 October. He there pointed out that the Leigh Arms was an eight minute walk from the Cameo, and he discussed the timings of various sightings of Kelly at that pub. 63. In the circumstances we agree with Mr Pownall’s acceptance on behalf of the Crown that the matters identified before us must raise at the very least the strong possibility that proper disclosure might have undermined not merely Graham’s evidence, but also the integrity of CI Balmer which was itself central to the prosecution’s case. The splitting of the retrials 64. The joint trial ended on 28 January 1950 without any verdicts. On 30 January The Echo published a report that the retrial would take place at the next assizes commencing on 31 January. On that day Miss Heilbron, for Kelly, appeared before Oliver J, who had conducted the joint trial, to make an application and was referred to Cassels J. It is clear from the transcript of the hearing that day before Cassels J that an administrative decision had already been made that the retrial would be split for the convenience of counsel. It would seem that this decision was occasioned by the Parliamentary duties of Mr Basil Nield KC, as he then was, who had defended Connolly. Thus Miss Heilbron had to apply for a joint trial, objecting to the decision that had already been taken. She began: “I understand that this case is to be re-tried separately, that is to say, Kelly is to be tried first. My first point, on behalf of Kelly, is that I object to the re-trial separately.” 65. Among the reasons she cited was reliance on the authority of R v. Grondkowski and Malinowski [1946] KB 369 . The judge asked Connolly’s junior counsel then in court, Mr Clover, what his attitude to Miss Heilbron’s application was. Mr Clover said he had had no notice of it and no specific instructions. The Crown’s counsel, Mr Blackledge, said he had nothing to say on the subject. The judge said he would hear the matter debated on the first day of trial, which he was prepared to postpone until 2 February. 66. On that day, in the presence of both accused, Mr Edmund Rowson KC, who in the meantime had replaced Mr Nield as Connolly’s leading counsel, asked for a separate trial. Miss Heilbron, for Kelly, asked that the retrial should be a joint one, like the first trial, and developed her reasons. Mr Gorman, for the Crown, merely said that it was a matter for the judge’s discretion “and I do not think it proper to say one word as to the exercise of that discretion”, but, in answer to the judge, he said he offered no objection to a separate trial. Mr Rowson did not volunteer, and was not asked to advance, any reasons for his request for a separate trial. 67. The judge said: “The Court has considered the possibility of there being a separate trial in this case. Objection has been taken to that by learned Counsel appearing for the defence of the prisoner George Kelly. Learned Counsel appearing for the defence of the defendant Charles Connolly has formally applied for a separate trial, and learned Counsel for the prosecution says that he takes no part in the matter other than to say that the matter is one for the exercise of judicial discretion. “In the exercise of that judicial discretion, I direct that there shall be in this case a separate trial, and that the first of the defendants to be tried shall be George Kelly. A separate trial provides a plain issue for the jury concerning the one person to be tried. So far as I read the depositions, they seem to disclose that the two cases for the Prosecution differ in fact and in law in some important respects. A separate trial eliminates any evidence which is not directly against the person tried. I have come to the conclusion that it is in the interests of justice that the jury, in a long case like this, particularly on a re-trial and on a capital charge, should not have to dissect the evidence of individual witnesses and relate it to more than one person under trial. I do not think that the Defence is prejudiced, but, on the contrary, it may well be favoured by a separate trial, in that there will be before the jury no evidence other than that relevant to the issue being tried concerning one prisoner. Witnesses, whether for the prosecution or Defence, will be cross-examined once only, and the jury’s task and recollection will be simplified. I therefore direct, as I stated at the beginning, that there shall be a separate trial, and that that of George Kelly shall be taken first.” 68. On these appeals, Mr Pownall for the Crown does not seek to support that decision as being a proper exercise of the judge’s discretion but acknowledges that no proper basis existed for the trials of Kelly and Connolly being severed within five days of a jury failing to reach verdicts against either. We think that concession to be rightly made. In Grondkowski and Malinowski , which, although cited by Miss Heilbron, the judge did not address, Lord Goddard LCJ said at 371: “Prima facie it appears to the court that where the essence of the case is that the prisoners were engaged on a common enterprise, it is obviously right and proper that they should be jointly indicted and jointly tried, and in some cases it would be as much in the interest of the accused as of the prosecution that they should be.” 69. That case involved cut-throat defences, but Lord Goddard went on to emphasise that even in such cases the interests of justice would usually favour a joint trial. The cases of Kelly and Connolly, however, did not involve cut-throat defences, but complete denials: and although there were some differences in the Crown’s case against each, in particular that Connolly was only a secondary party and of course the Crown had to deal separately with the alibis of each, nevertheless in essence the Crown relied on the same evidence and principally on Northam, Dickson and Graham against both. The judge considered that Kelly would not be prejudiced and could even be favoured by separate trials, but it is hard to see the basis for either proposition. The jury would have heard Connolly’s evidence as well as Kelly’s, ie that not only was Connolly not a party to the murders, but he did not plan it with Kelly or go with him to the Cameo; and in general his evidence would have added his contradictions to the evidence of Northam, Dickson and Graham. 70. What is also disturbing is that it is clear that the original decision in favour of a split trial was ascribed to the convenience of counsel, and yet nothing was said about that by Cassels J in giving his reasons for the exercise of his discretion – even though when the issue came to be debated no reasons had been advanced on behalf of either the Crown or Connolly as to why there should be split trials. In his skeleton argument Mr Pownall accepted that “The reason for ordering separate trials though largely left unsaid in the course of argument appears to have been the fact that Connolly’s Counsel Mr Nield was involved in Parliamentary business”. 71. Mr Pownall nevertheless submitted that this error would not by itself have rendered the conviction of Kelly unsafe, and that it was, in itself, of no real weight. The test stated by Lord Goddard in Grondowski and Malinowski at 374 is: “The real test, after all, which must be applied by a court of criminal appeal on a matter which is essentially one of discretion is, has the exercise of discretion resulted in a miscarriage of justice? If improper prejudice has been created whether by a separate or by a joint trial – for as we showed at an earlier stage of this judgment prejudice might be caused to one prisoner by ordering a separate trial on the application of the other – this court will interfere but not otherwise.” 72. This issue was itself raised on Kelly’s 1950 appeal, but rejected. Mr Pownall submits that nothing new has arisen since then to make it proper for this court to take a different view. 73. We see the force of that submission (even though a transcript of the judgment on appeal is not available); and, since we agree with the Crown’s concession that Kelly’s conviction is rendered unsafe by the non-disclosure of Graham’s first statement (and, in conjunction with that, by the further non-disclosures of Northam’s and Dickson’s statements), it is not necessary for us to form a judgment about the independent effect of the erroneous splitting of the retrials. That, however, is subject to two further considerations. The first, is that we consider that the matter of the splitting of the retrials cannot be divorced from the new material which has emerged about the non-disclosure of the statements: and that viewed in that light, of which this court in 1950 did not have the benefit, the splitting of the trials becomes a material and substantial ingredient in our overall conclusion that Kelly did not have a fair trial and that his conviction is unsafe. 74. The second, is that on behalf of Connolly Mr William Waldron QC submitted to us that the decision to split the retrials was in truth conditioned not only on the convenience of counsel but on something further, namely an at least incipient discussion of a deal between the Crown and Connolly’s counsel that, if he would plead guilty to robbery, he would be acquitted of murder and receive a sentence of ten years. Indeed, as part of his submissions in relation to severance, Mr Newman QC, on behalf of Kelly, had submitted that there was an irresistible inference that the essence of such an accommodation had already been reached between the Crown and Connolly’s lawyers. Although the severance of the retrials was not a separate ground of appeal in the case of Connolly’s appeal, as it was in Kelly’s case, nevertheless as oral argument progressed it became clear that on analysis Connolly’s ground of appeal to the effect that his plea of guilty was obtained by undue pressure incorporated a complaint that part at least of that pressure was brought to bear on him by reason of the improper splitting off of his retrial. Mr Pownall, on the other hand, submitted that the splitting of the retrials and Connolly’s guilty plea were separate matters, and that just as the latter was unequivocal and voluntary, so the former must have been fully discussed with and authorised by Connolly: and in this connection Mr Pownall referred to the facts that on 31 January Mr Clover said that he had no specific instructions from Connolly, while on 2 February Mr Rowson applied for a split trial in the presence of Connolly. The question, he argued, must have been discussed in the interim. 75. We therefore turn to the circumstances of Connolly’s plea at his retrial. Connolly’s guilty plea 76. Connolly had pleaded not guilty at the joint trial and given evidence in his defence. How did he come to plead guilty to new charges of robbery and conspiracy to rob? Inevitably, the material on this issue now before this court is new. In principle all of it could of course have been before the trial judge. In practice, however, such material inevitably emerges only after the event. In the present case, that material largely consists of the transcripts made from the taped interviews given by Connolly in 1993 and 1994. There is also some correspondence with his trial solicitor, Mr Maxwell-Brown, and an unsigned record of an interview with Mr Maxwell-Brown conducted by Detective Superintendent Semple at the former’s home on 17 January 2003. DS Semple was in charge of the police enquiries which were necessitated by the CCRC references. Mr Maxwell-Brown is now very old and the Crown did not require his attendance at court. Everyone else who might have been able to assist is now dead. Mr Pownall did not formally object to admitting the transcripts, but he submitted, we think rightly, that they should be viewed with the greatest circumspection. He does, however, positively rely on the Maxwell-Brown material. 77. On 18 December 1991, which is after Mr Santangeli had taken an interest in his case, Connolly wrote to Mr Maxwell-Brown asking him to confirm that “I was advised by Mr Rowson KC to plead guilty”. On 30 December 1991 Mr Maxwell-Brown replied that he was unable to do so and continued: “After Kelly had been found guilty by the jury on his re-trial for murder, Counsel for the Crown informed Mr Rowson that the Prosecution would be prepared to seek the approval of the trial Judge, to the addition to the indictment against you of a charge of robbery. Also, if you were prepared to plead guilty to the lesser charge, the Court would be asked to consent to the murder charge being withdrawn. We were informed that this proposal had been mentioned to the Judge who had indicated his approval of the matter proceedings in that way. “Mr Rowson, Junior Counsel and myself immediately arranged to see you at Walton and what had been proposed was explained to you. No advice as to how you should plead to either charge was sought by you or offered by Counsel nor, I have no doubt whatsoever, would experienced Counsel, such as Mr Rowson, even consider doing so.” 78. There the matter rested, for Mr Maxwell-Brown ended his letter by saying that he regarded the correspondence as closed, until Connolly’s taped interviews. These were extensive and dealt with many matters, but we refer to them only for what Connolly there said about the circumstances of his plea. In the first of them, held on 26 August 1993, Connolly said that after the end of the first trial he did not see Mr Nield again; and that he did not see his new silk, Mr Rowson, until two days before his retrial (which was due to begin on 13 February 1950). In the meantime, although he had been present in court when it was decided to split off his trial, he had not been consulted upon that: “I didn’t have any say in the matter. I was just sitting there.” Then, at the conference two days before his retrial Mr Rowson, Mr Clover and Mr Maxwell-Brown came to see him. Mr Rowson said he had no chance of an acquittal (“The evidence against him [ie Kelly] is against you…”) and sought to persuade him to accept a deal, if one could be made, in order to save his life from the gallows. Otherwise his conviction would be just a formality. At first he refused, asserting his innocence, and then he said he would consult his parents (he was 26), but Mr Rowson said he could not do that, it was between them; and “Good God man…can’t you see I’m trying to save your life?” He asked what he would get, and was told ten years. “I said how do you know I’ll get ten years? He said I know you’ll get ten years and that was it.” Connolly said he’d think about it. In the end, he only finally made up his mind in the taxi going down to court. In court, he was surprised by having put to him an additional charge of conspiracy which Mr Rowson had not mentioned, and he said “Not guilty”: but Mr Rowson turned to him in the dock and said it did not matter, it was a formality, and so he pleaded guilty to that as well. But he was, he said, completely innocent. 79. Over a year later, on 25 October 1994, Connolly was interviewed again, this time by a different journalist. Connolly’s account of his sole consultation with Mr Rowson was the same; as was his description of his last minute decision and the mix-up over his plea to the charge of conspiracy (Mr Rowson: “it’s immaterial, the sentence is still the same”). But he also went into further detail about his motivation. He was concerned to be reassured that a plea of guilty would not affect Kelly’s appeal. He also said – “I think it’s only fair to say that the strongest instinct in man prevailed and that’s to save my own life.” He told his mother about it and she said “do what you want but I would sooner have you alive than dead”. But he had spent the rest of his life telling people of his innocence. 80. He was also taken again to the argument about the split trial. He confirmed that he had no say in it all. In the cells, he asked Mr Clover why, if there were to be separate trials, he could not go first, and was told the argument was over. 81. He was asked about Mr Rowson’s plea in mitigation. The transcript of 12 February 1950 shows the following: “The difficulty of Connolly became obvious from the moment that a jury had accepted, as one must assume they had accepted, the evidence of Northam, Dickson and Graham. In those circumstances, my Lord, it was obvious to anyone that there would be some difficulty in persuading a jury, as was attempted at the first trial of Connolly, to accept his evidence of an alibi. In those circumstances, my Lord, he has, on my advice and those interested in the Defence in this case, pleaded guilty to the charge of robbery.” (Mr Pownall submitted that that passage did not amount to a statement by Mr Rowson that he had advised Connolly to plead guilty and so did not confirm Connolly’s evidence that he had so advised him, and in any event did not confirm any degree of pressure.) Mr Rowson continued his mitigation by reference to those passages in the evidence of Northam, Dickson and Connolly which would permit the submission that Connolly’s role was a subsidiary one and that “he had not the slightest intention or knowledge that violence was going to be used. No doubt the fact that all that evidence was given by those three has induced the Prosecution in this case to accept the plea of not guilty”. 82. So far there was nothing in Mr Rowson’s mitigation, over and above the plea of guilty itself, to compromise Connolly’s case that he only accepted a plea of guilty to robbery under undue pressure. Towards the end of the mitigation, however, there was this passage: “To a very great extent I venture to think, my Lord, that the events with which he was mixed up were not really the outcome of his own desire in any way, and he does, through me, for what it is worth, express his very deep regret for having been mixed up in this matter. It is a regret that is not expressed here for the first time, because he expressed it to Graham in Walton Gaol when he told him that he had been a fool to be mixed up with the job.” 83. It was this passage which Mr Pownall relied on to submit that Connolly’s plea was an entirely voluntary one and that at that time he fully accepted his guilt as a participant to robbery. In his second interview Connolly was asked about this passage. Connolly answered the question rather obliquely by reference to an earlier incident in his life when he struck a doorman at a dance because he would not let him in. He pleaded guilty, and received a fine and a suspended sentence. Mr Rowson referred to this previous conviction in the course of cross-examination of the police officer who was dealing with Connolly’s record. He suggested to the officer that the assault on the doorman had happened because Connolly was drunk: to which the officer merely replied, “Possibly”. In his interview Connolly said: “…I was dance crazy you know – he said it was a bit too late you can’t come. I said I’ve paid to come in. One word led to another and I hit him…Mr Rowson brought this up, said the case of Connolly’s past of an assault to this doorman was when he was drunk and had no control over…I didn’t say…that’s what I’m trying to get over to you, the same thing as he’s saying, what you just repeated now.” 84. This is a little obscure, but we interpret it as meaning that Connolly was denying that he had instructed Mr Rowson to apologise on his behalf, just as he was denying that on the earlier occasion he had struck the doorman in drink, as distinct from frustration at being denied access to a dance he had paid to go to. 85. In the light of Connolly’s appeal Mr Maxwell-Brown was interviewed on 17 January 2003. DS Semple then wrote up a record of the interview and submitted it to Mr Maxwell-Brown for his comments. It was returned with manuscript amendments, but unsigned. In relevant part it reads as follows (the manuscript additions are italicised): “Mr Maxwell-Brown remembers being approached by the prosecution the day before the trial date regarding Connolly’s plea. He stated that he would be pleading not guilty. He told counsel about the approach that had been made but was then not involved in the subsequent talks between prosecution and defence counsel and the presiding judge. “He was aware that there was talk of a deal but that the judge was not happy initially and counsel made a second approach to the judge…Finally an agreement was reached and Mr Maxwell-Brown was informed that an alternative charge of robbery would be put on the indictment. He and defence counsel, Mr Rowson and Mr Gordon Clover , went to see Connolly and explained the situation. There was very little time, he thinks it may have been that same afternoon. “Connolly had been aware that Kelly had been found guilty of murder and was reminded of this fact by Mr Rowson and Mr Maxwell-Brown, who wished to ascertain what Connolly would plead. The situation in relation to the prosecution approach and a possible charge regarding robbery were explained to him. Connolly asked what he would get for the robbery charge and Mr Rowson informed that he would probably get ten years imprisonment. Connolly wanted to see his wife or family and Mr Rowson pointed out that it was he, not his wife, who was going to hang. He was repeatedly told that it was a decision, which he himself would have to make. “ So far as I can remember, the meeting lasted about half an hour and Connolly decided that he would plead guilty to the alternative charge…Mr Maxwell-Brown does not now remember anything specifically about a conspiracy charge , but has no doubt that it would have been mentioned at this meeting . Although Connolly was given ‘advice’, it was in the form of answers to his questions not that he was advised to plead guilty to robbery. Connolly never protested about pleading guilty to robbery. He was not shocked by the suggestion; he was paying attention and made his own decision. Having made his decision he appeared to be relieved.” 86. Mr Pownall submitted that Mr Maxwell-Brown’s recollections were inconsistent with and did not support Connolly’s account. There are some differences, in particular in respect of a concluded decision, reached by the end of the meeting, with which Connolly was comfortable, but in the main we think that it confirms rather than contradicts the earlier account and, if it is inconsistent with anything, it is with Mr Maxwell-Brown’s own letter of December 1991. Thus the meeting took place only a day or so before the day fixed for trial; a deal had already been reached with the Crown which Mr Rowson presented to Connolly at their conference; there was very little time (for a life and death decision); Mr Rowson had given firm advice, reminding Connolly of Kelly’s conviction; Connolly did want to consult his family but was reminded in graphic terms by Mr Rowson of the consequences of a wrong decision; ten years were spoken of as the sentence he would receive; and nothing was said (or could be remembered as being said) about a charge of conspiracy. 87. Mr Pownall points out that there is nothing on the transcript of Connolly’s plea of guilty which reflects his account of what happened when the conspiracy charge was put to him. But it is possible that the stenographer would not have heard Mr Rowson’s comment to Connolly; and may well merely have recorded the final answer of guilty. The point is in any event not determinative. 88. In our judgment, for all that we have considered those transcripts with circumspection, the essential lines of Connolly’s account of the meeting seem to be genuine. There was some debate before us about the extent to which it was proper for counsel to advise a defendant as to his plea: but in our view it is unrealistic to suppose that against the background of Kelly’s conviction experienced counsel would have been doing his practical duty if he did not impress his client with his view of the likely consequences of a decision in one direction or another: and especially in a case where, without previously taking instructions from the client, a deal had already been reached with the prosecution. No doubt Mr Maxwell-Brown is right to say that Connolly was also told that ultimately the decision was his: but it is difficult to suppose that he was not urged to think of his own safety. 89. We are sceptical that the rather carefully phrased passage cited above from Mr Rowson’s mitigation concerning Connolly’s regret can be relied on as confirmation of Connolly’s genuine acceptance of guilt. However, whether in the overall context of the case it can be said that Connolly suffered from undue pressure is a question we will come to below. But we are satisfied that he received advice in the strongest terms that he should accept the deal that was on the table. Mr Rowson himself told the judge that Connolly pleaded guilty “on my advice”. 90. Mr Maxwell-Brown said nothing to suggest that the availability of the deal had been discussed at some earlier time than a day or so before Connolly’s retrial. Nevertheless, Mr Waldron submitted that the circumstances in which Connolly’s retrial was split off points towards the probability that there had already been some discussion between lawyers at some level as to a possible deal; and Mr Newman had put a similar submission even more strongly. Mr Newman pointed out, correctly, that the application was for a split trial, not for an adjournment to accommodate Mr Rowson’s late entrance. The decision to split the trials is sufficiently strange to give some force to those submissions; but it still remains possible that that decision may well be sufficiently explained by the need to replace Mr Nield as Connolly’s leading counsel: there appears to have been an unspoken understanding, which emerged explicitly in the judge’s decision, that if the trials were to be split Kelly’s would go first. We are not satisfied that any discussion of a deal with respect to Connolly’s role did enter into the judge’s decision to split off and put back his retrial. Whether it entered into the Crown’s or Mr Rowson’s calculations is impossible to say. 91. In the circumstances we do not think it matters very much whether instructions were received from Connolly authorising the splitting of the retrials. He had lost Mr Nield, in whom he had, as he said in his taped interviews, reposed trust. We accept that he had yet to meet Mr Nield’s replacement, Mr Rowson. The initial decision to split the trials had been taken over his head and without his instructions, as Mr Clover’s comment at the hearing of 31 January 1950 makes clear. The reasons for Mr Rowson’s formal application on 2 February 1950 for a split trial were never articulated. In the circumstances they remain speculative. Was it to enable a new leader to master the brief? If so, then Connolly must have felt that he was left in the lurch. Was it because there was a calculation that if Kelly were acquitted, the Crown would drop its case against Connolly, whereas if Kelly were convicted, a deal could be made, as in the end it was? If so, we are satisfied on both Connolly’s and Mr Maxwell-Brown’s accounts that that was not explained to him. We are therefore inclined to accept that Connolly’s account that he was never consulted is at the very least a realistic possibility. Mr Maxwell-Brown did not say – of course he may not have been asked – that Connolly was consulted. Connolly’s statement that, after the judge had made his decision to split the trials, he asked Mr Clover if his trial could go first, is inconsistent with him being told that the need to defer his trial was due to the change in counsel. He was not told of the possibility of a deal. But even if instructions to split the trial were sought, that must have happened in a most perfunctory way, for what could he be told? In the circumstances he must simply have been prepared to follow advice, the reasoning of which remains obscure. There is something deeply unsatisfactory about the difficulty of resolving such issues after all this time, when all the leading actors are dead or unavailable for examination. What remains, however, is this: that, as a result of a ruling to split the trials which in our judgment, as well as on the Crown’s concession, should not have been made, Connolly was left shortly before his retrial with a life and death decision whether to accept a deal, negotiated without his involvement, which involved his pleading guilty to robbery. Kelly’s 1950 appeal 92. Kelly’s appeal was heard on 6 March 1950 before Lord Goddard CJ. There is no transcript available in respect of the proceedings on that day, but, in addition to grounds already lodged Miss Heilbron raised a new point, of which she had only just learned, regarding the possible disqualified status of a member of the jury. The appeal was therefore adjourned to 10 March for enquiries to be made. On that day the appeal in relation to the lodged grounds of appeal was dismissed: as stated above, one of those grounds related to the splitting of the retrials, but the others related to the summing-up. No transcript exists of the judgment, but a press report in The Echo says that Lord Goddard described the appeal as hopeless. Then, on 15 March a separate judgment was delivered, which does exist, dealing with the point about the status of the jury. The submission that the trial was a nullity was rejected. The law in relation to appeals from old convictions 93. It has been established in R v. Bentley [2001] 1 Cr App R 21 at para 4 (per Lord Bingham of Cornhill CJ) that in reviewing the safety of old convictions pursuant to references from the CCRC – “The conduct of the trial and the direction of the jury must be judged according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act .” See also R v. King [2000] 2 Cr App R 391 at 402, where Lord Bingham again stressed that this court is concerned only with the safety of the conviction. 94. In this case, however, it is not controversial that even in 1950, let alone today, the requirements of a fair trial required the disclosure of Graham’s first statement and the Northam and Dickson statements: see R v. Ward (1993) 96 Cr App R 1 at 23/25, which discusses the position at any rate 30 years ago in 1974, and particularly this passage at 25: “To return, however, to the position in 1974, Mr Mansfield submits, rightly, that paragraphs 443 and 443a of Archbold (38 th ed.) were by no means exhaustive. They were merely aspects of the defendant’s elementary common law right to a fair trial which depends on the observance by the prosecution, no less than the court, of the rules of natural justice. No authority is needed for this proposition but it is illustrated by the decision of the Divisional Court in Leyland Justices, ex p. Hawthorn [1979] Q.B. 283 . On the broad basis of this right, the defendant is plainly entitled (subject to statutory limitations on disclosure, and the possibility of public interest immunity, which we discuss below) to be supplied with police evidence of all relevant interviews with him. We would adopt the words of Lawton L.J. in Hennessey (1979) 68 Cr. App. R. 419, 426, where he said that the courts must, “keep in mind that those who prepare and conduct prosecutions owe a duty to the Courts to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence …” ” The new evidence 95. We have received and already discussed in our judgment above a body of new evidence, which includes the undisclosed statements themselves, the police reports of the 1949 investigations, the statement of Mr Santangeli, the transcripts of Connolly’s taped interviews (together with statements from the journalists who conducted them), the Maxwell-Brown material, and statements from the appellants’ families. The Crown does not oppose the reception of any of this new evidence under the provisions of section 23(1) of the Criminal Appeal Act 1968 , subject to its caution about the taped transcripts. Mr Pownall accepts Mr Santangeli as a witness of the highest integrity. Kelly’s appeal 96. We are now in a position to revert to our reasons for concluding that Kelly’s conviction is unsafe and thus for allowing his appeal. 97. The non-disclosure of Graham’s first statement, and to a lesser but cumulative extent the non-disclosure of Northam’s and Dickson’s statements, deprived Kelly and his lawyers of highly relevant material. Subject only to the fact that Miss Heilbron was plainly aware of the existence of at least some of the latter statements (and of the fact that the lending of the overcoat was not mentioned until 10 October), and thus subject to the possibility that the non-disclosures were simply part of a local culture, there is every sign that those non-disclosures, and particularly that of Graham’s statement, were due to deliberate concealment. Indeed, the lies of Graham and CI Balmer in relation to when they first saw one another in relation to the Cameo murders are a strong indication of the need for concealment. The similar lies in relation to the time when the Sunday meeting at the White Star was first revealed to CI Balmer suggest the same conclusion in respect to the statements of Northam and Dickson. Disclosure of the statements would have enabled Miss Heilbron to go further than she was able in attacking the credibility of all three principal witnesses for the Crown. 98. Did the non-disclosures make the conviction of Kelly unsafe? In our judgment, they did. The evidence against Kelly was, in Mr Pownall’s words, far from overwhelming. There was no forensic or scientific evidence to link Kelly with the murders. He was not identified at the scene. Northam and Dickson were rightly treated as accomplices. The jury were therefore cautioned against convicting without corroboration. The only corroboration they were offered apart from Graham’s evidence was the coat: it is true that the gunman was seen wearing a belted overcoat, but the only thing to connect Kelly with such a coat was Northam’s and Dickson’s evidence. Outside that evidence he was never seen in hat or coat. The essential corroboration presented to the jury was Graham’s evidence. It was with that that the judge concluded his summing-up – as well as with the point from Northam’s evidence that Kelly had said that the assistant manager was “on his knees” when he shot him again. Unwittingly, however: for that point, which must have seemed so powerful at trial, would have been revealed by disclosure of Graham’s first statement to have been more than double-edged. 99. On the prosecution’s own case, Kelly’s opportunity to commit the murders was very narrow. He was at the Spofforth Hotel as late as 9.25 pm. He was in the Leigh Arms at 9.45 pm. The shooting was at around 9.35 pm. Kelly had to obtain the hat and coat and go to the Cameo. There was a side door to the cinema at the bottom of a spiral staircase from which the gunman escaped, but that could not be opened from outside. The cut telephone wires were at the bottom of the spiral staircase. They must have been cut in advance of the shooting. The gunman had difficulty getting out of the manager’s office because the lock was shot off. He had to get rid of the gun (on the prosecution’s case, in the lake in the park), stow away the hat and coat, and return to the Leigh Arms. 100. The prosecution itself did not regard its case as strong. A minute in the DPP file dated 13 October 1949, just before the committal proceedings, says “It is not a strong case.” A letter dated 14 October to the DPP from the prosecuting solicitor says: “You will probably agree that the evidence is not very strong.” After the committal a report dated 22 October says: “A strong prima facie case has been established against both accused, but it will require to be well supported at trial”. It was supported by Graham’s second statement, but to the exclusion of his first. After Kelly’s conviction, the deputy DPP wrote (see above) that in his opinion that conviction would not have happened but for Graham’s evidence. The Crown accepts that opinion as correct. Northam’s and Dickson’s evidence suffered from the deficiencies which Miss Heilbron was able to elucidate at trial (the ambivalent letter, the failure to mention anything prior to 29 September, the failure to mention the lending of the overcoat until 10 October) but in addition the concealed failure to mention the meeting on Sunday until the committal proceedings. Thus Graham’s evidence was at the forefront of Mr Gorman’s powerful speech for the prosecution. 101. However, if Graham’s first statement had been disclosed, it is difficult to think that his evidence would have had the impact which Mr Gorman obviously believed it forensically deserved. It is not impossible that Graham would never have been called. If the statement had been disclosed between the first trial and the retrial as it should have been, all the more so in that CI Balmer in his evidence at the first trial had lied about meeting Graham for the first time in the case on 19 September (Graham had similarly lied about the date of his first meeting with CI Balmer), it is not impossible that the retrial would not have taken place. 102. In all these circumstances we consider that Kelly did not have a fair trial, his conviction is unsafe and must be quashed, and the appeal constituted by this reference must be allowed. We would merely add as a postscript, because no point was taken on it at these appeals, that the judge gave no direction to the jury as to how they should view Graham as a witness, other than that he may be regarded “as of importance” and that his evidence could corroborate that of Northam and Dickson. There was no warning of caution in that he may have been seeking an advantage for himself. In this connection, see now Benedetto v The Queen [2003] UKPC 27 , [2003] 1 WLR 1545 , in particular at paras 32/33. The law in relation to appeals from pleas of guilty 103. It follows that if the retrials had not been severed, and if both Kelly and Connolly had been convicted at their retrial, Connolly’s conviction would have been quashed for the same reasons. Does it matter that Connolly pleaded guilty to the new charges of robbery and conspiracy to rob? Mr Pownall submits that it does and that Connolly’s conviction is safely based upon his own unequivocal plea. 104. This is not because a plea of guilty in law prevents a finding on appeal that the conviction is unsafe. Mr Pownall acknowledges that that is so, and that “conviction” in section 2(1) of the Criminal Appeal Act 1968 includes a conviction upon a plea of guilty. Thus a plea of guilty is not necessarily a bar to an appeal against conviction: DPP v. Shannon [1975] AC 717 , 59 Cr App R 250 . But he submits that there was nothing in the facts to remove Connolly’s case from that of a voluntary plea. Similarly, Mr Waldron acknowledges that the existence of the death penalty at that time, being sanctioned by law, could not by itself render Connolly’s plea one obtained by duress. But he submits that it is relevant as a factor to be taken into account when attention is focussed on those matters which affected his decision and were not in accordance with law. 105. In R v. Forde [1923] KB 400 Avory J said at 403 that – “A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1.) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2.) that upon the admitted facts he could not in law have been convicted of the offence charged.” Subsequent authority has shown, however, that that is too narrow a formulation. 106. In R v. Peace [1976] Crim LR 119 it was held that an accused who pleaded guilty following and adopting the advice of his counsel, albeit unhappily and with reluctance, could not be said to have lost his power to make a voluntary and deliberate choice and thus say that his plea amounted to a nullity. An appeal could only lie where it had been entered under pressure or threats or the like in circumstances in which the defendant had no free choice but was driven to adopt a certain course whether he liked it or not. It would be a serious matter if it was accepted as a principle that where counsel gave strong advice to a client indicating the prospect of his being found guilty as an alternative to pleading guilty, it was then to be said that the plea was not really his own but something which had been forced on him. It was a question of fact in every case. 107. R v. Turner [1970] 2 QB 321 , 54 Cr App R 352 is the leading authority on plea bargaining. It held that counsel must be free to do his duty of giving the accused the best advice he can and if need be in strong terms, but will emphasise that he should not plead guilty unless he has committed the acts constituting the offence charged. 108. R v. Inns (1975) 60 Cr App R 231 is an example of a defendant adjudged not to have a free choice. There the pressure was put on him by his counsel’s report of conversations with the judge. Lawton LJ said (at 233): “When the accused is making a plea of guilty under pressure and threats, he does not make a free plea and the trial starts without there being a proper plea at all.” 109. R v. Hunt [1986] QB 125, 82 Cr App R 244 concerned the case of a plea of guilty following an erroneous ruling by a judge on a point of law, there the meaning of “controlled drug”. This court held that the judge had given a correct ruling, but on erroneous grounds. At 132, 249 Robert Goff LJ said – “Since the applicant’s plea of guilty was founded upon that ruling, we shall grant the applicant leave to appeal from his conviction.” 110. However, the appeal was dismissed because, although had the judge’s grounds been correctly formulated the accused could in theory have adduced relevant evidence on the issue of his guilt, in practice he would not have done. Therefore his conviction would have been inevitable. 111. In R v. Preston (1992) 95 Cr App R 355 this court adopted Robert Goff LJ’s test that a plea of guilty following an erroneous ruling of law must be founded on that ruling. Woolf LF (at 381) referred to Viscount Dilhorne’s dictum in Shannon at 757 and 264 that – “the respondent having pleaded guilty , [the court of appeal] had only power to quash the conviction if either there had been a wrong decision on a question of law or a material irregularity in the course of trial” and continued: “It is not any error of law or any irregularity which is sufficient for this purpose…In our judgment before an appellant who has pleaded guilty can rely upon an erroneous ruling on a point of law or a material irregularity, he must show that his plea “was founded” upon the erroneous ruling of law or material irregularity.” 112. Woolf LJ then went on to distinguish between a situation where a plea was influenced by the judge’s rulings and a situation where the defects in the rulings were critical. In that court’s opinion what was critical was a separate decision by the judge to admit certain evidence, as a result of which “Preston had no prospect of successfully contesting his guilt” ( ibid ). 113. We now come to the first of a number of recent authorities which are of particular relevance to Connolly’s appeal because they concern the effect of non-disclosure on pleas of guilty. R v. Schlesinger [1995] CLR 137 arose out of the background facts to the Scott Inquiry about arms to Iraq. In 1985 the defendants had been convicted of illegally exporting arms to Iraq. In the preparations for trial the defendants had been told that the arms they had supplied, although paid for by Iraq, were really presents for Sudan and Jordan. They were assured that they would get witnesses from the embassies of those countries in Britain to support that account, but then learned that authority for such witnesses to give that evidence had been withdrawn. What they did not know, and was only revealed as a result of the Inquiry, was that the embassies had been approached on the initiative of the Customs and the Foreign Office (in the belief that the account of the arms really being presents to Sudan and Jordan was false) to scotch any possibility of such statements. Ignorant of this non-disclosure, the defendants pleaded guilty, assisted in that decision by being told that they did not face a prison sentence in any event. It was conceded for the Crown that what had occurred was an indefensible abuse of process, but nevertheless the appeals were resisted. It was submitted for the appellants that the prosecution would have been stayed if the court had known the truth of these matters. This court agreed that was so, and that the convictions should be set aside irrespective of prejudice; but in any event on the ground of prejudice. The digest of the report states (at 139): “Whilst the Court was usually slow to set aside pleas of guilty which had been unequivocally made, where they had been made in ignorance of malpractice having operated to a defendant, different considerations might apply.” 114. The brief comment by the late Professor Sir John Smith QC reads: “The appellants had pleaded guilty but they would, apparently, not have done so if the witnesses whom they hoped to call had been available. Guilty or not, their right to have the charge against them proved beyond reasonable doubt had been, at least, impaired. It seems there was really no need to rely on the extension of the concept of abuse of process made in the Horseferry Road case. A defendant does not get a fair trial if he is precluded from calling witnesses whom he believes to be necessary to his defence.” 115. R v. Blackledge (1996) 1 Cr App R 326 was another case arising out of the arms to Iraq affair. Licence to export the arms to Jordan had been obtained, and the defence was that the authorities knew that Jordan was being used as a conduit for exports to Iraq and were turning a blind eye. The defendants sought disclosure of policy and guideline documents governing the grant of export licences, but were refused by the trial judge, whereupon, after assurances from the prosecution that they would not be presenting the case as one of the utmost gravity and indications from the judge that suspended sentences could be expected, they changed their pleas to guilty. Subsequently, ministerial documents came to light substantiating the defendants’ allegations. Their appeals were allowed. It was held that the failure to disclose was a material irregularity and that the guilty pleas had been founded on that irregularity. Lord Taylor CJ said this (at 338/339): “It is submitted that the material irregularity created by the non-disclosure deprived the appellants of material which would have enabled them to make properly informed decisions as to what course they should take…Even without that documentation, the appellants could have run their defence and given evidence in support of it. It is stressed, however, that in addition to being deprived, so to speak, of ammunition, the appellants were put into a difficult dilemma. For the offences charged, they could have been sentenced to a substantial period of imprisonment. At the time of the trial, after the second Gulf War, they had an understandable fear as to what sentence a court might consider properly reflected public disapproval of assistance to Saddam Hussein. In those circumstances, the prospect of a muted presentation of the facts by the prosecution, followed by a suspended sentence, put pressure on the defendants to go quietly…We have considered the aggregate of all the unusual circumstances of this case – the material irregularity, the judge’s ruling based on an unawareness by him and by prosecuting counsel of the undisclosed documents, and finally the pressure added to those factors by the discussions leading to the changes of plea. We consider the pleas of guilty to be “founded on” the material irregularity and the judge’s ruling coupled with the pressure to which we have referred. In the result, we cannot regard the convictions as safe and satisfactory.” 116. In R v. Togher [2001] 1 Cr App R 33 the appellants were indicted for importing drugs on two separate indictments (the “Frugal” and “Madrid” indictments). They were convicted on the first (Frugal) and pleaded guilty on the second (Madrid). Their appeal against their conviction on the first indictment was allowed and a retrial ultimately stayed on the ground that the prosecution had at the first trial by reason of non-disclosure deprived the defence of its ability to mount a challenge to the integrity of the prosecution. They then appealed against their conviction on the second indictment, but failed. The case is principally authority for the proposition that a broad approach (as per R v. Mullen [1999] 2 Cr App R 143, [2000] QB 520) should be adopted to the statutory test of safety so as to embrace not only circumstances where the conviction might be wrong but also where the appellant had been deprived of a fair trial. In applying that broad test, this court nevertheless concluded that the retrial judge had been wrong to find that there had been any abuse of process requiring the staying of the retrial. Lord Woolf CJ concluded as follows (at paras 58/59): “58…The defendants had not lost the ability “properly to defend themselves” at a retrial when they would be well aware of the failures on the part of the prosecution. The defendants could, if they were prepared to take the consequences of doing so, exploit the earlier non-disclosure to challenge the bona fides of the officers in charge of the prosecution “viewed as a single entity”. “59. The shortcomings on the part of the prosecution are not of the category of misconduct which would justify interfering with the defendants’ freely entered pleas of guilty. We see this case as being in a wholly different category from the exceptional case Lord Lowry was considering in his speech in Bennett . When the appellants pleaded guilty they were not aware of the matters relied upon before Turner J. for obtaining a stay of the retrial, but they were aware that they were appealing against their conviction. They therefore should have appreciated that the appeal against their conviction might succeed. If this had happened they would still be bound by their pleas of guilty. They were never ignorant of any evidence which went directly to their innocence of guilt. They were only unaware of material which could, but for their pleas, have been used to attack the credibility of the prosecution witnesses. Ignorance of this kind does not justify reopening their pleas of guilty. While there was an irregularity in their trial on the Frugal indictment, the appellants’ pleas to the Madrid indictment were not “founded on” and were independent of that irregularity.” 117. Both parties relied on that authority. Mr Pownall submitted that the non-disclosures in this case were similar to those in Togher and that the last four sentences just cited are directly applicable. Mr Waldron, however, submitted that the ultimate test proposed is whether the misconduct complained of “would justify interfering with the defendants’ freely entered pleas of guilty” and that in this case it clearly would. We would observe that it is clear from the facts discussed elsewhere in Lord Woolf’s judgment that the non-disclosure in question related to the authorisation of covert surveillance work which had produced 57 tape-recordings which were disclosed in the course of the Frugal retrial. The argument was that, although the new material “did not relate to any issue of fact in the trial which had taken place” (at para 35), the possibility that the surveillance was not properly authorised could lead to an attack on the integrity of the investigation in a case where the defendants alleged that they had been framed. That was the context in which Lord Woolf said that the material of which the defendants were unaware did not go directly to their guilt. 118. R v. Bhatti (CACD, 19 December 2000, unreported) contains an extensive summary and analysis of the relevant authorities. The appellant pleaded guilty to causing death by dangerous driving on the basis of a police report that the cause of the accident was the combination of the driver’s poor steering and harsh acceleration. A defence report said a component failure could not be ruled out. The car had been scrapped. The appellant was told that the police expert could not accept the opinions of the defence expert. The appellant pleaded guilty. Later the CPS informed the appellant that independent experts had reviewed the police expert’s report and found it “totally unreliable and riddled with error”. The appeal was allowed. Potter LJ said (at paras 30/33): “30. However, when the appeal is in respect of a conviction following a plea of guilty the considerations which apply are very different and the circumstances in which it may be appropriate or proper to allow an appeal are of necessity very limited. That is because the safety of the conviction depends not on some legal error or procedural irregularity which has arisen in the course of the adversarial process of the trial, thereby leading to a verdict of guilty which might otherwise have been not guilty; it rests upon the question whether, and in what circumstances the Court should look behind the plea of guilty (which represents a voluntary recognition of guilt) and enter on an examination of the reasons or motives of the defendant in deciding so to plead. That in turn requires the Court to reach a decision based not upon objective matters of record, namely the procedures adopted and decisions reached openly in the course of the trial, but on the subjective recollection and subsequent account of the appellant and/or his advisers as to the reasons for his plea. Such a procedure is an inherently unsatisfactory basis for interference with an unequivocal plea, voluntarily made at the proper time, for reasons or motives which may be infinitely various. Of course, if the defendant can establish that he pleaded guilty without understanding the nature of the charge or otherwise without intending to admit his guilt of what was alleged, the conviction may be quashed; as may also be the case if the appellant can show circumstances which effectively deprived him of a free choice as to plea: see Archbold (2001) at paragraph 7-103 and cases there cited [see now Archbold (2003) at para 7-291]. In such cases the voluntary nature of the plea is vitiated. “31. It will also sometimes be the case that an appellant can establish that, as a result of trial processes prior to his plea, such as an erroneous ruling on a point of law (see R v. Preston 95 Cr App R 355 at 381) the basis of the plea is fundamentally undermined. Similarly, where by reason of some act of deception or non-disclosure on the part of the prosecution the appellant has effectively no alternative but to plead guilty, when he would not otherwise have done so, his conviction may thereafter be set aside (see for instance R v. Schlesinger and others [1995] Crim LR 137 and R v. Blackledge and others [1998] 2 Cr App R 100 ). However, that will not be the case where, in the face of evidence bona fide presented by the prosecution, the accused has pleaded guilty on the basis of advice from counsel, however reluctantly accepted: see R v. Peace [1976] Crim LR 119. As made clear in R v. Boal (1992) 95 Cr App R 272 , although a plea of guilty does not deprive the court of jurisdiction to hear an appeal against conviction, it is highly relevant to the issue whether the conviction is unsafe that the defendant knew what he is doing, intended to plead guilty, did so without equivocation and after receipt of expert advice… “33…Thus once the defendant has pleaded guilty and been sentenced on the basis of his plea, it will only be in the rarest of cases that circumstances should be regarded as vitiating or undermining the voluntary nature of the plea to such an extent that the conviction should be regarded as unsafe. Certainly it will not in the ordinary way be sufficient to demonstrate that the evidence of a particular witness, which at the time appeared reliable, has been shown subsequently to be unreliable or untrue.” 119. In the light of these principles Potter LJ turned to the facts of the case: “35…As a result, we are satisfied that: 1. Had the Crown prior to the appellant’s plea of guilty been aware of the deficiencies of PC Desmond’s report the prosecution would not have proceeded. 2. Equally, and in any event, had the defence been aware that the report was not reliable, the appellant would not have entered a plea of guilty. 3. Had the deficiencies of the report emerged and had the Crown disclosed them at any stage prior to sentence, as we are satisfied would have been done had the truth been known, the defendant would have sought to vacate his plea of guilty. 4. The Crown would have supported the appellant in that application and, had it been successful, would have elected not to proceed. 5. If, contrary to what we are told would have happened, the Crown had proceeded, the defendant would have called his expert witness to attest to the possibility of mechanical failure in which event it is possible, and indeed probable, that the jury would have acquitted the defendant. “36. In those circumstances, we are satisfied that the assumption of both the prosecution and the defence as to the reliability of PC Desmond’s report as to the reasons for the accident and his dismissal of the suggestion of mechanical failure, and the subseq uent revelation of the worthlessness of that report and opinion fatally undermine the plea.” 120. Mr Pownall submitted that items 1-4 in the citation of para 35 above did not apply in the present case. 121. Finally, in R v. Montague-Darlington [2003] EWCA Crim 1542 (unreported, CACD 23 May 2003) the appellant had pleaded guilty to importation of 90 packages of cocaine which she had swallowed. She was advised that she had a defence of duress, but chose to plead guilty. A year later the solicitor to the Customs wrote to her solicitors to inform them of material which had only recently come to the former’s attention and to say that if it had been to hand in time he would have regarded it as disclosable but likely to attract public interest immunity. This court was satisfied that the material was disclosable but that rather than disclose it the prosecution would not have been commenced or proceeded with. Kennedy LJ said: “7. This court will only rarely entertain an appeal against conviction where there has been a plea of guilty, but the circumstances in which an appeal may be successful are not confined to those identified by Avory J in Forde [1923] 2 KB 400 , as is clear from the recent judgment in Togher [2001] 1 Cr App R 457 . The court has to consider whether the appellant had a fair trial. It is difficult to see how the appellant can be said to have had a fair trial when it is now the case for the prosecution that she should not have been tried at all. Furthermore if, when advising in relation to plea, her legal advisers had access to all of the relevant material it is clear that she would have been strongly advised not to plead guilty, and there is no reason to think that she would have refused to accept that advice.” Connolly’s appeal: discussion and conclusion 122. In the light of these authorities Mr Pownall submitted that Connolly’s plea was voluntary, not born of undue pressure, and not founded on any material irregularity or error of law, and that his convictions therefore remain safe. In particular, he submitted that the severance of Connolly’s trial was authorised by him; that Mr Maxwell-Brown’s evidence demonstrates that the plea was voluntary; that Graham was not the only witness in the case; that even if Graham’s statement had been disclosed, there would probably have been a trial in any event, just as the committal was achieved without Graham’s evidence; that there was independent support for Northam’s and Dickson’s accounts in the facts that Connolly handed in his notice on 23 March 1949, applied for a free passage to Australia on 31 March 1949, and had lied to the police by saying that he had been at work on the day of the murders; whereas his alibi that he had been at a dance with his wife was capable of being subject to detailed attack. 123. However, we have already rejected a finding that Connolly was consulted about the severance of his trial: we consider that, to put it at its lowest, there was a realistic possibility that he was not. As for Mr Rowson’s consultation with Connolly shortly before his trial, we have already found that Connolly’s account is to be broadly accepted, and that in its essence it is supported by Mr Maxwell-Brown’s evidence: indeed, given Mr Maxwell-Brown’s earlier letter of December 1991, we consider that if there is any difference between the accounts we would prefer Connolly’s. We regard his account of the consultation as having the ring of truth. We think that Mr Rowson went to the very limit of what his duty allowed in giving strong, realistic and practical, indeed life and death, advice: we doubt that any leader placed as he was would have acted differently, but it must have amounted to enormous, indeed irresistible, pressure to take the course which would preserve life rather than gamble it. We agree that there was nothing illegitimate in such advice in itself, and that the mere existence of capital punishment was part of the fabric of the then law and could not in itself constitute unlawful or undue pressure. However, that penalty, the availability of the deal, and the advice tendered by Connolly’s lawyers (for we feel sure that no one at that consultation disagreed with Mr Rowson’s advice) did not stand alone. The police had failed to provide even for prosecuting counsel, let alone for the defence, to have the statements of the three leading witnesses in the case. Even if the non-disclosure of Northam’s and Dickson’s statements may not have been enough by themselves to have rendered Kelly’s conviction unsafe, a question we have not had to determine, it added materially to the vice of the non-disclosure of Graham’s first statement, a matter which the Crown acknowledges by itself requires the quashing of Kelly’s conviction. We consider that those non-disclosures meant that Kelly did not have a fair trial, and the severance of the retrials in the event compounded that unfairness. It was Kelly’s conviction on a capital charge in an unfair trial that was the critical background to the advice tendered by Mr Rowson – who was of course ignorant of the non-disclosures – and to the deal negotiated with the prosecution which he held out to Connolly. 124. We do not think it wrong in these circumstances to say that Connolly’s decision to plead guilty was founded on an unsafe conviction in an unfair trial. Both parties to the plea bargain negotiated on behalf of Connolly, and indeed the judge who had to approve that bargain, were acting on the basis that Kelly had been properly convicted in a fair trial. Although Kelly had his appeal, it is plain that, as matters were then known, that appeal was given no weight in the scale. It seems to us that the cases which are closest to the present are Schlesinger and Blackledge and, in a slightly different way, Bhatti . Those cases indicate that the concept of a plea of guilty being founded on an irregularity goes wider than the paradigm case of a plea which turns entirely on, say, a decision of law as to the width of a statute imposing criminal liability. The passage cited above from Blackledge in particular illustrates how, in a far less serious context, the dilemma faced by a defendant may be part of a combination of circumstances which effectively undermines or vitiates the essential condition of a plea being voluntary. 125. As for Togher, we consider that the circumstances there were very different. The Madrid indictment (concerning 33 kilos of cocaine seized by the Spanish at a hotel in Spain) related to a different consignment of drugs from that involved in the Frugal indictment (which concerned 309 kilos of cocaine seized in Sussex where the drugs had been brought on a boat called the Frugal ). The non-disclosure did not even relate to any issue of fact in the Frugal indictment, let alone the Madrid indictment. The submission was merely that the new material, if known about in time, might have enabled the defendants to develop a collateral attack on the credibility of the investigation and, so it was merely assumed (at para 7), would have led the defendants to defend the Madrid indictment. There was no submission, as far as we can see, that the pleas were other than freely entered. That is why Lord Woolf began his concluding reasoning at para 59 with the premise that the defendants had freely chosen to enter pleas of guilty, when he said: “The shortcomings on the part of the prosecution are not of the category of misconduct which would justify interfering with the defendants’ freely entered pleas of guilty”. He had previously described those shortcomings as “regrettable muddle and confusion and incompetence” (at para 58). In those circumstances it is not surprising that the defendants’ submission that the non-disclosure by itself somehow unlocked their voluntary acceptance of guilt failed. In the present case, however, the non-disclosure, in the case of Graham, went to the credibility of critical corroborative testimony which spoke directly of the defendants’ own confessions, and, in the cases of Northam and Dickson, went to the credibility of the main prosecution witnesses whose testimony again spoke directly of the defendants’ prior planning and subsequent confessions; and all in circumstances, unlikely to be repeated, where one defendant was forced by an unsupportable decision to sever the retrials to choose, following the conviction of the man he denied being his accomplice in guilt, between his desire to plead his innocence and his desire to save his life. 126. The test of a plea of guilty being “founded on” some material irregularity or error of law expresses a strong and determinative causal connection. The critical and fundamental causative part which the trial of Kelly played in the decision of Connolly can be illustrated by the consideration that if the retrial had not been wrongly severed, Connolly would have been tried with Kelly, and either suffered his fate, or acquitted on the basis on which the Crown were ultimately prepared to accept a plea of not guilty to murder. The critical part which Graham’s evidence played in the trial of Kelly is demonstrated by the fact that if his first statement had been disclosed, it is entirely possible that he would never have been called, or if called discredited: in circumstances where the view expressed after the event was that his was the evidence without which Kelly’s conviction would not have been secured. And if the disclosure had taken place between the first joint trial and Kelly’s retrial, then in the light of the lies told at the first trial, it is possible that there may have been no second trial at all. Moreover, if immediately after Kelly’s retrial the non-disclosures (and lies) had come to light and been understood as they have now been understood, then the Crown would then have been acknowledging that Kelly’s conviction could not survive and it is highly unlikely that Connolly would have been advised in the way in which he was advised, or that he would have changed his plea to one of guilty (see Bhatti ). 127. Ultimately, however, the test is of the safety of the conviction. For the reasons expressed in Bhatti the scope for finding that an unequivocal and intentional plea of guilty can lead to an unsafe conviction must be exceptional and rare. However, undue pressure or errors of law or unfairness in the trial process may all be of such an important causative impact on the decision to plead guilty that the conviction which follows on such a plea can, in an appropriate case, be described as unsafe. In our judgment such is this case. Ultimately, as the authorities emphasise, it is a question of fact in each case. 128. In the circumstances the factors raised by Mr Pownall in his final submission as supporting the safety of Connolly’s conviction are really neither here nor there. They did not lead to a conviction at his first trial and were not tested in a retrial. If Kelly, the alleged gunman and thus primary party cannot be regarded as safely convicted, it is unrealistic to regard Connolly, an allegedly merely secondary party, as safely convicted once the basis for upholding his conviction on his own plea is fatally undermined. In certain respects, for instance the irrelevance in the case of Connolly of Northam’s and Dickson’s evidence about the coat and the absence of any evidence against Connolly of knowledge that the assistant manager had been shot while on his knees, the evidence against Connolly was weaker than that against Kelly. In any event, the matters raised by Mr Pownall are controversial. Thus, as to working on the Saturday: he had not worked on the Saturday, but he had on the Friday, and at the first trial Oliver J had said (The Echo report of the summing-up): “That was on May 14 and the murder was 8 weeks before. The jury might think quite possibly that the man be honestly mistaken, when he said he was at work at Bibbys because he was in fact at work there up to March the 18 th …” 129. Similarly, as for planning to go to Australia, at the first trial evidence was given by Revd Thomas Frayne that Connolly had consulted him about leaving for Australia already in about May 1948. As for his alibi, Connolly’s wife said that they had been out dancing together on Saturday 19 March: she was attacked in cross-examination on the basis that she had muddled the date and that she was thinking of some other Saturday: but she was able to prove that she had the date right by reference to a letter post-marked 18 March. In the end, the dispute about the alibi was as to whether Connolly was seen at the dance before or only after 10 pm: witnesses were called by prosecution and defence respectively on either sides of that issue. When it was tried, at the first trial, Connolly was not convicted. Conclusion 130. For these reasons we considered that both convictions were unsafe, and we therefore allowed the appeals in the references concerning both Kelly and Connelly and quashed their convictions. As we intimated at the time of the hearing of these appeals, in the light of our decisions the Cameo murders remain an unsolved crime. If these appeals had happened timeously, fresh trials might have been held, if the Crown would have proceeded with them in the light of the new material, and these matters could have been subjected to the scrutiny of a new jury. As it is, that cannot happen. However, having considered that there was in these cases a breakdown in the due administration of justice and a failure to ensure a fair trial, we consider that the consequence was a miscarriage of justice, which must be deeply regretted.
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{"ConvCourtName": ["Liverpool Assizes"], "ConvictPleaDate": ["1950-02-13", "1900-02-08"], "ConvictOffence": ["new charges of robbery and conspiracy to rob.", "murder"], "AcquitOffence": ["murder"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["data not available"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Liverpool Assizes"], "Sentence": ["sentenced to death."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Yes-drinking"], "OffVicRelation": ["Don't know"], "VictimType": ["Individuals"], "VicNum": ["2 of 2", "1 of 2"], "VicSex": ["data not available"], "VicAgeOffence": ["44"], "VicJobOffence": ["Employed"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["evidence of the witnesses", "police statements implicating them", "prison confessions", "Medical/ forensic", "Witnesses"], "DefEvidTypeTrial": ["Defence witness", "anonymous letter was in evidence", "Offender claims to have alibi"], "PreSentReport": ["Don't know"], "AggFactSent": ["planning"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender", "Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["conviction"], "AppealGround": ["body of new evidence", "retrial was severed", "statement was not disclosed"], "SentGuideWhich": ["section 23(1) of the Criminal Appeal Act 1968,"], "AppealOutcome": ["allowing the appeals of both Kelly and Connolly and quashing their convictions.", "quashed their convictions."], "ReasonQuashConv": ["failure to ensure a fair trial"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
350
Neutral Citation Number: [2019] EWCA Crim 1151 Case Numbers: 201801837/01838/018392019/00677/B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WINCHESTER CROWN COURT Mr Justice Langstaff T20177121 Royal Courts of Justice Strand, London, WC2A 2LL Date: Thursday 27 June 2019 Before: LORD JUSTICE LEGGATT MR JUSTICE NICOL and MR JUSTICE BUTCHER - - - - - - - - - - - - - - - - - - - - - Between: REGINA Respondent - and - (1) JORDAN RAY SMITH Appellants (2) RICARDO LIVINGSTONE-WRIGHT (3) JORDAN PERRY (4) SARA HODGKINSON - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Greg Unwin appeared on behalf of the Appellant Smith Mr Michael Mansfield QC appeared on behalf of the Appellant Livingstone-Wright Mr Michael Borrelli QC appeared on behalf of the Appellant Perry Mr Hugh French appeared on behalf of the Applicant Hodgkinson Mr Adam Feest QC appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Leggatt: 1. On 4 April 2018 in Winchester Crown Court, following a trial before Langstaff J and a jury, the three appellants, Jordan Smith, Ricardo Livingstone-Wright and Jordan Perry, were convicted of attempted murder. Their co-defendant, Sara Hodgkinson, was convicted of encouraging or assisting the commission of an offence contrary to section 45 of the Serious Crime Act 2007 . They were sentenced as follows: Smith was sentenced to 31 years’ imprisonment; Livingstone-Wright and Perry were each sentenced to 30 years’ imprisonment; and Hodgkinson was sentenced to 4 years’ imprisonment. 2. Smith, Livingstone-Wright and Perry appeal against their convictions. Hodgkinson has applied for leave to appeal. Her application is contingent on the success of the appeals. It is common ground that, if the three appellants succeed on their appeals and their convictions are quashed, Hodgkinson must also be entitled successfully to appeal against her conviction because there would in that event be no offence proved which she could be said to have encouraged or assisted. If, on the other hand, the appeals of the three appellants fail (and the reality is that their appeals stand or fall together) it is accepted on behalf of Hodgkinson that there is no other ground on which she can pursue an appeal against her conviction The background 3. The person whom the appellants were accused of attempting to murder was a man called Jay Sibley. In February 2017 Sibley was staying with his girlfriend Natasha Chamberlain at the flat of his friend Richard Stanhope at 81 Athena Avenue, Waterlooville in Hampshire. At about 12.45am, in the early hours of 13 February, Sibley and Stanhope left the flats to supply some drugs to Hodgkinson. No sooner had they stepped outside the communal entrance to the flats than two men ran out from behind some bushes. One of them shot Sibley in the face with a sawn-off shotgun. The attackers immediately ran off and Hodgkinson also left the scene. 4. The prosecution case was that the attack was carried out by the appellants, who ran a rival drug dealing network, in revenge for an incident that occurred earlier that evening. Only a short distance away from Athena Avenue is a house at 2 Tor Close, which the appellants were using as a base for their drug dealing operations. The house belonged to a man called Steve Antrim (known as ‘Mince’). Also living there were a woman called Marie Moore, and a young man known as ‘Ox’ who worked for the appellants. Marie Moore gave evidence that on the evening of 12 February three men forced their way into the house and stole drugs and money belonging to the appellants’ drug dealing network. Marie Moore said she recognised one of the men as a runner for a rival drugs network known as the ‘Adam and Sticky’ network. It seems that the Adam and Sticky network had previously been operating out of 2 Tor Close, before Mince kicked them out and agreed instead to host the appellants’ network at his property. 5. Marie Moore gave evidence – and this is the subject of one of the grounds of appeal – that Mince had told her that, after he kicked them out, the Adam and Sticky network had relocated to Stanhope’s address and also that he had seen Sibley selling drugs for that network in a nearby alleyway. In fact, according to the prosecution, that information was incorrect in so far as Stanhope and Sibley were actually working for a different drugs network again, referred to as the ‘Aaron and Tony’ network. 6. Immediately after the robbery at 2 Tor Close, at about 9pm, Marie Moore and Ox made telephone calls to the appellant Smith and told him what had happened. Smith contacted the other two appellants, who were in different parts of South West London. By 11pm they had all met up, and at around 11.30pm they set off in two cars and drove down the A3 to the Portsmouth area. They were heading for Waterlooville. 7. CCTV footage from a camera at South Downs College (which is very near to Athena Avenue and also to Tor Close) showed what the prosecution asserted were the appellants’ two cars passing the camera at 00:38 and 00:43. The second car was shown passing the camera again, travelling in the opposite direction, almost exactly five minutes later at 00:48, followed within 40 seconds by the other car. Also at 00:48 Stanhope made a 999 call, which must have been made almost immediately after the shooting. 8. Apart from this extraordinary coincidence of timing, the prosecution relied on the involvement of Hodgkinson whose role on their case was to lure Sibley out of the flats. The prosecution adduced evidence of previous association between Hodgkinson and Livingstone-Wright and Smith, and of communications between them shortly before the shooting. 9. At 22:37 on the evening of 12 February Smith texted Hodgkinson’s number to Perry, who was with Livingstone-Wright at the time. Shortly afterwards, Livingstone-Wright called Hodgkinson. Shortly after that, Hodgkinson made arrangements with the owner of the house she was living in for him to take her in his van to a cash machine to get money out, as her benefit money was due at midnight, and then to buy some drugs. 10. At 23:56 there was another short call from Livingstone-Wright to Hodgkinson. At 00:10 Hodgkinson withdrew £100 from her account. At 00:19 she called the Aaron and Tony drugs line. Within two minutes there was a call from that line to Stanhope. There were further short calls from Livingstone-Wright to Hodgkinson at 00:25 and 00:39. At 00:43 there was another call from Hodgkinson to the Aaron and Tony line, followed by a call from that line to Stanhope. Those last phone calls immediately preceded the shooting. 11. An allied feature of the evidence on which the prosecution also relied was that, in these communications, Hodgkinson arranged to meet Stanhope and Sibley twice. Stanhope and Sibley gave evidence that, as a result of her first request for drugs, she met them on the opposite side of the green from Athena Avenue and bought a few wraps of cocaine. She told them that she wanted to buy some more wraps but needed first to get some more money. She said this despite the fact that (unknown to them) she had already taken the necessary funds out of the cash machine. She told a different story to the man who had given her a lift in his van. According to his evidence she said to him that the dealer had only given her half the drugs and that she had to go back for the rest when he had sorted them out. On the prosecution case Hodgkinson was, on this evidence, playing for time until the appellants arrived and was setting things up to lure Stanhope and Sibley out of the flats again as soon as the appellants had arrived, which explains why she made the second call to the drug dealing line at 00:43. 12. Two of the appellants, Smith and Livingstone-Wright, gave evidence at the trial. Their case was that they had indeed travelled to Waterlooville after the robbery at 2 Tor Close, but the purpose of their trip was to collect money, deliver more drugs and move their operation to a new location now that it had been compromised. 13. An unusual feature of this case, which lies at the heart of these appeals, is that evidence was given by the victim of the shooting (Sibley) and his friend (Stanhope), who were called as witnesses by the prosecution, on which the defence strongly relied. Each of these witnesses gave evidence that he recognised someone who took part in the attack, and in each case the person identified was not one of the appellants. The person identified by Sibley was a man called Barry Baker and the person identified by Stanhope was a man called Chrissy Fagan. Furthermore, Baker and Fagan are both white in skin colour, whereas the appellants are black. The appellants relied on this evidence as positively showing that they did not carry out the shooting. 14. At the end of their case the prosecution adduced evidence of enquiries they had made into mobile telephone activity and CCTV footage with the aim of trying to establish whether Baker or Fagan could have participated in the shooting. There was a CCTV camera outside the front entrance of Fagan’s flat, and this showed him entering the flat well before the shooting. He was arrested at his flat after the shooting occurred later that night and when he answered door to the police he was wearing the same clothes as he was seen to be wearing when he had entered the flat earlier in the evening. The CCTV footage also confirmed that he had not left the flat through the front door in between those sightings. He could have got out at the back down a ladder, but there was further evidence that on any of the three main routes he might have taken to get to Athena Avenue there were CCTV cameras and he did not appear on any of the relevant CCTV footage. 15. Baker lived much closer to Athena Avenue. There was no CCTV camera directly outside his home and the prosecution accepted that it would have been perfectly possible for him to get to Athena Avenue without being recorded on CCTV. 16. The mobile phone evidence was relied on by the prosecution for the absence of any communication between Baker or Fagan and any other relevant person during the relevant period: in particular there was no evidence of any communication between either of them and Hodgkinson. 17. The defence made an application under section 78 of the Police and Criminal Evidence Act 1984 to exclude this evidence, but the judge rejected the application and allowed the evidence to be adduced. Ground 1: the handling of the identification evidence 18. The first ground of appeal is that the trial was unfair because of the way in which the evidence relating to the identification by Sibley and Stanhope of the people who carried out the attack was dealt with. Leading counsel for Livingstone-Wright, Mr Mansfield QC, whose strongly argued submissions have been adopted by the other appellants, makes two principal criticisms: one relating to the exercise of discretion by the prosecution and the other relating to the exercise of discretion by the judge. 19. First and foremost he has submitted that the prosecution ought to have challenged the identifications made by their witnesses Sibley and Stanhope when they gave evidence and tested the accuracy of their evidence on what was the core issue in the case. The prosecution could and should have done this, he submitted, without cross-examining the witnesses and asking them leading questions which the prosecution was not entitled to do, but by nevertheless giving them the opportunity to confirm or qualify their evidence when asked to consider possible reasons why they might have been mistaken in their identifications. The failure to do this, he submitted, was unfair, both to the witnesses, who were not given an opportunity to deal with criticisms made by the prosecution of the reliability of their evidence, and to the defence, who were put in the invidious position of not knowing what the witnesses would say if their evidence was probed in this way and who for proper and understandable reasons took the decision not to ask such questions themselves. The jury, he argued, was therefore deprived of the opportunity to see the identification evidence tested in the way that it ought to have been in the interests of justice and which might have strengthened the defence case. 20. Mr Borrelli QC on behalf of Mr Perry, whilst adopting these submissions, also advanced an alternative argument. He submitted that the prosecution could have approached the matter by probing the reliability of the identifications made by Sibley and Stanhope before the trial in an additional interview, of which a transcript or recording could then have been made available to the defence. This would have enabled the defence to take an informed decision about whether they wished to ask any further questions. 21. Mr Borrelli relied in this regard on a passage in the guidelines published by the Ministry of Justice for “Achieving Best Evidence in Criminal Proceedings” in relation to interviewing victims and witnesses, where at paragraph 2.163 it is said: “Whatever the reason for the significant evidential inconsistency, occasions may arise where it is necessary to ask the witness to explain it.” Principles are then set out which should be taken into account in deciding what course to follow. These include guidance that: “● Explanations for evidential inconsistencies should only be sought where the inconsistency is a significant one; ● Such explanations should only be sought after careful consideration has concluded that there is no obvious explanation for them; ● Explanations for evidential inconsistencies should only be sought after the witness’s account has been fully explored, either at the end of the interview or in a further interview, as appropriate; ● Interviewers should always be aware that the purpose of asking a witness to explain an evidential inconsistency is to pursue the truth in respect of the matter under investigation; it is not to put pressure on a witness to alter their account;…” 22. Mr Borrelli submitted that, applying those principles, the prosecution ought to have formed the view that it was necessary to ask these witnesses to give explanations, if they could, for inconsistencies between their evidence and the prosecution case, which asserted that their evidence was mistaken. 23. The second exercise of discretion challenged by the appellants is the judge’s exercise of discretion in rejecting the application to exclude the evidence relating to the whereabouts and possible involvement of Baker and Fagan. Mr Mansfield submitted that, in allowing this evidence to be adduced, the judge permitted the prosecution to undermine their own witnesses and to do so in circumstances where the reasons for suggesting that their evidence was unreliable had not been put to them or explored with them. That, he submitted, compounded the unfairness. That unfairness, Mr Mansfield further argued, was in addition compounded by observations that the judge made about the evidence of these witnesses in summing up and, in particular, by directions that he gave to the jury about the need for caution in considering evidence of identification. Such directions, Mr Mansfield submitted, are appropriate where identification of a defendant is in issue in order to protect the interests of the defence, but they are not appropriate in a case such as this, where it is the prosecution witness whose identification is relied on by the defence but which it is suggested may be mistaken. The applicable principles 24. Before addressing these arguments, we think it important first of all to be clear about the legal principles which govern the situation in which the prosecution form the view that part of the evidence of a witness whom they intend to call is reliable but that part of the witness’s evidence is not reliable or even untruthful. A submission was made at the trial and was repeated certainly in Smith’s grounds of appeal, although it has not been developed in the oral argument this morning, that for the prosecution to adduce evidence which contradicts evidence given by their own witness without seeking to treat the witness as hostile is contrary to section 3 of the Criminal Procedure Act 1865 . Section 3 of that Act , which is still in force, provides: “A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but he may, in case the witness shall in the opinion of the judge prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.” 25. It is clearly established that the term “adverse” in this provision means “hostile”. The section could be read as indicating that it is only when a witness has been designated by the judge as hostile that the party who has called the witness may be allowed to adduce other evidence to contradict evidence which the witness has given. However, very soon after this statutory provision (originally contained in the Common Law Procedure Act 1854) was enacted it was held in Greenough v Eccles (1859) 5 CB (NS) 786 – an authority which has never since been doubted – that this is not the effect of the section. In rejecting such an interpretation, Williams J said (at 803) that: “it is impossible to suppose the legislature could have really intended to impose any fetter whatever on the right of a party to contradict his own witness by other evidence relevant to the issue,-- a right not only fully established by authority, but founded on the plainest good sense.” He concluded (at 804) that the preferable interpretation of the section was that: “... in case the witness shall, in the opinion of the judge, prove ‘hostile’, the party producing him may not only contradict him by other witnesses, as he might heretofore have done, and may still do, if the witness is unfavourable, but may also, by leave of the judge, prove that he has made inconsistent statements.” Willes J and Lord Cockburn CJ agreed – Lord Cockburn suggesting that the better course was to consider the second branch of the section, by which he meant the part which allows the witness to be contradicted by other evidence, as “altogether superfluous and useless”. 26. Much more recently, in R v Cairns [2002] EWCA Crim 2838 ; [2003] 1 WLR 796 , this court confirmed that the prosecution may properly call a witness and rely on only part of the evidence given by the witness while at the same time calling other evidence to contradict such part of the evidence given by the witness as the prosecution does not rely on. Keene LJ, who gave the judgment of the court, said at para 36: “We know of no principle of law or justice which requires the prosecution to regard the whole of a witness’s evidence to be reliable before he can be called as a prosecution witness. If it is open to the prosecutor to form the view that part of a witness’s evidence is capable of belief, even though the prosecutor does not rely on another part of his evidence, then the prosecutor is entitled to exercise its discretion so as to call that witness. That must be so, since part of the witness’s evidence could be of assistance to the jury in performing its tasks, and it would therefore be contrary to the interests of justice to deprive them of that assistance.” 27. That case was in some ways a stronger case than this, since the position of the prosecution in the Cairns’ case was not, as it is here, that part of the evidence given by a witness whom they proposed to call was honestly mistaken: their case was that the evidence was deliberately false and given with the aim of seeking to exculpate one of the defendants who was the witness’s wife. 28. The relevant principles can, we think, be summarised as follows: (1) Subject to the overall control of the court, the prosecution has a discretion as to what witnesses to call at a trial, but that discretion must be exercised in accordance with the interests of justice and the general duty of the prosecution to put all evidence which it considers relevant and capable of belief before the jury. (2) It is open to the prosecution - and indeed the interests of justice may require it - to call a witness to give evidence only part of which the prosecution considers to be worthy of belief. (3) In such circumstances the prosecution is in principle entitled to adduce other evidence to contradict that part of the witness’s evidence which the prosecution considers to be inaccurate or false, and to invite the jury to reject that part of the witness’s evidence. (4) That may be done without applying to treat the witness as hostile. However, unless the witness is declared hostile, evidence adduced to contradict the witness may not include a previous inconsistent statement of that witness, nor is the prosecution, as the party calling the witness, entitled to cross-examine the witness. The circumstances of this case 29. In the way that the appeals have been argued this morning, we do not understand those principles to be disputed. But in our view they provide a complete answer to the criticism made of the judge’s exercise of discretion in allowing the prosecution to adduce evidence which contradicted the identification evidence given by their witnesses in circumstances where the prosecution case was that those identifications were mistaken. There is no principle of law which was contravened by that approach. 30. The other criticism made – which we take to be the central criticism – concerning the prosecution decision not to probe the evidence of Sibley and Stanhope and not to explore with them, whether before the trial or at the trial, reasons why their identifications might be mistaken requires to be examined more closely. It is important to focus on what exactly the prosecution case was in relation to the evidence of identification. 31. The prosecution did not dispute the honesty of the identification evidence given by those witnesses. Nor did it dispute that the degree of confidence and certainty with which the witnesses believed their identifications to be accurate was as they had described in interview. In those circumstances there was no point in asking questions of them such as “Are you sure?”, because Sibley in particular had already made it clear that he was 100%, if not “110%”, sure of the accuracy of his identification of Baker and the prosecution did not seek to dispute or challenge the position that this was indeed his subjective conviction. The prosecution view, and their case, was that there were nevertheless objective reasons for concluding that the witnesses were mistaken, albeit entirely honestly mistaken. 32. Those reasons were of two kinds. In the first place, it is the experience of the legal system and has long been recognised as a result of numerous cases of mistaken identification, including cases in which evidence was given with the utmost conviction, that there are dangers of relying on identification evidence. They are reflected in the well-known guidelines laid down by the Court of Appeal in Turnbull [1977] QB 224 in response to widespread concern at that time aroused by cases of mistaken identification. These guidelines reflect the experience of the courts that mistaken identifications all too frequently occur; that mistakes may be made even when the witness believes that he recognised someone he knew; and that the degree of confidence felt by a witness that he has correctly identified someone is not a reliable indicator of the accuracy of the identification. The Turnbull guidelines also highlight the importance of carefully examining the circumstances in which the identification was made, including such matters as the length of time for which the witness had the person under observation, the distance, the light, how good a view the witness had and so forth. 33. In the present case the circumstances in which the identifications were made raised, very obviously, the potential for error. It is apparent that Sibley and Stanhope had only a fleeting glimpse of their assailants (and Stanhope was unclear whether there was more than one) under very poor conditions. It was dark. Scarcely had they come out of the door of the flats when the man who shot Sibley emerged from some bushes and ran towards them. According to Sibley, this man had a scarf around his face and he could only see the man’s eyes. The man who Sibley identified was not in fact the man who shot him. But he said that he recognised a second man who was behind the shooter and that that man was Barry Baker - someone he had met on a number of occasions and who had a reputation for robbing drug dealers. Sibley (as mentioned) expressed complete confidence in that identification, saying that he was absolutely certain of it. It is worth, however, reading an answer that he gave in one of the police interviews when he was asked the neutral question “What can you see on that night?” Sibley replied: “I didn’t really see it, that’s what I’m saying, I didn’t really see him. He was behind matey, so I didn’t ... I see him as he was coming out the bushes. And I’ve clocked matey and I thought, who’s that? Then him and I thought, oh Barry, and then that was it, he was behind matey. They was walking towards me, both of them, but Barry was behind him so I didn’t even see him, didn’t even see him.” He was then asked: “So if you had to put your finger on one thing that said why you know it’s Barry, what would that be?” To which Sibley replied: “Cause I see him as they come out the bushes. As he come out ... he was the first one that [I] clocked because I noticed him. And I know it was him without a shadow of a doubt ... The man who shot me, he came out the bushes first. Barry was behind him, and at the angle they was in I could see him from there.” The interviewer then went on to explore with him how he recognised Barry and other matters of that sort. 34. The identification evidence of the prosecution witnesses as it stood was very favourable to the defence. The defence could rely on the expressions of certainty to which I have referred. If the prosecution had adopted the course of probing the reliability of the evidence by drawing attention to its potential weaknesses and inviting the witnesses to comment on those, they might certainly have succeeded in undermining it. But we do not see how the failure to do this can reasonably be said to have prejudiced the defence. Nor do we think the prosecution can reasonably be criticised for not following that course in circumstances where, if they had succeeded in undermining the evidence of their own witnesses, they would undoubtedly have been open to criticism by the defence. 35. Furthermore, if the defence wished to probe the evidence themselves, they had the opportunity to question the witnesses when they gave evidence and to ask what further questions they thought fit. The fact that the defence took the decision, for the most part, to stick with what they had already does not demonstrate any unfairness: it is the kind of tactical decision that arises day in and day out in the criminal courts. 36. To illustrate the delicacy of such a decision, we mention a passage from the cross-examination of Stanhope by Mr Hossain QC, trial counsel for Smith, to which Mr Feest drew our attention this morning. Mr Hossain did ask some questions of Stanhope and, in particular, asked him about the skin colour of the man he identified as Chrissy Fagan. He asked the question, “Why white?”, to which the answer given was: “Well, I thought he was someone but I was high on drugs and that. He wasn’t wearing gloves. I can’t remember seeing his hair.” It might be thought that this evidence did not advance the defence case. 37. We see no unfairness in the situation where the defence had the choice whether to rest on the favourable evidence that they already had or to seek, if they could, to elicit through cross-examination evidence that was even more helpful to their case. 38. Nor, in our view, was there any unfairness to the witnesses themselves. To say, as the prosecution in effect did, ‘We do not doubt at all your honesty and veracity and the confidence with which you have made your identifications, but we contend that objectively there are reasons why we submit that you must have been mistaken’ – and to adopt that position without probing or challenging the evidence given by the witnesses – is not, in our view, unfair in any way to them. It does not cast any aspersion on their character. Nor can we see what they could reasonably have said in answer to such points as might have been put to them which they had not said already. To suggest to a witness that you might, even though you honestly believe that you have identified a particular person, be mistaken for various objective reasons is not something on which the witness can do more than express an opinion of doubtful admissibility. 39. We would add that it was clearly appropriate for the judge to direct the jury about the need for caution in approaching the evidence of identification, and the reason for it, and to invite the jury to consider carefully the circumstances in which the identifications were made. The potential dangers of identification evidence and consequent need for care are matters which may not be known to jurors in the way that they are well known to those with experience of criminal justice. Nor do they depend on which party at the trial is relying on such evidence. In this case the judge gave proper assistance to the jury in how to approach the identification evidence, whilst rightly emphasising that the burden was on the prosecution to make the jury sure that the identifications were mistaken. 40. In sum, it seems to us that the way in which the identification evidence was presented at the trial was as fair and as favourable as it could have been to these appellants. There is, in our view, in these circumstances no legitimate basis for the first ground of appeal. Ground 2: evidence of Marie Moore 41. The second ground of appeal relates to a different part of the prosecution evidence. The appellants contend that the judge was wrong to allow the prosecution to adduce the evidence given by Marie Moore of the conversation she said she had had with Steve Antrim (known as ‘Mince’), the owner of 2 Tor Place. That evidence, to recap, was that when he had kicked out the Adam and Sticky drug dealing network they had moved to Stanhope’s address, and also that he had seen Sibley supplying drugs for the Adam and Sticky network in a nearby alleyway. The obvious relevance of that evidence was that it provided a potential explanation for why Sibley and Stanhope had been attacked even though they were not in fact working for the Adam and Sticky network, who were believed to be responsible for the robbery that evening at 2 Tor Place. The fact that Marie Moore believed that Sibley and Stanhope were working for the Adam and Sticky network as a result of what Mince had told her, and that Mince had evidently believed that, was capable of supporting an inference that the appellants were also told this in the communications which took place after the robbery – although Marie Moore said that she could not remember communicating this information to them. At the very least, the evidence provided an answer to the argument which it was otherwise open to the appellants to make that the appellants had no possible motive for attacking Sibley or Stanhope because they were not working for the Adam and Sticky network but for the Aaron and Tony network. 42. This evidence of Marie Moore was not hearsay evidence because the prosecution were not seeking to rely on her conversation with Mince as evidence of the truth of what was said but only for the fact of what was said. 43. It is argued that because Mince was not called as a witness there was prejudice to the defence as they could not test the evidence of Marie Moore against the evidence of the person who was alleged actually to have made the statement. However, as was specifically accepted by Mr Hossain in his written grounds of appeal, Mr Antrim was not likely to be a very reliable witness. In any case, in circumstances where the truth of what he allegedly said was not in issue but only the factual question of whether or not he said it, fairness was achieved through the opportunity to cross-examine and test the evidence of the person who testified that the statement had been made to her, namely Marie Moore. 44. Mr Unwin, who argued this part of the case skilfully on behalf of the appellants this morning, also submitted that the evidence should have been excluded because there was no reasonable basis on which a jury could properly infer that the information (accepting, for this purpose, that it was conveyed to Marie Moore) had been communicated, whether by her or by anyone else, to the appellants. 45. We do not accept that submission. For the purpose of deciding whether they could properly make that inference, the jury was entitled to consider the whole of the evidence, including the evidence which strongly tended to indicate that it was indeed the appellants who had carried out the attack on Sibley that evening. 46. It is right to say that in summing up the judge did not explain to the jury as clearly as he might how they should approach this evidence and mistakenly referred to it as a “hearsay”; but he clarified the position in response to a note sent by the jury during their deliberations in which they asked: “What weight should we attach to the hearsay evidence that Mince had said that Jay Sibley and Richard Stanhope worked for Adam and Sticky from Athena Avenue, especially since it is unknown whether this was communicated to Big G [Big G being the name for the appellants’ drug dealing network]?” By that question, the jury showed that they had a sound understanding of the potential relevance of the evidence and of its limitations since, as they noted, there was no direct evidence that the information had been communicated to the appellants. 47. In dealing with that jury note the judge directed the jury as follows: “The Crown in their submissions are saying, well everyone was talking about the move to Richard Stanhope’s and you can infer that somebody would have mentioned it. That’s their approach. It’s a matter for you entirely what you make of it, but if you’re not sure there was such communication of that, then really the first part of your question falls away, you don’t really need to consider what weight you place on evidence if it wasn’t communicated.” 48. That direction, as it seems to us was, if anything, unduly favourable to the defence because it indicated to the jury that they should disregard the evidence unless they were sure that there was a communication of the information to the appellants. It seems to us that, on a correct legal analysis, the jury did not need to be sure of that fact in order to treat the evidence as relevant. At the end of the day all that they needed to be sure of in order to convict the appellants was that they were responsible for the shooting. Evidence indicating that information linking Stanhope and Sibley with the Adam and Sticky network may have been communicated to the appellants was relevant evidence which the jury could properly take into account in reaching their overall conclusion. But in any event no criticism can reasonably be made of the introduction of that evidence in circumstances where the judge gave the jury the direction that he did. We accordingly reject this ground of appeal. Ground 3: no case to answer 49. The third ground of appeal is that the judge was wrong to reject a submission made at the end of the prosecution case that there was no case to answer. 50. We do not think it necessary to lengthen this already long judgment by dealing in any detail with that argument. It is sufficient to say that, in our view, there was ample evidence adduced by the prosecution, some of which we have referred to earlier in this judgment, which justified the judge in leaving the case to the jury and on which a reasonable jury could properly convict these appellants. Conclusion 51. In these circumstances we consider that the convictions of these appellants are safe and the appeals must therefore be dismissed. Hodgkinson’s application for leave to appeal must, in consequence, also be refused.
{"ConvCourtName": ["Winchester Crown Court"], "ConvictPleaDate": ["4 April 2018"], "ConvictOffence": ["attempted murder", "encouraging or assisting the commission of an offence"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Winchester Crown Court"], "Sentence": ["Livingstone-Wright and Perry were each sentenced to 30 years’ imprisonment", "Smith was sentenced to 31 years’ imprisonment", "Hodgkinson was sentenced to 4 years’ imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["They"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["a man called Jay Sibley"], "VicNum": ["a man called Jay Sibley"], "VicSex": ["a man"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["on drugs"], "ProsEvidTypeTrial": ["CCTV footage", "telephone calls to the appellant", "evidence of identification", "prosecution witnesses", "evidence was given by the victim"], "DefEvidTypeTrial": ["but the purpose of their trip was to collect money, deliver more drugs and move their operation", "evidence was given by the victim"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["appellants"], "CoDefAccNum": ["(1)JORDAN RAY SMITH Appellants(2) RICARDO LIVINGSTONE-WRIGHT (3) JORDAN PERRY (4) SARA HODGKINSON"], "AppealAgainst": ["against their convictions"], "AppealGround": ["the judge’s exercise of discretion in rejecting the application to exclude the evidence", "The appellants contend that the judge was wrong to allow the prosecution to adduce the evidence given by Marie Moore", "The first ground of appeal is that the trial was unfair because of the way in which the evidence relating to the identification by Sibley and Stanhope of the people who carried out the attack was dealt with.", "the judge was wrong to reject a submission made at the end of the prosecution case that there was no case to answer."], "SentGuideWhich": ["section 3 of the Criminal Procedure Act 1865", "section 45 of the Serious Crime Act 2007", "section 78 of the Police and Criminal Evidence Act 1984"], "AppealOutcome": ["appeals must therefore be dismissed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["in our view, there was ample evidence adduced by the prosecution, some of which we have referred to earlier in this judgment, which justified the judge in leaving the case to the jury"]}
{"ConvCourtName": ["Winchester Crown Court"], "ConvictPleaDate": ["2018-04-04"], "ConvictOffence": ["encouraging or assisting the commission of an offence", "attempted murder"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Winchester Crown Court"], "Sentence": ["Hodgkinson was sentenced to 4 years’ imprisonment", "Livingstone-Wright and Perry were each sentenced to 30 years’ imprisonment", "Smith was sentenced to 31 years’ imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["Mixed"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Don't know"], "VictimType": ["Individual person"], "VicNum": ["1 of 1"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Yes-drugs"], "ProsEvidTypeTrial": ["prosecution witnesses", "evidence of identification", "evidence was given by the victim", "CCTV footage", "Digital evidence"], "DefEvidTypeTrial": ["evidence was given by the victim", "Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["3"], "AppealAgainst": ["against their convictions"], "AppealGround": ["the judge was wrong to reject a submission made at the end of the prosecution case that there was no case to answer.", "The appellants contend that the judge was wrong to allow the prosecution to adduce the evidence given by Marie Moore", "the judge’s exercise of discretion in rejecting the application to exclude the evidence", "The first ground of appeal is that the trial was unfair because of the way in which the evidence relating to the identification by Sibley and Stanhope of the people who carried out the attack was dealt with."], "SentGuideWhich": ["section 3 of the Criminal Procedure Act 1865", "section 78 of the Police and Criminal Evidence Act 1984", "section 45 of the Serious Crime Act 2007"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["in our view, there was ample evidence adduced by the prosecution, some of which we have referred to earlier in this judgment, which justified the judge in leaving the case to the jury"]}
360
Case No: 201701203 C5 Neutral Citation Number: [2017] EWCA Crim 1778 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BRADFORD CROWN COURT HIS HONOUR JUDGE THOMAS QC T20150784 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/11/2017 Before: LORD JUSTICE DAVIS MR JUSTICE LAVENDER and SIR NICHOLAS BLAKE - - - - - - - - - - - - - - - - - - - - - Between: R Respondent - and - DAVID ERNEST FLETCHER Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Rodney Ferm for the Appellant Ian Howard for the Crown Hearing date: 19 October 2017 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Davis: Introduction 1. This appeal against conviction is based on what is said to be an inconsistency between the verdicts of a jury. Appeals advanced on such a basis only relatively rarely succeed. But it is said that the present case is one in which the appellate court should interfere. 2. The appellant had faced trial at the Bradford Crown Court on an eight count indictment. He was on Counts 1 to 7 charged with indecent assault on a male contrary to s. 15(1) of the Sexual Offences Act 1956 . On Count 8 he was charged with sexual assault contrary to s. 3 of the Sexual Offences Act 2003 . The complainant, who may be styled G, was the same on each count. At the conclusion of the trial before HHJ Roger Thomas QC and a jury the appellant was on 24 February 2017 convicted on two counts (Counts 2 and 3 on the indictment). He was acquitted on the remaining counts. 3. He was in due course sentenced to a term of three years imprisonment on each count concurrent (subsequently reduced by this court to a sentence of one year’s imprisonment on each count concurrent). He has been required in consequence to register under the provisions of the Sexual Offences Act 2003 . Background facts 4. The complainant, G, was born on 3 August 1976. He has a younger sister. He had a somewhat troubled upbringing. Among other things, his mother, a single parent, had significant health and other problems and struggled to cope. From the age of five to the age of nine G attended primary school in Bradford. At the age of nine, in 1985, he moved to middle school in Bradford. He struggled at school. Throughout that time the appellant was deputy headmaster at the primary school in question, although he did not actually teach G. In that time the appellant and his wife came to know G’s family; and it also seems that G’s sister was friendly with the appellant’s daughter. It was not in dispute that G thereafter would sometimes visit and also on occasion stay over (in effect as a form of respite for the mother) at the home of the appellant and his wife. 5. In 1985 the appellant and his wife had bought a house in Long Lane, Queensbury, Bradford. There was evidence that it needed renovation and was not fit for occupation until 1986. It had around 2 acres of land attached, which they came to use in effect as a smallholding. In the summer of 1988 they then moved to a different house, the Old Sweet Factory in Wheatley, which did not have any significant land attached to it. They lived at the Old Sweet Factory until April 2007, when it was sold and they moved elsewhere. The appellant had in the meantime become head teacher at another school in 1990 and subsequently was ordained in 2001. 6. G (who had maintained social contact with the appellant and his wife until 2004) first made complaint to the police in 2014 that on a number of occasions he had been indecently assaulted by the appellant, both at the Long Lane address and at the Old Sweet Factory. He was to say that the offending first started when he was about nine years old, after he had gone to middle school, saying that it was “at the goats.” He said that it would continue at the Old Sweet Factory (where there were no goats) and indeed continued beyond the time he reached the age of sixteen. In the event, Counts 1 to 7 on the indictment spanned the period 3 August 1985 to 2 August 1992: Count 1 being for the period 3 August 1985 to 2 August 1986, Count 2 being for the period 3 August 1986 to 2 August 1987 and so on. Each such count of indecent assault was asserted at trial to be a “specimen” count; although no count was actually framed on the indictment as a multiple-incident count. Count 8 was charged as a specific count of sexual assault relating to an incident allegedly occurring much later, between December 2002 and May 2004 (originally put, before amendment, as occurring between March 2009 and March 2011). 7. In each case on Counts 1 to 7 the offence was tersely particularised on the indictment by stating that, in the relevant period for each count, the appellant “indecently assaulted” G, giving his age in such period in each case. 8. In summary, the prosecution case was that the appellant regularly indecently assaulted G by touching him over his clothing, both in the area of his genitals and chest (the appellant sometimes also putting his hand on his chest under his clothing). It was also said that the appellant would grind or push against G from behind and would also kiss him (G described it as “snogging” and referred to the prickles from the appellant’s facial hair). G said that it started at Long Lane, “at the goats”, where he would regularly visit. It continued, he said, after the move to the Old Sweet Factory. 9. As to Count 8, G said that this incident occurred when he and his wife to be (whom he had met in 2001) had gone to dinner with the appellant and his wife at the Old Sweet Factory. This was shortly before they married (in June 2004). While there the appellant whilst in the kitchen had pushed himself against G and tried to kiss him. There was evidence from G’s wife that G had appeared flustered at the end of that evening and a week or so later he told her what he said had happened. Thereafter, at all events, relations between the families were broken off. Subsequently, according to G’s wife, G had told his wife of the abuse he said he had suffered as a boy from the appellant. The police were, however, not informed until 2014, G having also told a Church Archdeacon in that year. 10. When arrested and interviewed the appellant answered questions in full. He denied all the allegations. He suggested that they were fabricated because G was angry that the appellant – who had in the meantime been ordained – had not been in a position to officiate at G’s wedding in 2004: which, he suggested, was why social contact had then ceased. The proceedings at trial 11. The essential issue at trial was whether the various allegations were true. 12. It was common ground that this was ultimately a word against word case. There was no independent corroboration for G’s account of events relating to Counts 1 to 7. As for Count 8, G’s allegations potentially had some support from his wife’s account of his demeanour that evening and his subsequent complaint to her. On the other hand, G had said that the appellant’s wife had or would have seen what occurred in the kitchen: and she gave evidence at trial wholly denying seeing anything untoward, either then or on any other occasion. 13. We gather that G’s evidence in chief was given by way of his ABE interview. This court was provided with a transcript. The court was not, however, shown a transcript of the cross-examination of G. 14. The actual transcript of the ABE interview provides a version of events which, as transcribed, does not, with respect, always give an altogether clear or coherent recital of events. However, G was to say that the appellant would take him to the house in Long Lane, albeit he never took his sister (there was, however, evidence from G’s mother, called by the prosecution as a witness, that the sister would sometimes go: as was also the evidence of the appellant and his wife and daughter). G among other things said “he used to have me helping with goats and stuff, I must have been about nine, so I’d just left primary school….” G also said that there was a period of time, when he was aged between twelve and thirteen, when he had gone to Cornwall for a few months and attended a local school in Cornwall before returning. He said that the offending reoccurred at the Old Sweet Factory after he returned from Cornwall. G gave further evidence about what he said had occurred. So far as Long Lane was concerned, he among other things said: “he’d start messing about, he were messing about at first….. doing bedding on straw, goats and stuff, like, starting…. and then it’d end up…. not touching genitals, touching, but touching everywhere else and kissing me like a girl….” He went on to say that “the goats were the first thing… It’s just what happened when we were bedding out…. Looking back, you think, you know, you think it’s just messing about but it weren’t, it were touching….” He went on to indicate where he had been touched. He went on to say “…but that were away from everyone as well, cos we were mucking out, weren’t we?” Concerning later incidents, he said he would see the appellant around once a week (that was in issue at trial). When asked how many times these things happened, he said: “As soon as he could get away, as soon as no one were there.” 15. It was not in dispute that G had remained in contact with the appellant and his family until 2004 but not thereafter. His mother was to say in evidence that, as a child, G had seemed happy to go and visit the appellant and never said to her that anything wrong had happened. 16. One feature of G's ABE interview is that much of it included allegations by G of (altogether more serious) sexual abuse of him as a child by another, very prominent, individual in the local community. Indeed it was suggested at trial that this may have tainted G's perception about the appellant's own conduct. It was also suggested that his complaints may have been prompted by a bitter and deluded relative (since deceased). 17. The appellant gave evidence at trial in line with his interview. He totally denied all the allegations. His wife also gave evidence, as did other witnesses. A considerably amount of character evidence was also adduced, attesting to the appellant's attributes and good service. The appellant had no previous convictions of any kind. The summing-up 18. No criticism of any sort is made as to the fairness or balance of the summing-up. 19. The judge – who of course gave the required direction as to burden and standard of proof - pointed out that there was "a dramatically opposed clash of evidence. It happened in these ways, [G]; no such thing happened, the defendant”. Dealing with the indictment, the judge also pointed out that the first seven counts covered the period when G was aged between nine and sixteen (then giving appropriate direction relating to the lapse of time). The judge noted that these had been described at trial as "specimen" counts. As to that the judge said: “If you are going to convict the defendant on any one count you would have to be sure that the conduct that he [G] generally describes, those various acts, not all of them but an act during that particular year, whichever count you are looking at, that it did happen on at least one occasion about which you are all agreed during that year of his childhood...” The judge went on to give a full separate treatment direction. Amongst other things he said this (saying that he would come on to Count 8 separately): “Counts 1 to 7 they are separate counts but this is not a situation where you can say to yourselves: well we are sure he has done it and therefore guilty across seven counts. Each count has to be looked at separately and individually... there [are] eight verdicts to return here, individual separate verdicts in relation to each count.” 21. The judge had noted in the course of the summing up the effectively unchallenged evidence of the defence that the goats only arrived at Long Lane in around October 1986: which was after the period specified in Count 1. As to Count 4, it was also noted by the judge that in the period between August 1988 and August 1999 G's own evidence was that he had for much of that time been in Cornwall. Having made these observations as to timings the judge then said: “So I go back to what I was saying, each count does need that separate and individual consideration in terms of did anything happen at all in that year, of course the defence case is nothing happened in any year, but did anything happen in a particular year, are you sure of it, and look at the particular year as well as the particular conduct, that is the task ahead of you.” 22. The judge summarized the facts and the issues arising on all the evidence relating to the counts. The judge set out the respective cases of the prosecution and defence. In the result the jury convicted on counts 2 and 3 and acquitted on the remaining counts, as we have said. The legal principles 23. There was no dispute before us about the applicable legal principles. They are authoritatively set out in the recent decision of a constitution of this court in the case of Fanning, Kerner, Osianikovas and de Jesus [2016] EWCA Crim 550 , [2016] 2 Cr. App. R. 19. That decision itself confirmed the previous Court of Appeal decision in Durante [1972] 3 All ER 962 . 24. In Durante , Edmund Davies LJ, giving the judgment of the court, cited with approval the remarks of Devlin J in the unreported decision of Stone (1954). Devlin J there had said: “When an appellant seeks to persuade this court as his ground of appeal that the jury has returned a repugnant or inconsistent verdict, the burden is plainly on him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they were an unreasonable jury, or that they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is on the defence to establish that.” Edmund Davies LJ then formulated the position as this: “...the burden is on the appellant to show that the verdicts on different counts are not merely inconsistent but are so inconsistent as to demand interference by an appellate court.” On the facts of that particular case, (where, as it happens, the trial judge had directed the jury that the two counts in question did not necessarily stand or fall together), it was held that the appellant had discharged the burden resting on him. 25. Those principles were affirmed in Fanning . It was there also pointed out, by reference to statements in earlier authority, that the jury is "not a precision instrument" and that "if a flawless process of reasoning were required a jury would be a strange body from which to require it." It was also stressed that the court must be careful not to usurp the role of the jury. 26. A further principle in this context - and relevant to the present case - was affirmed in Fanning . That is to the effect that, where a complainant’s credibility is in issue and that complainant's evidence is uncorroborated, guilty verdicts are not to be regarded as unsafe just because the jury also has returned not guilty verdicts in relation to other counts based on that complainant's allegations: see, for example, Cilgram [1994] Crim LR 587. It thus is generally permissible for a jury to be sure of the credibility or reliability of a complainant on one count on an indictment but not on another count. A jury therefore is not to be treated as having rejected a witness's evidence altogether just because it is not convinced of the defendant's guilt on a particular count: see Fanning at paragraph 27. Accordingly there is no necessary irrationality in, for example, convicting on one count and acquitting on another even where both counts relate to the same sexual encounter: the case of Osianikovas itself being such a case. As the court, however, also went on to say (in dealing with the case of de Jesus ): "…although there should be no differentiation as a matter of law between a single event and a series of events, the potential for different verdicts is greater than if the court is trying a number of counts arising from a single episode": see paragraph 100. 28. Yet further, even where a strict logical inconsistency can be identified it by no means follows that the verdicts are so inconsistent as to require the court to interfere: as the case of Segal [1976] Crim LR 324 and the Australian case of McKenzie v R [1976] 190 CLR 348, both cited with approval in Fanning, demonstrate. 29. Finally, the court in Fanning emphasised (at paragraphs 29 and 30) that it will not usually be open to a defendant to complain of inconsistent verdicts where a jury has, without objection, been given a conventional separate treatment direction in the summing up. After all, it is difficult to complain of a jury acting illogically or irrationally when it returns verdicts in a way that it has been instructed it was legally entitled to do. Disposal 30. We turn to our conclusion in the present case. 31. On one, simple, view there is no illogicality or inconsistency here at all. The jury was, in principle, not required either to accept or to reject G's evidence in all respects. Further, it had been given a full separate treatment direction. On that basis alone it can be said that the verdicts cannot be held to be so inconsistent that no reasonable jury could have reached the conclusion that the verdicts could stand together. 32. However, we do not think that it would do justice to Mr Ferm’s careful and persuasively put arguments to dispose of this appeal on so summary a basis. Indeed we apprehend that it was those arguments, as presented in writing and subsequently orally and in writing supplemented before us, that persuaded the single judge to grant leave to appeal in this case. 33. Mr Ferm, understandably enough, put emphasis on the acquittal on Count 8. That was the most recent incident in point of time, occurring (as alleged) when G was an adult and when his memory would have been fresher. Further, the allegation had some degree of support from his wife’s evidence. Yet the jury acquitted. Mr Ferm thus queried how the jury nevertheless could be sure of guilt on two, very much earlier, incidents when G was a child and when his evidence was wholly uncorroborated. We see the point. But Count 8 related to a quite separate and self-contained incident and the evidence both of prosecution and of defence witnesses was different. It cannot be assumed that the assessment of G's evidence relating to that particular count was required to be taken by the jury as the key to the assessment of his credibility and reliability on all the other counts. Thus the acquittal on Count 8 cannot of itself vitiate the conviction on other counts relating to much earlier incidents: as Mr Ferm rightly accepted. 34. It also cannot be said that there is any logical or other inconsistency between the acquittal on Count 1 and the convictions on Counts 2 and 3 - those three counts covering events at Long Lane - if only because there was the clear distinction arising from the date when the goats actually arrived late in 1986. Likewise, with regard to the Old Sweet Factory, Count 4 potentially had a clear differentiation: since that count spanned the period when, on G's own evidence, he was for several months in Cornwall. 35. Mr Ferm accepted all this - indeed it explains, he said, the judge’s separate treatment direction in the summing up. But he said that there was more. In particular, his point was that the jury also acquitted on Counts 5, 6 and 7 whilst at the same time convicting on Counts 2 and 3. He submitted that no rational basis for this differentiation can be discerned. He submitted that the evidence of G had drawn no difference in type with regard to the conduct alleged as between Long Lane and the Old Sweet Factory. It was not said, for example, that there had been any progression or variation in the type of sexual abuse alleged as between the two venues. He submitted that there was no additional evidence specific to what happened at Long Lane; and, on the contrary, those matters related back furthest in time and when G was at his youngest. True it was that G had "anchored" those particular allegations relating to Long Lane by saying that they had occurred "at the goats" - but that, he submitted, was of no true materiality given that it was always common ground that G had on a number of occasions been to Long Lane "at the goats". 36. For his part, Mr Howard for the Crown drew attention to the way in which the indictment had been framed and the way in which the judge had in consequence summed up to the jury. He stressed that each of Counts 1 to 7 of the indictment was specific as to the year in which what was alleged happened and as to the age of G at the time. Thus the emphasis of G on what happened occurring “at the goats”, after he had gone to middle school, was material to the jury's consideration not only of what happened but when it happened: as the summing up had specifically required the jury to consider. Thus there was a differentiation in at least this respect between these counts and the counts relating to the Old Sweet Factory. (Those are points of a general kind, we note, also considered material by the court in disposing of the case of Fanning , on its facts: see paragraphs 38 to 40 of the judgment.) In any event, Mr Howard said, there were other differences as to the evidence relating to the individual counts. For example, G had said that the abuse at Long Lane occurred whilst the goats were being bedded out; but there were was no such level of detail with regard to what is said to have later occurred at the Old Sweet Factory whilst G was still under the age of sixteen. 37. We have carefully considered the points made. On one view, the jury's decision to acquit on count 5, 6 and 7 but to convict on counts 2 and 3 - counts 1 and 4 are much more easily explained - may seem surprising: the more so, perhaps, when set in the context of the acquittal on count 8 also. But the authorities are clear that what may seem to an appellate court (which of necessity has not heard or seen the witnesses at trial) to be surprising is not of itself enough to entitle it to set aside verdicts of a jury on the ground of inconsistency. Indeed in a case such as the present it could involve the court attempting to engage in a degree of post - trial rationalisation which accords to a jury's reasoning the requirements of a precision instrument: which again this court should not do. 38. We are in any event not able to say, from the materials which we have seen, that the evidence which G gave as to what occurred was in effect undifferentiated between what happened at Long Lane and what happened at the Old Sweet Factory. It is possible, at all events, to extract a greater degree of specificity from the transcript of the ABE interview as to the alleged events at Long Lane (for example, that the indecent assaults occurred while mucking out) as compared to the very generalised evidence about what occurred thereafter at the Old Sweet Factory (apart from count 8). It may be – we have no way of knowing ourselves – that this may have been reinforced in the minds of the jury as a result of the oral evidence. The jury may well have concluded that with regard to Long Lane it was persuaded on Counts 2 and 3, by the evidential details provided, for each year as charged (Count 1 having the obvious difference as set out above) but may have been left in doubt by reason of the lack of detail on Counts 4, 5, 6 and 7. We cannot, at all events, say that the jury’s verdicts are wholly inexplicable. The verdicts are not so inconsistent as to demand interference by the court. 39. Moreover, the judge had in terms given a very full separate treatment direction to the jury, without objection. It is also perhaps a point of comment that – whilst the potential differences for Counts 1, 4 and 8 were clear and spelled out in the summing-up – the trial judge, who had heard all the evidence, had not thought it appropriate to give the jury a “steer” as to there being any difficulty in reaching different verdicts between Counts 2 and 3 on the one hand and Counts 5, 6 and 7 on the other hand. Conclusion 40. It is essential in cases of this kind that the appellate court should adhere to the principles of Durante , as explained and confirmed in Fanning . Although the powerful arguments of Mr Ferm have given us some cause for hesitation, our ultimate conclusion is that, on the facts of this particular case, there is no inconsistency here such that the verdicts cannot stand and such that this court is required to interfere. The appellant has not discharged the burden on him in this regard. The convictions are to be regarded as safe. That being so, we must dismiss this appeal against conviction.
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{"ConvCourtName": ["Bradford Crown Court"], "ConvictPleaDate": ["2017-02-24"], "ConvictOffence": ["indecent assault on a male"], "AcquitOffence": ["indecent assault on a male", "sexual assault"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Bradford Crown Court"], "Sentence": ["three years imprisonment"], "SentServe": ["Concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Male"], "VicAgeOffence": ["9"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["ABE interview", "Victim testimony"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against conviction"], "AppealGround": ["inconsistency between the verdicts of a jury"], "SentGuideWhich": ["Sexual Offences Act 2003.", "Sexual Offences Act 1956."], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["the jury’s verdicts are wholly inexplicable. The verdicts are not so inconsistent as to demand interference"]}
226
Neutral Citation Number: [2010] EWCA Crim 2335 Case No: 201001442 A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: MONDAY, 20TH SEPTEMBER 2010 B e f o r e : LORD JUSTICE LEVESON MR JUSTICE DAVIS MR JUSTICE LLOYD JONES - - - - - - - - - - - - - - - - - - - - - R E G I N A v BENJAMIN ALAN COOPER - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr J Samuels Qc Appeared On Behalf Of The Applicant Mr H L Bentham Appeared On Behalf Of The Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE LEVESON: On 8 February 2010 in the Crown Court at Preston before Nicol J this appellant pleaded guilty to manslaughter by reason of diminished responsibility and attempted murder. On 16 September 2010 he was sentenced for manslaughter to imprisonment for public protection pursuant to section 225 of the Criminal Justice Act 2003 with a minimum term of 6 years, less time spent on remand, and for attempted murder to a similar sentence with a minimum term of 4 and a half years, less time spent on remand. On both counts a Hospital and Restriction order was made pursuant to section 45 A of the Mental Health Act 1983 as amended, directing that the appellant was to remain at Guild Lodge secure accommodation, as opposed to prison. The effect of this order was to make the appellant subject to the restrictions contained within section 41 of the Mental Health Act 1983 concerning his release from hospital, where upon depending upon any prior assessment of the Parole Board he would be returned to prison. He now appeals against sentence by leave of the single judge. 2. The facts can be recited comparatively briefly. The appellant lived in Millam with his partner, Claire Marshall, their three year old daughter and Miss Marshall's daughter from a previous relationship. The appellant was drinking too much and taking excessive amounts of illicit drugs, which affected his character and the way he behaved. His relationship with Miss Marshall as a consequence broke down in January 2008. After they parted company the appellant obtained an order that he should be allowed to see his daughter, which regularly he did. 3. At about 9.30 on 24 January 2009 the appellant arrived at Miss Marshall's home by prior arrangement to collect his daughter. The appellant then jumped on Miss Marshall and started hitting her until she fell to the floor. He removed his pen knife and made a determined attempt to cut her head from ear to ear. Presumably finding the knife inadequate, he then went into the kitchen and grabbed a larger knife. Miss Marshall's elder child tried to stop the appellant, but he held the knife up to her. The appellant continued to attack Miss Marshall with the larger knife. The child ran from the house with her little sister and tried to get help from neighbours. 4. The next door neighbour, Mr Morris, was at home when Miss Marshall's daughter banged on the door shouting hysterically for help. Mr Morris attempted to pull the appellant off Miss Marshall, but was unable do so. As a result, he drove to the police station to bring back the police. In the meantime, the appellant had left the house and driven off. He was covered with blood. When the police arrived they found Miss Marshall lying face down with the knife on her back. 5. The attack was of the utmost savagery. 21 incised wounds to the head and neck, 12 wounds to the right arm and 8 wounds to the left arm were found, as well as lesser injuries to the lip and mouth. The injuries were multiple and extensive, with both superficial and deep incised wounds to the neck and lower part of the face. Many were caused by cutting or the slashing motion of the weapon, others by deep, penetrating stab wounds. The wounds encircled the whole of the neck, cutting through skin, the superficial anterior and lateral neck muscles and the posterior para-spinal muscles. The spine had also been damaged. In the opinion of the pathologist, the appellant had been trying to cut off Miss Marshall's head. She died very quickly after the attack, her vital organs and arteries having been severed. 6. In the mean time the appellant had driven to the home of his step-father, Gerald Fern. He knocked on the door covered in blood. Mr Fern let him in and asked what he had been up to. The appellant replied he had been doing a bit of butchery and had come to borrow a meat cleaver and a knife. Mr Fern pointed out the knife draw and went into the dining room. As he turned his back, the appellant picked up the meat cleaver and struck Mr Fern two forceful blows on the head, stunning him. A struggle ensued. The appellant pulled a second knife from the drawer and attempted to wound Mr Fern. The struggle moved into the street, where Mr Fern eventually managed to disarm the appellant, by which time he was bleeding heavily and had been severely injured. The appellant ran back inside, picked up two other knives, and returned to attack Mr Fern once more. The struggle recommenced until the appellant suddenly announced "that's enough." Mr Fern asked why. The appellant replied "Claire is in a worse state than you are". There were a number of eye witnesses to the attack, and the police were soon on the scene. 7. Mr Fern was airlifted to hospital. Had he not arrived so quickly he may not have survived. He suffered a severe laceration to the right ear, which was nearly completely cut off. He had lacerations to the left forehead and left neck, a bruised and swollen right eye, several deep cuts to the right arm and deep lacerations to his skull, right shoulder, chest and back. He had significant injuries to the tendons of his right arm. It was unknown whether the functions of his arm would be permanently affected. 8. The appellant was arrested nearby. He was briefly examined by a psychiatrist before he was interviewed. He gave a detailed account in the interview, describing the weapons and attacks. He said he felt frenzied at the time. He thought Miss Marshall was going to have him murdered so he had seized the initiative. He had attacked Mr Fern, as if he was going to get killed himself he might as well go and get Mr Fern. He would not admit wanting to kill Miss Marshall, but he did accept that probably he wanted to inflict serious injury upon Mr Fern, although he did not know if he actually wanted to kill him. 9. The import of these offences is described in moving terms in victim personal statements from Miss Marshall's daughters, her father and the grandparents of two of her children, who are now looking after all three girls. The effects of these offences will clearly be with them forever. 10. The appellant is now aged 36 and was of prior good character. Although he had no previous history of prior mental disorder, he was clearly, at least in substantial part, in the grip of serious mental disorder at the time of this offending. Initially he was considered unfit to plead and for the purposes of sentence there were not only a number of reports prepared covering his fitness to plead, but also a series of psychiatric reports dealing with the question of diminished responsibility. In particular a report of 21 November 2009 provided on behalf of the appellant by Dr Green stated that the appellant suffered from a major mental illness classified as a delusional disorder or paranoid schizophrenia. Had he not been suffering from a severe mental illness the offences would not have occurred. They were driven, he concluded, by his delusional beliefs. The severity of the illness indicated that his responsibility for his actions was substantially diminished. He recommended a hospital order with indefinite restriction. 11. In a report dated 25 November 2009 prepared for the Crown, Professor Peckitt noted the appellant's heavy drug misuse coupled with aggressive and abusive elements of his personality, which he concluded gave rise to the situation in which he had developed an acute and severe delusional disorder. He considered his possessive, abusive and violent conduct towards his former partner possessed a significant element in the creation of risk when he became unwell. He concluded that the appellant exhibited the signs of threat control override syndrome, suffering from a severe mental disorder at the time of both offences. He also recommended detention under the Mental Health Act, observing that a restriction order under section 41 would be appropriate because the risk to the public was manifest, and the need for long term supervision almost unquestionable. He raised the alternative disposal of a hybrid order, reserved for cases in which he considered that there was a high level of culpability. Such a sentence would be optimised without loss of opportunity for care and rehabilitation. He also concluded that attaching a tariff of more than five years might undermine and paradoxically weaken the benefits of mental health treatment. 12. A further report was available from the psychiatrist who had been responsible for the appellant's treatment, Dr Abdur. He confirmed that the appellant was suffering from a severe psychiatric illness, paranoid schizophrenia, which is a mental disorder within the meaning of the Act . The condition, he concluded, had deteriorated in the weeks leading up to the offences, and the appellant's illness required continuing detention in a secure hospital for appropriate treatment. It was highly likely that he was driven by his delusional beliefs when he committed the offences and was suffering from paranoid schizophrenia. 13. When passing sentence the judge, who had heard both Dr Green and Professor Peckitt give evidence at length, observed that these were appalling crimes. If the appellant had not been suffering from a mental disorder, they would have led to extremely lengthy sentences of imprisonment. He accepted the conclusion of the doctors that the appellant was suffering from a severe psychotic mental disorder, probably taking the form of paranoid schizophrenia. He went on that the abnormality of mind from which he was suffering was directly linked to his attack on Claire. He attacked her because in his disturbed state he believed that she was planning to kill him. He could have given no thought of the impact on Claire's daughters, especially the two who had witnessed events. In a person of sound mind, indifference or thoughtlessness of this kind would be a further aggravating feature, but the learned judge proceeded on the basis that this was an aspect of the delusional disorder which had such power over the appellant. 14. He also concluded that the appellant was still suffering from a serious mental disorder when he attacked Gerald Fern, a quarter of an hour later. The link, however, was less clear cut. The appellant thought that Mr Fern had been involved in financial conspiracy against him, but did not consider that he was at immediate risk from him. He felt he crossed the point of no return so, "might as well" settle his deluded account with him, too. Even from that distorted perspective, the learned judge concluded that the attack was an act of revenge, not self-defence. 15. The judge accepted that neither offence would have occurred but put for the appellant's illness. Whilst he suffered a complete loss of control prior to killing Claire, he had regained some control by the time he came to attack Gerald. The appellant's disorder was clearly of a nature and degree that made detention in hospital to obtain medical treatment appropriate. Such medical treatment was available, and he had responded positively to the treatment so far. The judge, however, went on: "While I accept that you need treatment for your mental disorder in your case, the sentence I must impose must also meet two other objectives. Your psychosis can cause you to be an extremely dangerous person, as these offences demonstrate. There should be no question of release until the responsible authorities are clear that you no longer represent a danger to public safety. Second, while your responsibility for these crimes is diminished by your mental disorder, it is not wholly extinguished. A significant degree of responsibility remains. You have pleaded guilty to manslaughter on the basis of diminished responsibility. Once you were in the grip of the severe psychosis, I accept that your responsibility for Claire's death was very considerably diminished. It is not, though, eliminated entirely. Professor Peckitt thought that it was overwhelmingly likely that this psychosis was stimulated by your misuse of illegal drugs, particularly amphetamines, and, somewhat ironically, your withdrawal from them in the Autumn of 2009. Dr Green thought it was more likely than not that your drug abuse contributed to your illness. It is true that you had not taken illegal drugs or alcohol at the time of these offences. I accept that you would not have foreseen that these drugs would drive you to mental disorder, but by starting to take them you did voluntarily embark upon a course which was to have such tragic consequences. For that you must bear some responsibility. That applies as much to the attack on Gerald. Here, too, the attack would not have happened but for your delusions, yet you had regained sufficient control after killing Claire to drive your car to his house and to appear relatively calm when you first spoke to him. Although you thought that Gerald was part of the conspiracy against you, your attack on him was not prompted by the same motives as had been your attack on Claire. This means that the difference between these two offences is not just the illegal one, but there is no partial defence to the offence of attempted murder based on diminished responsibility. For these reasons I consider that I must impose a sentence of imprisonment. You undoubtedly pose a very significant risk of causing very serious violence to members of the public. That risk may diminish as treatment continues to be successful, but when, if at all, that will occur is uncertain. The risk will continue for an indefinite time into the future. Only an indeterminate sentence of imprisonment will adequately protect the public." 16. Mr Samuels QC, who appears for the appellant in this court as he did before Nicol J, has taken us to the origins of section 45 A of the Mental Health Act 1983 , to be found in the White Paper, Protecting the Public, published in 1999, which included the following analysis: "8.12. The government proposes changes in the arrangements for the remand, sentencing and subsequent management of mentally disordered offenders to provide greater protection to the public, and to improve access to effective medical treatment for those offenders who need it. The central change, if adopted, would be the provision of a "hybrid order" for certain mentally disordered offenders, for whom the present form of hospital order is unsatisfactory, particularly those who are considered to bear a significant degree of responsibility for their offences. The order will enable the court in effect to pass a prison sentence upon an offender and at the same time his immediate admission to hospital for medical treatment. 8.13. The hybrid order, together with other proposals amending the detail of the Mental Health Act 1983 would substantially increase the flexibility of arrangments for dealing with mentally disordered offenders at all stages from remand through to rehabilitation. In particular it would enable the court to deal with some of the most difficult cases in a way which took proper account of the offender's need for treatment, the demands of justice and the right of other people to be protected from harm. 8.14. Existing sentencing arrangements for offenders who are mentally disordered require the court to decide either to order the offender's detention in hospital for treatment or to sentence him to imprisonment or to make some other disposal. In some cases an offender needs treatment in hospital but the circumstances of the offence also require a fixed period to be served in detention. This may be because the offender is found to bear some significant responsibility for the offence, notwithstanding his disorder, or because the link between the offending behaviour and the mental disorder is not clear at the time of sentencing. The hybrid disposal would be a way of enabling the requirement of sentencing in such cases to be met. Under an order an offender would remain in hospital for as long as his mental condition required but if he recovered or was found to be untreatable during the fixed period set by the court he would be remitted to prison. The hybrid order was recommended for use in sentencing offenders suffering from psychopathic disorders by the Department of Health and Home Office working group on psychopathic disorder. The Government is considering whether it might be made available in respect of offenders suffering from all types of mental disorder currently covered by Mental Health legislation." 17. Legislative effect was given to this proposal by section 45 A of the 1983 Act initially in respect of psychiatric disorders, but now extended to all forms of mental disorders. Mr Samuels places particular emphasis on paragraph 8.12 and the need for the requirement that an offender retain a significant degree of responsibility for their offence. He also argues that the only two examples of this power being considered by this court, Staines [2006] EWCA Crim 15 and House [2007] EWCA Crim 2559 , were cases where the order was appropriate because of the uncertain nature of the appellant's condition, although his suggestion that a mental illness will require treatment and a psychiatric order is likely to merit imprisonment is not reflected in the authorities. In reality, those suffering from a mental illness such as depression may very well retain significant responsibility for their offending, albeit that the responsibility is substantially diminished, but not extinguished by reason of their illness. 18. Mr Samuels does not seek to challenge the assertion that a substantial period of treatment is likely to be necessary. He submits the pitfall of the sentence is that at the time when a Mental Health Tribunal is prepared to conclude the appellant no longer suffers from a mental illness sufficient to warrant detention in hospital, his therapeutic rehabilitation could be thwarted because the Parole Board would have different criteria to consider. Based on the evidence of Dr Green, he describes the result, in all probability, would be a transfer back to a prison and a heightened risk of relapse with a significant danger to staff and prisoners within the prison setting, before a transfer back to hospital might be affected. Pausing there, we observe that if the appellant's therapeutic rehabilitation were to be so fragile that a prison setting, however structured to deal with one who had suffered serious mental disorder, might cause it to reemerge, for our part we would be very concerned about the potential pitfalls he would face if he had been discharged back immediately into the community. We note that Nicol J considered the risk, but still considered it appropriate to make the order that he did. 19. In any event, we do not accept that the potential risk represents a realistic appreciation of the position. For many years under section 47 of the Mental Health Act 1983 it has been possible for the Secretary of State to transfer those sentenced to a term of imprisonment to a mental hospital if mental illness requiring such treatment has required it. Assuming eligibility for parole, when detention in hospital is no longer necessary the responsible medical officer treating such a prisoner can doubtless recommend either a return to prison or a discharge into the community, presumably in the usual course of events through mental health facilities offering decreasing security. As identified in Staines , the procedure is for the Mental Health Review Tribunal, if so satisfied, to make a recommendation to the Parole Board for release. The offender remains in hospital until such time as the Parole Board makes its decision. Mr Samuels also suggests that in a secure hospital the appellant would not have access to the type of courses that would be necessary to satisfy the Parole Board that he no longer posed a significant risk to the public. Suffice to say we have no basis for concluding that ways could not and would not be devised for the appellant to demonstrate that he did not pose a risk to the public, which in any event would doubtless be necessary in order for him to persuade a Mental Health Review Tribunal that his mental illness was sufficiently abated that his continued detention was no longer justified. 20. As to post release support, although supervision and monitoring arrangements which may be obtained under a life licence are not necessarily the same as a comprehensive and social psychiatric support package and reporting requirements which a Mental Health Review Tribunal might impose as a condition of discharge, we can see no reason why appropriate arrangements could not be made at the instance of the Parole Board. Further, what is absolutely critical for appropriate cases is the wider ability to recall for breach of a life licence, as opposed to a failure to comply with a support package put in to place by the Mental Health Review Tribunal, and in particular the wider ability to recall, absent collapse of mental health. 21. This analysis is not of course dispositive of this appeal, because the thrust of Mr Samuels' cogent argument is that the appellant bore no significant responsibility for the crimes to which he pleaded guilty. The illness was clearly defined, as was the link between that illness and the offending, so he argued that the judge was wrong to attach that responsibility to the appellant. There was no reliable evidence enabling the court to assess the contribution that had been made in the development of the appellant's psychosis by his voluntary abuse of drugs, the consequences of which he could not have seen. Mr Bentham QC for the Crown challenges this submission and argues that the appellant bore a significant responsibility for what he had done. 22. We revert to the judge's conclusions. He recognised that the appellant had attacked Claire Marshall because of his delusional belief that she was planning to kill him, and his failure to recognise the impact on the daughters, especially the two who witnessed attack, was a further aspect of his delusional disorder. He also recognised that the delusional disorder was a powerful driver in relation to the attempted murder of Gerald Fern. Having considered the papers with real care and having heard both the psychiatrists, he remained of the view that the appellant had regained some control by the time of his attack on Gerald and specifically concluded that his responsibility was not wholly extinguished, but that a significant degree of responsibility remained. By voluntarily ingesting prescribed drugs he had voluntarily embarked upon the course of events which led to his illness, and therefore bore some responsibility, and he had also regained a measure of control when he went on to attack Mr Fern. 23. Nicol J was in the best position to reach conclusions about what the psychiatrist said and the responsibility of the appellant. He did so expressing his views carefully and cogently, and there is no basis upon which it would be appropriate for us to interfere with those conclusions. In those circumstances it is not realistic to argue that the judge was wrong in principle to conclude that the appellant bore a significant responsibility for the offences, and furthermore that public safety did not justify the additional protection that an order under section 45 A of the Mental Health Act would bring. In these circumstances, notwithstanding Mr Samuel's helpful submissions, this appeal is dismissed.
{"ConvCourtName": ["Crown Court at Preston"], "ConvictPleaDate": ["8 February 2010"], "ConvictOffence": ["attempted murder", "manslaughter by reason of diminished responsibility"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["less time spent on remand"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Preston"], "Sentence": ["with a minimum term of 6 years", "similar sentence with a minimum term of 4 and a half years", "imprisonment for public protection"], "SentServe": ["data not available"], "WhatAncillary": ["Hospital and Restriction order"], "OffSex": ["he"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["delusional disorder or paranoid schizophrenia"], "OffIntoxOffence": ["drinking too much and taking excessive amounts of illicit drugs"], "OffVicRelation": ["his step-father"], "VictimType": ["Miss Marshall"], "VicNum": ["struck Mr Fern", "Miss Marshall"], "VicSex": ["step-father", "Miss Marshall"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["Miss Marshall's home"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["number of eye witnesses", "injuries were multiple and extensive"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["weapons and attacks"], "MitFactSent": ["suffering from a severe psychotic mental disorder"], "VicImpactStatement": ["victim personal statements"], "Appellant": ["Applicant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence"], "AppealGround": ["the appellant bore no significant responsibility for the crimes to which he pleaded guilty"], "SentGuideWhich": ["Mental Health Act", "section 225 of the Criminal Justice Act 2003", "section 45A of the Mental Health Act 1983"], "AppealOutcome": ["this appeal is dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["not realistic to argue that the judge was wrong in principle"]}
{"ConvCourtName": ["Crown Court At Preston"], "ConvictPleaDate": ["2010-02-08"], "ConvictOffence": ["attempted murder", "manslaughter by reason of diminished responsibility"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Preston"], "Sentence": ["similar sentence with a minimum term of 4 and a half years", "with a minimum term of 6 years", "imprisonment for public protection"], "SentServe": ["data not available"], "WhatAncillary": ["Hospital and Restriction order"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Had mental health problems"], "OffIntoxOffence": ["Yes-drinking&drugs"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1 of 2", "2 of 2"], "VicSex": ["Mixed"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["number of eye witnesses", "Medical"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["weapons and attacks"], "MitFactSent": ["suffering from a severe psychotic mental disorder"], "VicImpactStatement": ["Yes"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence"], "AppealGround": ["the appellant bore no significant responsibility for the crimes to which he pleaded guilty"], "SentGuideWhich": ["Mental Health Act", "section 45A of the Mental Health Act 1983", "section 225 of the Criminal Justice Act 2003"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["not realistic to argue that the judge was wrong in principle"]}
356
Case No: 200905323 A8 Neutral Citation Number: [2010] EWCA Crim 244 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 5 February 2010 B e f o r e : MR JUSTICE SILBER MR JUSTICE KENNETH PARKER - - - - - - - - - - - - - - - - - - - - - R E G I N A v KEVIN TOMKINS - - - - - - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - - - - - - The Appellant and the Crown were unrepresented - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE SILBER: On 14 April 2008, Kevin Tomkins appeared at the Crown Court in Birmingham for sentence. He had previously pleaded guilty before the Magistrates' Court to a Count of burglary of a dwelling, the attempted burglary of a dwelling, and theft. He also asked for 15 offences to be taken into account. He was then committed to the Crown Court for sentence. 2. The sentence imposed upon him was 12 months' imprisonment, suspended for 18 months concurrent on each Count. In addition, he was required to complete 180 hours unpaid work on a Think First Scheme, and 24 hours of supervision. The matter had been referred by the registrar to this court, and we grant leave to appeal. 3. There had in fact been applications for a breach on 16 September 2008. The judge on that occasion ordered the sentence to continue with an additional 7 hours unpaid work to be imposed to mark the breach. Therefore, the order became more onerous. Subsequently, the appellant again was charged with breaching the order. This time the matter came before HHJ Inman QC, and he helpfully drew attention to the fact that the supervision period was too long. In those circumstances, counsel for the appellant appealed for leave to appeal on the basis that the 24 month supervision period was longer than the 18 month operational period, and therefore it was not justified by law. 4. It is correct that section 189(4) of the Criminal Justice act 2003 provides that: "The supervision period must not end later than the operational period". 5. As the operational period was 18 months, the supervision period of 24 months is too long and therefore unlawful. We therefore allow this appeal, reducing the supervision period from 24 months to 18 months, with effect from the date on which the sentence was imposed, which is 14 April 2008. 6. To that extent this appeal is allowed.
{"ConvCourtName": ["Crown Court in Birmingham"], "ConvictPleaDate": ["14 April 2008"], "ConvictOffence": ["attempted burglary of a dwelling", "burglary of a dwelling", "theft"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["before the Magistrates' Court"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court in Birmingham"], "Sentence": ["180 hours unpaid work on a Think First Scheme, and 24 hours of supervision", "12 months' imprisonment, suspended for 18 months"], "SentServe": ["concurrent"], "WhatAncillary": ["180 hours unpaid work on a Think First Scheme, and 24 hours of supervision"], "OffSex": ["He"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["data not available"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["sentence"], "AppealGround": ["the fact that the supervision period was too long."], "SentGuideWhich": ["section 189(4) of the Criminal Justice act 2003"], "AppealOutcome": ["allow this appeal, reducing the supervision period from 24 months to 18 months"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["As the operational period was 18 months, the supervision period of 24 months is too long and therefore unlawful."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["Crown Court In Birmingham"], "ConvictPleaDate": ["2008-04-14"], "ConvictOffence": ["theft", "attempted burglary of a dwelling", "burglary of a dwelling"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["before the Magistrates' Court"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court In Birmingham"], "Sentence": ["180 hours unpaid work on a Think First Scheme, and 24 hours of supervision", "12 months' imprisonment, suspended for 18 months"], "SentServe": ["Concurrent"], "WhatAncillary": ["180 hours unpaid work on a Think First Scheme, and 24 hours of supervision"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Don't know"], "VictimType": ["Don't Know"], "VicNum": ["Don't know"], "VicSex": ["Don't Know"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["data not available"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["sentence"], "AppealGround": ["Manifestly excessive"], "SentGuideWhich": ["section 189(4) of the Criminal Justice act 2003"], "AppealOutcome": ["allow this appeal, reducing the supervision period from 24 months to 18 months"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["As the operational period was 18 months, the supervision period of 24 months is too long and therefore unlawful."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
103
Section 1 of the Sexual Offences (Amendment) Act 1992 applies in the case of Chaplin. No matter relating to any complainants shall be included in any publication during their lifetimes if it is likely to lead members of the public to identify them as the persons against whom offences were committed. Neutral Citation Number: [2022] EWCA Crim 433 Case No: 202102210 A2 / 202002185 A4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT EXETER His Honour Judge Horton T20210018, S20210009 AND ON APPEAL FROM THE CROWN COURT AT IPSWICH His Honour Judge Levett S20200053, S202000093 Royal Courts of Justice Strand, London, WC2A 2LL Date: 31/03/2022 Before : LORD JUSTICE EDIS MR JUSTICE FRASER and HER HONOUR JUDGE DHIR QC - - - - - - - - - - - - - - - - - - - - - Between : REGINA - and - THOMAS PAUL CHALK Appellant And between : REGINA -and- ANDREW GEORGE CHAPLIN Applicant - - - - - - - - - - - - - - - - - - - - - Mr N Wraith appeared on behalf of the Appellant Ms S Wyeth appeared on behalf of the Applicant Mr A Johnson appeared on behalf of the Crown Hearing date: 4 February 2022 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely by circulation to the parties’ representatives by email and released to BAILII. The date and time for hand-down is deemed to be 10:00am on Thursday 31 st March 2022. Mr Justice Fraser : 1. This is the judgment of the court. The appeal (in the case of Thomas Chalk) and renewed application for leave to appeal (in the case of Andrew Chaplin) are both in relation to sentence. They have been listed together because they raise common technical issues relating to the lawfulness of what occurred at the respective Crown Courts. In particular, they both concern the lawfulness of rulings made by the judge when sitting as a District Judge pursuant to section 66 Courts Act 2003 , and the degree to which they affect the lawfulness of the sentences imposed. They both concern matters that had been committed for sentence to the Crown Court by the Magistrates’ Court, and certain steps taken in the Crown Court where the sentencing judge sat as a District Judge in the Magistrates’ Court under section 66 (to which we shall refer as sitting as a DJ(MC)). The two cases have no other connection. The appeal and the renewed application were heard together for that reason. 2. Neither the appellant nor the applicant raised the technical issues in question at the time, nor indeed when they submitted their respective Grounds of Appeal following their sentencing. However, these matters were noticed by the Registrar of Criminal Appeals when the papers were initially considered, and a note was sent to all the parties by the Registrar notifying them and inviting further submissions. These issues were therefore all addressed by all of the parties, including the respondent, but without any clear resolution to these technical issues emerging. 3. Particularly because of the rapidity with which matters are now being put to defendants in the Magistrates’ Court, technical issues such as those in these two cases (or broadly similar ones) may occur in future cases. As well as resolving the technical issues that arise in these cases, this judgment is also intended to focus the minds of those prosecutors who appear in the Crown Court in particular, so that they are aware of the need for vigilance, and technical accuracy, when such situations arise. 4. Although these two cases have been listed together, they each concern individuals and will receive entirely separate attention when we come to decide the appeal and the renewed application. They were both brought as challenges to the sentences on the basis that they are manifestly excessive, separate to the technical issues we have described. We shall refer to those seeking to appeal by their surnames in the body of this judgment; this is for brevity and does not mark a lack of respect. It also avoids the need to consider, when referring to such a person, whether they are, at that point, an appellant, an applicant, or a claimant in judicial review proceedings. 5. We should record that each of these two cases involve attempts to solve technical problems by sitting as a DJ(MC) under section 66 . No objections were made by either Chalk or Chaplin to this course of action at the time, and no prejudice was caused to either of them by what occurred. Indeed, Chalk did not attend the hearing of his appeal before us, and Mr Wraith explained to us that he was not engaging with his legal representatives on any aspect of his case, and was not providing any instructions. Regardless of this, we received assistance both from Mr Wraith and also from Ms Wyeth for Chaplin. 6. Finally by way of introduction, the parties have drawn our attention to a number of authorities and the prosecution have suggested a variety of different ways in which the technical issues could be addressed. We have considered them all but we only identify those within this judgment necessary properly to resolve the appeal and the application, and give such guidance as may be helpful in other cases going forwards. We do not address all of the different permutations or suggested solutions. The facts – the case of Thomas Chalk 7. On 6 August 2020 Chalk assaulted his former partner, Sherrie McBay, by punching her in the back outside a Tesco Express store in Paignton. He was arrested later the same day and became violent: spitting, threatening to break the windows of the police car that attended, shouting, screaming, using foul language and abusing and threatening the officers and also their families. He bit the hand of one of the officers, PC Smart, breaking the skin; he bit PC Smart’s leg; and he grabbed and squeezed PC Deveau’s leg in a painful manner. 8. Chalk, who was born in March 1988, had been diagnosed with ADHD as a child. For the pre-sentence report, he told the probation officer that his life had gone into a downwards spiral following the death of his mother about 11 years before, but several of his offences pre-dated that. He had committed his first offence in 2004, when he had received a warning. Since then, he had been convicted of 36 offences, including battery in 2005 and 2015, assault in 2009 and 2014, assault of a constable in 2017, two offences of assault of an emergency worker in 2020, using threatening, abusive or insulting words or behaviour with intent to cause fear or provocation of violence in 2015, 2016, 2017 and 2020, affray in 2015, possessing a knife in a public place in 2014 and possessing a firearm when prohibited in 2018. 9. Chalk had commenced an on-off relationship with Miss McBay in about 2011. At one stage, she had obtained a non-molestation order against him. In 2013 he committed three offences of breach of that order. She was also the victim of two assaults by Chalk in 2014, which resulted in a restraining order being made against him. Nevertheless, the relationship continued, on and off, until May 2020. 10. He was staying at her home on 13 January 2020 when he broke a window and was arrested, having assaulted two police officers and damaged his cell. On 6 March 2020 five suspended sentence orders were made for these offences. There were two orders with concurrent terms of 12 weeks’ imprisonment, suspended for 12 months, in respect of two offences of assault of an emergency worker. For two offences of criminal damage, there were two orders made, each with terms of 8 weeks’ imprisonment, also suspended for 12 months. These terms were concurrent with one another, but consecutive to the two 12-week terms. Finally, there was an order with a concurrent term of 6 weeks’ imprisonment for an offence of using threatening, abusive or insulting words or behaviour with intent to cause fear or provocation of violence. 11. Chalk breached the suspended sentence orders by failing to attend any appointments and he was fined for that breach on 14 September 2020. From 24 September to 6 November 2020 he was remanded in custody in connection with an unrelated prosecution, which was discontinued. 12. In respect of the instant offences, which were committed on 6 August 2020, Chalk appeared at Newton Abbott Magistrates’ Court on 14 January 2021. There were five charges in all. The assaults on police officers were charged as assault by beating of an emergency worker, contrary to section 39 of the Criminal Justice Act 1988 and section 1 of the Assaults on Emergency Workers (Offences) Act 2018 . The assault on Miss McBay was charged as assault by beating contrary to section 39 of the 1988 Act . He indicated that he would plead guilty to the charge of assaulting PC Deveau, but not guilty to the other charges. On the charge of assaulting PC Smart he was sent for trial to the Exeter Crown Court pursuant to section 51(1) and (2)(b) of the Crime and Disorder Act 1998 . On the charge of assaulting Miss McBay, he was sent for trial pursuant to section 51(3) of that Act . On the charge of assaulting PC Deveau, he was committed for sentence pursuant to section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 . 13. Since the conviction took place after 1 December 2020, the reference should have been to section 14 of the Sentencing Act 2020 , rather than section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 , but that did not invalidate the committal. This is made clear in the case of R v Jex [2021] EWCA Crim 1708 at [24] to [36]. 14. Chalk appeared at a plea and trial preparation hearing before the Crown Court on 9 February 2021. By then, one of the five original charges was no longer pursued and there were four counts on the indictment, including a count in respect of the charge of assaulting PC Deveau. In relation to that count, counsel submitted that, because Chalk had not pleaded guilty in the Magistrates’ Court, but had only indicated a guilty plea, he should have been sent for trial, rather than committed for sentence. 15. That submission was incorrect as we explain in the section “The legal framework” below. 16. The judge was invited to exercise his powers as a DJ(MC). He accepted counsel’s submission and said as follows: “Right, well then, that is what I’ll do. I’ll correct the sending in relation to the allegation of 6 August, assaulting PC Deveau as an emergency worker, to a sending under section 51(1) and (2)(b) of the Crime and Disorder Act 1998 and therefore delete, as it were, the purported sending, or committal for sentence under section 3 , but obviously, it will be noted and kept in mind that, in relation to that matter, if Mr Chalk pleads guilty to it, then his credit will be the full one third.” 17. The plea and trial preparation hearing was adjourned to 19 February 2021. On 7 May 2021 he pleaded guilty to all three counts upon re-arraignment and a not guilty verdict was entered on the count that was not pursued. He was therefore sentenced on 28 June 2021 on the counts to which he had pleaded guilty on 7 May 2021, and the one count which had been sent to the Crown Court by the judge acting as a DJ(MC) relating to the assault upon PC Deveau as we have explained above. 18. The pre-sentence report stated that, at the time of these offences, his life was in chaos due to his drug use and homelessness. He had attitudes and beliefs which supported aggression and violence and he had developed animosity towards the police. On the other hand, there were signs that he was trying to move away from his previous lifestyle and behaviour. He had moved from Torquay to Exeter and had worked hard to obtain stable accommodation. He had regular contact with his 2 year old daughter and had resumed his relationship with her mother. Chalk wrote a letter to the judge in which he expressed his regret for what he had done and stressed his efforts to better himself and his future. 19. Prosecution counsel submitted that the assault on Miss McBay fell within category 3 in the offence-specific guideline then in force, with a starting point of a Band A fine and a range up to a Band C fine. There was no guideline then in force for the offence of assault of an emergency worker, but the judge noted that the maximum sentence was 12 months’ imprisonment, rather than the maximum of 26 weeks for the offence of common assault. 20. In passing sentence, the judge noted that the assault of Miss McBay was a case of domestic violence. He described Chalk’s conduct towards the officers as appalling, and the incident as prolonged and violent. He had regard to Chalk’s many previous convictions, to the contents of the pre-sentence report and to Chalk’s own letter. 21. The judge said that he gave a 20% discount for Chalk’s guilty pleas. He imposed a sentence of 12 weeks’ imprisonment for the assault on Miss McBay and sentences of 24 weeks’ imprisonment for each of the offences of assault of an emergency worker. He made those sentences concurrent with one another, but consecutive to the sentence for assault. He activated the suspended sentences, saying that the sentence would be reduced from 20 weeks to 18 weeks, which would be consecutive to the other sentences. That made a total of 54 weeks’ imprisonment. 22. The sentence for the assault of Miss McBay was equivalent to a sentence of 15 weeks’ imprisonment if Chalk had not pleaded guilty. The sentences for the offences of assaulting an emergency worker were equivalent to 30 weeks’ imprisonment if Chalk had not pleaded guilty. The judge did not indicate which of the suspended sentences he was reducing in order to achieve the overall total of 18 weeks which he activated. In effect, he treated the suspended sentences as one suspended sentence with a single term of 20 weeks, reduced down to 18 weeks. The facts – the case of Andrew Chaplin 23. Chaplin pleaded guilty to a number of different sexual offences that arose out of communications on a social messaging site between 30 January 2020 and 11 February 2020. Chaplin was already subject to a Sexual Harm Prevention Order (“SHPO”) which had been in place since 24 November 2017 following earlier offending. This imposed certain restrictions upon him, including the requirement to declare to the authorities his electronic devices. He was also prevented from using a chatroom. 24. In 2020 he began communication online on a social media site with a male who told Chaplin that he was 14 years of age. This communication was initiated by Chaplin. Unbeknown to Chaplin, this was an undercover police officer posing as a young male called ‘Ryan’. Such police officers are trained and authorised to take part in such undercover operations. An online profile is displayed and no contact is initiated by the officer. The officer will wait to be contacted by those interested in communicating, some of whom, regrettably, may turn out to be paedophiles with a sexual interest. Early in their communications ‘Ryan’ told Chaplin that he was only 14 years old. They sent messages to one another, and Chaplin sent an image of his own face and an image of a nude man sitting on the lavatory. 25. Communication then moved to WhatsApp. During this phase of the communication, Chaplin sent ‘Ryan’ a picture of his own erect penis, and later a movie clip of himself urinating and masturbating. ‘Ryan’ sent a consented image of a young male holding a phone up to partially obscure his face. A consented image is one that has been approved as not containing any illegal element, and such images are usually sufficiently interesting or attractive to paedophiles to continue their interest in the sender of such an image. Chaplin suggested having penetrative sex, and sent a further video clip of himself masturbating, and also a video of a third party adult male inserting a sex toy into his own anus. ‘Ryan’ sent a selfie style image of a male laying on his front under a Marvel patterned duvet. 26. Other illegal activity took place in terms of the content and nature of the messages sent to the officer by Chaplin, including express invitations for ‘Ryan’ to engage in penetrative activity with Chaplin, encouragement to send explicit photographs, further inquiries by Chaplin about his school friends, requests as to whether ‘Ryan’ used drugs, and generally illegal online sexual behaviour with someone of the age Chaplin believed ‘Ryan’ to be. On 6 February 2020 Chaplin discussed with ‘Ryan’ plans for the two of them to meet, and this was discussed again on 10 February 2020. A plan was made between the two of them to meet the following day at Christchurch Park in Ipswich. Chaplin sent a message that said “U going to fuck me r u” and sent four images of his shaved legs, groin and torso area. ‘Ryan’ sent Chaplin a selfie image of a male in a bathroom wearing a short sleeve school shirt with undone buttons. 27. On 11 February 2020 Chaplin travelled to Christchurch Park to meet ‘Ryan’ in accordance with this plan, where he was met by police officers who arrested him. He was found in possession of two phones, one of which had not been declared to the PPU, which was therefore in breach of the existing SHPO. His home was also searched which revealed a small quantity of cannabis, a controlled Class B drug. 28. This activity resulted in the subsequent charges brought against him following his arrest, namely: 1. Meeting a child following sexual grooming - contrary to section 15 of the Sexual Offences Act 2003 ; 2. Sexual communication with a child - contrary to section 15 A(1) and (3) of the Sexual Offences Act 2003 ; 3. Breach of a Sexual Harm Prevention Order (namely the possession of the mobile phone) – contrary to section 103 I(1) and (3) of the Sexual Offences Act 2003 ; 4. Possession of a controlled drug of Class B (cannabis) - contrary to section 5(2) of and Schedule 4 to the Misuse of Drugs Act 1971 ; 5. Breach of a Sexual Harm Prevention Order (namely entering and engaging in messages on chat rooms) – contrary to section 103 I(1) and (3) of the Sexual Offences Act 2003 ; 6. Attempting to cause a child aged under 16 to look at an image of sexual activity - contrary to section 1(1) of the Criminal Attempts Act 1981 . 29. A notice was served under section 23 A Prosecution of Offences Act 1985 that no proceedings would be continued against Chaplin for the breach of the terms of the SHPO that prevented him from entering and engaging in messages on chat rooms. 30. On 13 February 2020 he pleaded guilty to the charges in the Suffolk Magistrates’ Court, which was plainly the first opportunity. Indeed, it was only 48 hours after he had been arrested in the park. We were told by counsel for the respondent, Mr Johnson, that this type of very short interval before defendants appear in the Magistrates’ Court is becoming increasingly common. It may explain why the charges were framed in the way they were, which is the origin of the technical issues which we will explain. However, even where there is such a short interval, this is no excuse for the type of error that occurred in this case. On the facts of this case, Chaplin could not have met a child following sexual grooming, nor had sexual communication with a child, because no child was involved. 31. The Magistrates committed all five offences to the Crown Court for sentence under case number S20200053. The matter was listed for sentence at the Crown Court on 12 March 2020. 32. Shortly before the matter came to the Crown Court, it was realised that the two most serious charges of the five – namely those under section 15 and section 15 A of the Sexual Offences Act 2003 – had been incorrectly charged. Chaplin had neither met a child following sexual grooming, nor had he had sexual communication with a child. ‘Ryan’ was not a child; as an undercover police officer, he was an adult. The target of the activity by Chaplin was not an underage child, but an undercover police officer posing as one. 33. Chaplin had been guilty of attempting to commit each of these offences contrary to the Criminal Attempts Act 1981 . These two offences should not have been charged as substantive offences under each of section 15 and section 15 A of the Sexual Offences Act 2003 , as the elements of these choate offences were not supported by the facts of what had occurred. The conclusion that the two offences should have been charged as attempts was reached just before the date when the matter had been listed for sentence, namely 12 March 2020. After some days of consideration, on 19 March 2020 the two new charges were uploaded to the DCS. These two new charges were: 1. Attempting to meet a child following sexual grooming - contrary to section 1(1) of the Criminal Attempts Act 1981 ; 2. Attempting to have sexual communication with a child - contrary to section 1(1) of the Criminal Attempts Act 1981 . 34. The prosecution produced an undated document headed “Charges” which was uploaded to the DCS on 19 March 2020 under the title “Amended Charges for the Next Hearing.doc”. We shall refer to this as the “Amended Charges” document. It consisted of 4 numbered paragraphs. Each paragraph consisted of the particulars of each offence. Paragraph 1 now stated the matter was being charged as an attempt, contrary to section 1(1) of the Criminal Attempts Act 1981 , and in bold in brackets in the document stated: “(This is a substitution of charge 1 under section 15 of the Sexual Offences Act 2003 )”. 35. The same approach was adopted in respect of paragraph 2. Paragraph 3 charged the drug possession charge, with the words “(as per original charge sheet)” following it, and paragraph 4 charged the breach of the SHPO, with the entry “(as per charge 4 of the original charge sheet)” following. The original charge 4, namely that as set out at [28] above, was the drug possession charge as it happens, and the breach of the SHPO (possession of the undisclosed mobile phone) was original charge 3, but nothing turns on that. There was no reference in this document to the charge of attempting to cause a child aged under 16 to look at an image of sexual activity, contrary to section 1(1) of the Criminal Attempts Act 1981 , which is one of the original charges set out at [28] above. 36. The Amended Charges document was uploaded to the “Applications” section of the DCS on 19 March 2021. 37. The sentencing judge was the same judge who had imposed the SHPO upon Chaplin in 2017 for similar offences. The 2017 offending had concerned a 13 year old boy, whose father discovered (from looking at his son’s Facebook messages) that he had arranged to meet Chaplin. The father drove to the area where his son and Chaplin had arranged to meet, and discovered his son in the passenger seat of a car with Chaplin. He told his father “he wanted me to suck his dick dad, but I didn’t want to”. On 10 June 2017 Chaplin had pleaded guilty to two offences, one a breach of Sexual Offences Prevention Order (or SOPO) (which had been imposed for similar offences in February 2015), and the second of causing or inciting a male child under the age of 16 to engage in penetrative sex with an adult contrary to s.10(1) (a) Sexual Offences Act 2003 . Chaplin was sentenced on 24 November 2017 to 20 months imprisonment for this offence, with a term of imprisonment of 9 months concurrent for the breach of the SOPO. A SHPO was imposed. 38. Therefore the sentencing judge had direct prior dealings with Chaplin, having imposed these sentences himself in November 2017. A sentencing note was prepared for him by counsel for the prosecution (not Mr Johnson who appeared before us on this appeal and renewed application). This stated at paragraph 20 the following: “20.The defendant appeared at the magistrates’ court on the 13.02.20 and entered guilty pleas. At the hearing on the 16.03.20 both prosecution and defence counsel indicated that 2 of the charges should have been charged as attempts. The correct charges have been uploaded onto document Q2 and it is intended to request the Crown Court to utilise its power to sit as a District Judge in the Magistrates’ Court.” 39. The following therefore occurred on 26 March 2020. Counsel for both prosecution and for the defendant were agreed that the two original charges of meeting a child following sexual grooming (contrary to section 15 of the Sexual Offences Act 2003 ) and sexual communication with a child (contrary to section 15 A(1) and (3) of the Sexual Offences Act 2003 ) were incorrectly charged and should not have been brought. The sentencing judge said that these two original charges should be “withdrawn”. The judge was invited by the prosecution to sit as a DJ(MC) under s.66 . Acting in this way, he accepted two pleas of guilty to the two new charges (alleging attempts and set out at [33] above) and committed these two offences to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 under case number S20200093 . 40. The judge then sought to proceed to sentence on all the offences before the Crown Court, three of the original five (which had been originally committed to the Crown Court by the Magistrates’ Court) and the two newly charged attempts (committed to the Crown Court by the sentencing judge sitting as a DJ(MC)). Chaplin was appearing by video link, visible to the judge. All counsel were appearing by telephone. Chaplin, who maintained he had mental health issues, became increasingly distressed and wished to leave. The judge therefore took the decision to adjourn the sentencing hearing part way through. 41. Further hearings were listed for sentence on 1 June 2020 and 15 June 2020, but these were not effective for a number of reasons, including absence of Chaplin. Eventually, the sentencing hearing took place on 27 July 2020 in his absence. 42. The sentencing judge pointed out that Chaplin had refused to engage with the probation service when a pre-sentence report had been ordered, and also that it was accepted that any mental condition or medical issues from which he was suffering were not linked to this particular offending. He explained that he considered the sexual behaviour to young boys by Chaplin to be entrenched and devoid of any self-control, and that his previous offending had consisted of sexual activity with a 15 year old friend of his son in 2015, and similar behaviour with a 13 year old boy in 2017. He observed that the current offending demonstrated that Chaplin refused to comply with licence conditions or the terms of the orders designed to protect the public, particularly young boys, namely the SOPO and SHPO. 43. He found Chaplin to pose a high risk of causing serious sexual harm to male children, and found him to be dangerous. He found that an extended sentence was necessary to protect the public from harm in the future. He characterised count 1 as Category A in terms of harm culpability, which has a starting point of 4 years with a range of 3 to 7 years for person of good character. He adjusted that for the aggravating factors present, in particular the entrenched recidivist behaviour and the failure to comply with previous orders. He arrived at a sentence of 6 ½ years for the completed offence, reduced it to 6 years as it was an attempt and not a completed offence, and then reduced it for Chaplin’s plea downwards to 4 years. He also expressly considered totality. 44. He therefore sentenced Chaplin to the following on each count: 1. Attempting to meet a child following sexual grooming - contrary to section 1(1) of the Criminal Attempts Act 1981 . An extended sentence of 12 years, namely a custodial element of 4 years and an extended licence period of 8 years. 2. Attempting to have sexual communication with a child - contrary to section 1(1) of the Criminal Attempts Act 1981 . 14 months imprisonment to be served concurrently to the sentence on count 1. 3. Possession of a controlled drug of Class B (cannabis) - contrary to section 5(2) of and Schedule 4 to the Misuse of Drugs Act 1971 . 28 days imprisonment to be served concurrently to the sentence on count 1. 4. Breach of a Sexual Harm Prevention Order (namely the possession of the mobile phone) – contrary to section 103 I(1) and (3) of the Sexual Offences Act 2003 . 16 months imprisonment to be served concurrently to the sentence on count 1. 5. Attempting to cause a child aged under 16 to look at an image of sexual activity - contrary to section 1(1) of the Criminal Attempts Act 1981 . 2 years imprisonment to be served concurrently to the sentence on count 1. 45. Consequential other orders were also made in terms of imposition of a further SHPO, imposition of the victim surcharge, and restrictions under the Safeguarding Vulnerable Groups Act and the Debarring and Disclosure Service. 46. An appeal was promptly lodged including a ground that the sentence on count 1 exceeded the maximum sentence of 10 years’ imprisonment for the offence of offence under section 15 of the Sexual Offences Act 2003 . The sentence passed was indeed in excess of that, as it was a total sentence of 12 years. The Registrar of Criminal Appeals brought this to the attention of the sentencing judge, together with the fact that the court was still within time to have the benefit of the period available to vary or rescind a sentence. This is now contained in section 385 of the Sentencing Act 2020 , but at the time the relevant statutory provision was section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 as amended. The 56 day period to vary or rescind a sentence is the same under both provisions. 47. Accordingly, the judge realised that he had passed a sentence that exceeded the statutory maximum, and exercised the powers available under this provision to reduce the sentence on that first offence. He did that on 18 September 2020 and varied the sentence for that offence, so that the custodial element remained at 4 years but the extended licence period became 6 years, thus equating to an overall sentence of 10 years. This was within the statutory maximum sentence available for the substantive choate offence, and not in excess of it. 48. The technical difficulty in this case is as follows. The original five charges with reference S202000053 were all validly before the Crown Court, having been committed to the Crown Court for sentence entirely correctly by the Magistrates’ Court. The Magistrates’ Court was therefore functus officio in respect of these offences and could take no further steps. No sentence had been passed upon the two offences under section 15 and 15A to which Chaplin pleaded guilty before the Magistrates and which were then sent to the Crown Court for sentence. No sentences were passed in respect of these offences; the sentencing judge merely stated that these were to be “withdrawn”. The legal framework 49. We do of course bear in mind the overriding objective in Criminal Procedural Rules 2020 rr.1.1 to rr.1.3. However, there is a limit to the ability of the court to rely upon or apply these in dealing with issues of jurisdiction. The Divisional Court in Hubner v District Court of Prostejov, Czech Republic [2009] EWHC 2929 (Admin) stated at [7] (per Elias LJ) that the over-riding objective could not affect the interpretation of substantive law or regulate the manner in which principles of law must be interpreted or construed. If something was done without jurisdiction, there is no mechanism available under the Criminal Procedural Rules to remedy this. 50. Section 66 of the Courts Act 2003 permits holders of judicial office to act as DJ(MC) and gives them the same powers – but only the same powers – as they would have acting in the Magistrates’ Court when they do so. 51. The section states: "66 Judges having powers of District Judges (Magistrates' Courts) (1) Every holder of a judicial office specified in subsection (2) has the powers of a justice of the peace who is a District Judge (Magistrates' Courts) in relation to– (a) criminal causes and matters [a repealed provision which formerly extended scope to family proceedings] (2) The offices are– (a) judge of the High Court; (aa) Master of the Rolls; (ab) ordinary judge of the Court of Appeal; (ac) Senior President of Tribunals; (b) deputy judge of the High Court; (c) Circuit judge; (d) deputy Circuit judge; (e) recorder; [(f) – (o) then continues the list, these having been added by paragraph 4 of Schedule 14 to the Crime and Courts Act 2013 , which appears in Part 2 of that Schedule.] (7) This section does not give a person any powers that a District Judge (Magistrates' Courts) may have to act in a court or tribunal that is not a magistrates' court." 52. In R v Gould [2021] EWCA Crim 447 the Court of Appeal considered the extent to which Crown Court judges could use the powers of a DJ(MC) to regularise or correct serious failures by the prosecution in charging criminal offences. It was made clear that the different jurisdictional limits of the different courts, which are set down in primary legislation, must be respected. That case contains a more detailed analysis of the statutory provisions, which are set out extensively in R v Gould at [9] to [13]. 53. That case also explains the following at [80]: “[80] These important parameters within which the section 66 powers may be used have been overlooked in some of the present cases and perhaps elsewhere. It is worth restating them:- i) When the Magistrates' Court makes an order which gives jurisdiction in the case to the Crown Court, whether by committal for sentence or sending for trial, that is the end of their jurisdiction in the case. In technical language they are functus officio. The Crown Court judge cannot use section 66 to make any order which the Magistrates' Court could no longer make. ii) There is no power in the Crown Court to quash an irregular order. Where it is plainly bad on its face, the Crown Court may hold that nothing has occurred which is capable of conferring any jurisdiction to deal with it. We shall return to these points. We appreciate that this consequence of the decision in R. v. Sheffield Crown Court limits the power under section 66 to correct errors in committals for sentence, but it is unavoidable. If quashing is required this can only be done by a Divisional Court. We have held above that it is open to the judge in the Crown Court, as a DJ(MC), to lay and commit a new charge in the correct form. The relevant Rules Committees should consider whether an expedited and summary procedure could be adopted for the quashing by consent of unlawful committals and sendings which have been overtaken by events.” (emphasis added) 54. The power of the Magistrates’ Court substantially derives from the Magistrates’ Court Act 1980 (“ MCA 1980 ”). Two sections are reproduced here for convenience. Section 17A states (showing amendments such as to the Sentencing Code in section 17A(4)(b) that are currently in force and have been added): “17A Initial procedure: accused to indicate intention as to plea. (1) This section shall have effect where a person who has attained the age of 18 years appears or is brought before a magistrates’ court on an information charging him with an offence triable either way. (2) Everything that the court is required to do under the following provisions of this section must be done with the accused present in court. (3) The court shall cause the charge to be written down, if this has not already been done, and to be read to the accused. (4) The court shall then explain to the accused in ordinary language that he may indicate whether (if the offence were to proceed to trial) he would plead guilty or not guilty, and that if he indicates that he would plead guilty— (a) the court must proceed as mentioned in subsection (6) below; and (b) he may (unless section 17D(2) below were to apply) be committed for sentence to the Crown Court under section 14 or (if applicable) 15 of the Sentencing Code if the court is of such opinion as is mentioned in sub section (1 )(b) of the applicable section. (5) The court shall then ask the accused whether (if the offence were to proceed to trial) he would plead guilty or not guilty. (6) If the accused indicates that he would plead guilty the court shall proceed as if— (a) the proceedings constituted from the beginning the summary trial of the information; and (b) section 9(1) above was complied with and he pleaded guilty under it. (7) If the accused indicates that he would plead not guilty section 18(1) below shall apply. (8) If the accused in fact fails to indicate how he would plead, for the purposes of this section and section 18(1) below he shall be taken to indicate that he would plead not guilty. (9) Subject to subsection (6) above, the following shall not for any purpose be taken to constitute the taking of a plea— (a) asking the accused under this section whether (if the offence were to proceed to trial) he would plead guilty or not guilty; (b) an indication by the accused under this section of how he would plead”. 55. In the Respondent’s Notice, the court’s powers under s.142 of the MCA 1980 were brought to our attention. Section 142 states: “(1) A magistrates’ court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so; and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make. (1A) The power conferred on a magistrates’ court by sub section (1 ) above shall not be exercisable in relation to any sentence or order imposed or made by it when dealing with an offender if— (a) the Crown Court has determined an appeal against— (i) that sentence or order; (ii) the conviction in respect of which that sentence or order was imposed or made; or (iii) any other sentence or order imposed or made by the magistrates’ court when dealing with the offender in respect of that conviction (including a sentence or order replaced by that sentence or order); or (b) the High Court has determined a case stated for the opinion of that court on any question arising in any proceeding leading to or resulting from the imposition or making of the sentence or order. (2) Where a person is convicted by a magistrates’ court and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may, so direct.” 56. Blackstone’ Criminal Practice (Oxford UP: 2022) makes clear (D22.73) that this “enables an accused who was convicted in a magistrates’ court (whether as a result of a guilty plea or of a finding of guilty after a trial) to ask the magistrates to set the conviction aside.” Therefore the fact that Chaplin had pleaded guilty, rather than having been found guilty after a trial, does not mean that the power under this section was not available. However, it does not assist in this scenario because there was no sentence or other order imposed upon Chaplin which was sought to be varied. The only order the Magistrates made – which was entirely valid – was that committing him to the Crown Court for sentence. The effect of this order was to deprive the Magistrates of any further jurisdiction in the case, see above. 57. So far as Chalk is concerned, the provisions of section 51 of the Crime and Disorder Act 1998 are relevant because that was the power that the sentencing judge sought to invoke in acting as a DJ(MC) and sending the matter to the Crown Court. That section states (in part only): “ 51. Sending cases to the Crown Court: adults (1) Where an adult appears or is brought before a magistrates' court (“the court”) charged with an offence and any of the conditions mentioned in subsection (2) below is satisfied, the court shall send him forthwith to the Crown Court for trial for the offence. (2) Those conditions are— (a) that the offence is an offence triable only on indictment other than one in respect of which notice has been given under section 51 B or 51C below; (b) that the offence is an either-way offence and the court is required under section 20(9)(b), 21, 22A(2)(b), 23(4)(b) or (5) or 25(2D) of the Magistrates' Courts Act 1980 to proceed in relation to the offence in accordance with sub section (1 ) above; (c) that notice is given to the court under section 51 B or 51C below in respect of the offence. (3) Where the court sends an adult for trial under sub section (1 ) above, it shall at the same time send him to the Crown Court for trial for any either-way or summary offence with which he is charged and which— (a) (if it is an either-way offence) appears to the court to be related to the offence mentioned in sub section (1 ) above; or (b) (if it is a summary offence) appears to the court to be related to the offence mentioned in sub section (1 ) above or to the either-way offence, and which fulfils the requisite condition (as defined in sub section (1 1) below). (4) Where an adult who has been sent for trial under sub section (1 ) above subsequently appears or is brought before a magistrates' court charged with an either-way or summary offence which— (a) appears to the court to be related to the offence mentioned in sub section (1 ) above; and (b) (in the case of a summary offence) fulfils the requisite condition, the court may send him forthwith to the Crown Court for trial for the either-way or summary offence.” 58. It can be seen (relevant in the case of Chalk) that by use of the phrase “ the court shall send him forthwith to the Crown Court” , the section is dealing with the powers of the Magistrates’ Court. If the case is not before the Magistrates, or if the Magistrates no longer have jurisdiction to deal with it, then the Magistrates cannot use this power to send matters to the Crown Court. The same applies to a judge of the Crown Court who is seeking to act as a DJ(MC). He or she can only make an order if the Magistrates’ Court could do so. 59. The relevant power to be considered in the case of Chaplin is that of the court to permit a defendant to change their plea from one of guilty, to a plea of not guilty. This is a power that does not originate in statute, but rather the common law. This is a discretion; S v Recorder of Manchester [1971] AC 481 , which the passage in Blackstones describes thus: “The existence of the discretion was indirectly confirmed by the House of Lords in S v Recorder of Manchester [1971] AC 481 , when it held that, in the context of change of plea , there is no conviction until sentence has been passed, and therefore magistrates (like the Crown Court) can allow a change to not guilty provided they have not yet passed sentence.” (emphasis added) 60. The procedure for such an application is set out in Criminal Procedure Rules 25.5. Rule 25.5(2) requires it to be made in writing as soon as practicable after becoming aware of the grounds for doing so, and at (a)(ii) “in any event, before the final disposal of the case, by sentence or otherwise”. We are of the view that the term “by sentence” must relate to sentence on the count or offence in respect of which the guilty plea is sought to be vacated. Until a defendant is sentenced on that particular count, the court retains the power to allow that defendant to change their plea on that count. 61. R v Gould considered this Part of the Criminal Procedure Rules at [110] to [112] and concluded that the need for a written application to vacate a guilty plea was a mandatory requirement. The court also stated that the court had the power to direct that a guilty plea be vacated, even against the wishes of the person who entered it (although it was accepted that would be highly unusual and only in an extraordinary case). This makes clear that a guilty plea can be vacated at the instigation of the prosecution or even of the court. 62. Finally, given when Chaplin was charged with the two attempts on 26 March 2020 he had already pleaded guilty to the two substantive offences under s.15 and s.15 A Sexual Offences Act – and was merely awaiting sentence for these in the Crown Court, where these offences had been lawfully committed for that purpose – he would have been entitled to have raised the plea of autrefois convict when these two new offences (the attempts) were put to him by the judge sitting as a DJ(MC). However, this plea, together with those of autrefois acquit and pardon, operate as what are called pleas-in-bar. This means that, if they are upheld, these pleas bar any further proceedings. This is a procedural mechanism that acts as a safeguard against a defendant being repeatedly prosecuted, or prosecuted more than once. They do not, in law, extinguish the underlying offence, or mean that the court has no jurisdiction in respect of matters arising out of the same facts as those related to the underlying offence for which a conviction already exists. 63. There is extensive case law concerning the precise circumstances in which such pleas-in-bar can be relied upon, and what exactly qualify as findings that can form the basis of such pleas. It is not necessary to consider them in any detail here. All we would observe is that the availability to Chaplin of such pleas on the two attempt charges does not, of itself, invalidate the bringing of those new charges against him, or mean that this was done without jurisdiction. 64. Two cases were cited to us which it was said did invalidate the bringing of two charges of attempting to commit the s.15 and s.15 A offence, when convictions were in place for the substantive offences themselves. These were R v Manchester Crown Court ex parte Hill (1985) 149 JP 257, a decision of the Divisional Court, and the far more recent decision of this court in R v Jessemey [2021] EWCA Crim 175 . In ex parte Hill , the Divisional Court found that on an appeal against conviction for a full offence (in that case making off without payment contrary to s.3(1) of the Theft Act 1978 ) to the Crown Court from the Magistrates’ Court, the Crown Court could not on that appeal acquit the defendant of the offence but find him guilty of an attempt and convict under s.1(1) of the Criminal Attempts Act. It was held that there was no power to substitute an alternative charge for that which appeared in the information before the court. The justices themselves could not have done so, and therefore the Crown Court could not on appeal either, as the powers of the Crown Court in dealing with an appeal against conviction were the same as those of the justices at the summary trial. 65. In Jessemey , William Davis J (as he then was) considered an appeal against sentence, which concerned a similar offence to those brought against Chaplin, namely attempting to incite a child under the age of 13 to engage in non-penetrative sexual activity and to engage in sexual communication with a child. The “child” in question was thought by the appellant to be a 12 year old girl, but was in fact an undercover police officer. The following is explained: “[7] In June 2020 the appellant was sent a postal requisition. It contained a single charge of attempting to engage in sexual communication with a child. The substantive offence is set out in section 15 A of the Sexual Offences Act 2003 . It is an either way offence with a maximum sentence of 2 years' imprisonment. [8] On 11 August 2020 the appellant appeared at the Oxford Magistrates' Court. This was his first appearance in answer to the postal requisition. At court the prosecution preferred a second charge, namely the charge in respect of which the appellant eventually was sentenced. The underlying substantive offence in relation to that charge (namely section 8 of the Sexual Offences Act 2003 ) also is an either way offence. Where the activity alleged is non-penetrative the maximum sentence is 14 years' imprisonment. Although particularised as an attempt to commit the offence - as it had to be since there was no child to incite - the offence was described on the court record as being contrary to section 8 of the Sexual Offences Act 2003 rather than section 1 of the Criminal Attempts Act 1981 . [9] This is the first procedural issue which we must address. Rebecca Saillet was concerned that the statement of the offence being in those terms might have affected the lawfulness or validity of the charge. We are satisfied that it did not. Anyone charged with a substantive offence can be convicted in the alternative on an attempt to commit the offence. It must follow that a misdescription of the statutory basis of the charge of the kind that occurred in this case will be of no substantive consequence.” (emphasis added by underlining; italics present in original) 66. We are satisfied that there is no inconsistency between these two cases. They deal with different issues. Ex p. Hill concerns the powers of the Crown Court on hearing an appeal against conviction after a summary trial before Magistrates. The Crown Court has no power to substitute a conviction for some offence other than that on which the Magistrates had convicted, even where that other offence was an attempt to commit the substantive offence when the Magistrates had convicted of the full offence. Jessemy decided that a charge is not rendered bad in law where it alleges an attempt but cites the statute creating the substantive offence, rather than the Criminal Attempts Act 1981 as the offence creating provision. The reasoning in support of that proposition may require further thought if a case ever arises where the point falls for decision. It is not clear where the very broad proposition that “Anyone charged with a substantive offence can be convicted in the alternative on an attempt to commit the offence” originates. It cannot be section 6 of the Criminal Law Act 1967 because that relates only to the power of a jury to return verdicts of guilty to lesser offences where they acquit of a more serious offence on an indictment. No jury was involved in Jessemey which concerned a committal for sentence in an either way offence following a guilty plea. The position is not the same in summary proceedings as it is where there is an indictment. However, there is no reason to doubt the actual decision in Jessemey which is that a clearly drafted charge of an attempt is not vitiated by the citing of the provision which created the substantive offence as opposed to the Criminal Attempts Act 1981 . The better modern practice suggests that both statutes should be cited in the charge or count, see R v Reed [2021] EWCA Crim 572 . 67. In any event, the fact that in the Crown Court someone being tried for a substantive offence can be convicted, in the alternative, of an attempt, with there being no corresponding power in the Magistrates’ Court (or the Crown Court on appeal from the Magistrates’ Court) unless the attempt is separately charged, does not impact upon our analysis in this case of Chaplin. 68. In the case of Chaplin, the Magistrates’ Court did nothing wrong, and the errors flowed from the prosecution charging Chaplin with two substantive offences under s.15 and s.15 A of the Sexual Offences Act 2003 , when it was impossible for him to have committed these, given the involvement of the undercover police officer. Chaplin himself pleaded guilty to these, and all five were validly committed to the Crown Court for sentence. Applying the ratio of Gould set out at [53] above, the Magistrates’ Court was thereafter functus officio in respect of those five charges. 69. When it was realised that two new charges were required to charge Chaplin with attempts, rather than the substantive offences (to which he had already pleaded guilty) the judge acted correctly in sitting as a DJ(MC), taking pleas and sending these offences to the Crown Court for sentence. The possible availability to Chaplin of the pleas-in-bar of autrefois convict on the two new counts does not impact upon the jurisdiction of the court to do that. 70. All that remains is for the two pleas of guilty for the substantive offences under s.15 and s.15 A to be vacated. There was no factual basis for these charges to have been brought against Chaplin, and even though he pleaded guilty to them both, this should not have occurred. Vacating these two pleas can be done by the Crown Court, as the matter was correctly committed to the Crown Court for sentence and is therefore no longer before the Magistrates’ Court. We waive the requirement for a written request under Crim PR 25.5(2). Vacating these pleas cannot be done by the Court of Appeal. The court has therefore nominated Fraser J to sit as a judge of the Crown Court in this respect in order to do this. Nothing further is required in this respect because Chaplin was never sentenced by the court for either of the two offences in question, matters proceeding on the two attempts as we have explained. The effect of doing so means that Chaplin will no longer have pleaded guilty to these two offences, which were committed to the Crown Court for sentence and in respect of which no sentences were passed. They will be remitted to the Magistrates. The respondent has undertaken to issue to the Magistrates’ Court a notice of discontinuance, pursuant to section 23 of the Prosecution of Offences Act 1985 , in respect of both offences. 71. Turning to Chalk, five offences were sent to the Crown Court by the Magistrates’ Court. As we have explained, four of these were sent to the Crown Court for trial, and one was sent for sentence, namely assault by beating an emergency worker, in this case PC Deveau. That is because Chalk had indicated that he intended to plead guilty to this offence. One of the four counts sent for trial was discontinued, and Chalk pleaded guilty to the remaining three of them on re-arraignment in the Crown Court. Everything that transpired on those three was valid and lawful, as were the sentences passed upon them. 72. However, the sentencing judge on 9 February 2021 was told that the count relating to PC Deveau had not been lawfully committed to the Crown Court for sentence. He was told that this was because there had been no plea entered in the Magistrates’ Court. For this reason that count had appeared on the trial indictment. There had also been the recording error that we have explained at [13] above on the memorandum of sending. 73. In fact, this is not what had occurred in the Magistrates’ Court. The prosecution has explained in the Respondent’s Notice before us that “neither party understood the legal effect of what had occurred in the Magistrates’ Court”. Chalk had indicated a plea of guilty to this count in which case section 17 A(6) of the Magistrates’ Court Act 1980 means it was validly before the Crown Court. The matter was lawfully committed to the Crown Court for sentence. The Magistrates’ Court was therefore functus officio , the matter was before the Crown Court for sentence and it was validly before the judge who was sitting in the Crown Court. 74. This means that the sentencing judge had no power to act as a DJ(MC) under s.66 of the Courts Act 2003 . He was encouraged to act as such by the prosecution, who invited him to do so to send the charge relating to PC Deveau to the Crown Court under section 51(1) and (2)(b) of the Crime Disorder Act 1998 . Having been so invited, the judge did so. He explained that in practical terms it would “be noted and kept in mind that, in relation to that matter, if Mr Chalk pleads guilty to it, then his credit will be the full one third”. 75. However, what the sentencing judge had been told was wrong. The committal for sentence had in fact been lawful. This means that the count relating to the assault by beating of PC Deveau was validly before the Crown Court for sentence. The sentencing judge’s use of s.66 , by purporting to correct the situation by sitting as a DJ(MC), was without jurisdiction and the steps taken thereafter in respect of this offence were unlawful. This was incorrect and this is conceded by the prosecution. Having taken the various procedural steps he did, he passed a sentence of 24 weeks imprisonment for that offence, but concurrently with the sentences on the other counts. That sentence for that specific offence was unlawful, as what he purported to do as a DJ(MC) was without jurisdiction. 76. Accordingly, we sit as a Divisional Court. We will give leave to bring judicial review proceedings to quash what the sentencing judge did in relation to that offence acting as a DJ(MC), as it was unlawful. All procedural requirements are dispensed with and we make that quashing order. The effect of this is that the sentence of 24 weeks on that count is also quashed, as it was an unlawful sentence. The original charge, validly committed to the Crown Court for sentence, remains to be sentenced by the Crown Court. 77. We are of the view that, given the sentence was ordered to run concurrently with the sentences on the other counts, and given Chalk has now been released having served that term of imprisonment, the interests of justice do not require him to be subject to a separate sentence for that offence. Accordingly, we nominate Fraser J to sit as a judge in the Crown Court, and no separate penalty is imposed for this offence. 78. The sentencing judge in Chalk was also faced with activating a Suspended Sentence Order. That was activated by the sentencing judge, with the operative period of 20 weeks being reduced to 18 weeks. However, the SSO that had been imposed was itself made up of 2 sentences of 12 weeks’ imprisonment concurrent to one another (both suspended for 12 months) and 2 sentences of 8 weeks’ imprisonment, concurrent to one another but consecutive to the two sentences of 12 weeks (also suspended for 12 months). We have referred to details of these at [10] above. The activation did not make clear which sentences were being reduced to arrive at the period of imprisonment of 18 weeks. Clarification is therefore required in this respect. 79. We turn therefore to the submissions that the sentences in fact passed upon each of Chalk and Chaplin were manifestly excessive. The substantive appeal in Chalk 80. This is brought with the leave of the single judge. There are three grounds of appeal. These are that the starting points adopted by the judge were too high; that there was insufficient regard had to the principle of totality; and that there was insufficient regard to the personal mitigation available to Chalk. 81. We start by recording the aggravating factors of the assault against Miss McBay. Chalk had committed a number of different offences of violence against her, amongst his previous convictions which number 36 different offences. Not only had she previously obtained a non-molestation order against him, but in 2013 he committed three separate breaches of that order, and he assaulted her twice in 2014, leading to a restraining order. Offences committed within the context of a relationship are not lessened in their seriousness by their regularity, or by the fact that the relationship may continue. Indeed, they are more serious as a result. 82. Victims of domestic violence and abuse suffer in everyday life, and in the location where people are entitled to feel most safe, namely at home, or doing normal everyday tasks such as going about their daily affairs in the company of their partner. 83. Another group of people in society who are entitled to go about their daily affairs without having violence inflicted upon them are emergency workers, in this case police officers. Their job is to protect members of the public and investigate crime. The two officers involved in this case were assaulted; subjected to shouting and screaming; had foul language used against them; and were abused and threatened. This also included abuse and threats towards their families. One of the officers was bitten on the hand, and also the leg. The other officer had his leg grabbed and squeezed. 84. Nor are these isolated occurrences. These offences took place on 6 August 2020 but Chalk was actually serving suspended sentences at the time, imposed on him in March 2020, five months earlier. Those sentences were for very similar offences which had occurred in January 2020, when he broke a window at Miss McBay’s home, and assaulted two police officers who came to arrest him. He also then damaged the cell into which he was placed at the police station. As noted by the sentencing judge, these offences were entirely consistent with the pattern of his offending over the years, and the suspended sentences passed on him earlier in 2020 seem to have had absolutely no impact upon his offending at all. 85. There is little doubt that Chalk’s behaviour went somewhat downhill since his mother died 11 years ago, but a very large proportion of the population suffer family bereavements, and this is not an excuse for the prolonged offending, including the numerous offences committed since 2015. 86. We are entirely satisfied that the sentences passed by the judge adopted the correct starting points, taking into account all of the relevant factors of the offending, also took proper account of totality, and fully considered the personal mitigation available to Chalk. The resulting sentences were not manifestly excessive. 87. There is one respect in which an order of this court is required. Clarification is required in terms of which of the sentences that had been suspended, but were being activated, were reduced in order to achieve the overall total of 18 weeks. We have concluded that the correct order in all the circumstances is to activate each of the four suspended sentences (two orders with concurrent terms of 12 weeks’ imprisonment for offences of assault of an emergency worker, and two orders of 8 weeks’ imprisonment for two offences of criminal damage) but reduced by one week each, thus reducing the overall total by 2 weeks from 20 weeks to 18 weeks’ imprisonment. That 18 weeks’ imprisonment is to remain consecutive to the period of imprisonment of 36 weeks’ imprisonment on the offences, the subject of the instant appeal, that were committed on 6 August 2020. 88. We have already dealt with the fifth offence of assault by beating an emergency worker in respect of what occurred to PC Deveau. No separate penalty is imposed for that offence for the reasons we have explained above at [77] above. The renewal of the application to appeal in Chaplin 89. The grounds are three-fold. They were that the court was wrong in principle to refuse to adjourn the sentencing hearing for a psychiatric report to be prepared; that the court imposed a manifestly excessive sentence as the starting point was too high for the lead offence; and the court gave insufficient weight to Chaplin’s case, alternatively failed to give sufficient weight to the fact the offences were attempts and that the victim was a police officer and not a real child. 90. In refusing permission to appeal, the single judge said: “1. Your first ground of appeal concerns the judge’s decision to sentence in the absence of a psychiatric report and to decline to adjourn sentencing on 27 July for that purpose. I accept that psychiatric evidence of a mental disorder may provide grounds for mitigation in accordance with the sentencing guidelines for your s.15 offence (“mental disorder … particularly where linked to the commission of the offence”) and more generally (see the decision in R v PS [2019] EWCA Crim 2286 ). 2. However, the judge recorded in his sentencing remarks that it was “accepted that any current medical or mental issues that the defendant has were not linked to the particular offences for which he’s being convicted on his own plea of guilty”. Whilst current mental issues could be taken into account on sentence in relation to the impact of custody, this would only be “in a limited way”: see R v PS paragraph [9]. 3. In my view, the judge’s decision to proceed to sentence in the absence of a psychiatric report involved no arguable error of principle, and was well within the ambit of his discretion, in the context of: (i) the background described below; (ii) the fact that the judge had a detailed pre- sentence report on the issue of dangerousness (based principally on an earlier pre-sentence report), which included reference to your history of anxiety and depression; and (iii) the potential for only a limited impact of any psychiatric issues in the context of the impact of custody. 4. That background, as reflected in the comments recorded on the DCS, was that: (a) On 25 February 2020, the judge was told that the report would be served by 6 April 2020. (b) On 28 May, the judge was told that the report “could be served by the end of June”. (c) At this point, sentence had previously been listed for sentence on two previous occasions. (d) On 1 June 2020, the judge adjourned sentencing to 15 June, stating that the court was to be informed as to what happening in relation to the report, with the defence to inform the court as to its relevance for sentencing. It does not appear that the defence provided any relevant information in response to this direction. (e) On 15 June, sentencing was further adjourned to 27 July, with the court directing that the psychiatrist’s report be served by 20 July. No report was served. (f) On 24 July, the judge asked for an update and was then wrongly informed by the defence solicitors that a report “had been refused on two occasions”. (g) On 25 July, the judge summarised the history in a comment on the DCS, and indicated his intention to sentence on 27 July. 5. Your second ground of appeal is that the judge’s starting point of 6 years (in relation to the custodial term of your extended sentence), prior to reduction for your guilty plea, was manifestly excessive. I do not consider that this is arguable. The judge correctly treated the s 15 offence (attempting to meet a child following sexual grooming) as the lead offence, and his sentence for that offence took into account the other offending to which you had pleaded guilty. It is not arguable that the judge erred in categorising the s.15 offence as “Category 1” (starting point 4 years, range 3- 7 years) in view of the exchange of sexual images and the intention to commit penetrative sexual acts. In view of your prior offending, and the overall criminality for which the judge was sentencing you, a custodial term of 4 years (after credit for plea) was within the sentencing guidelines and well within the scope of the judge’s discretion on sentence. 6. Your third ground of appeal concerns other mitigating factors: in particular (i) that your s.15 and related offences only involved an attempt (because the intended victim was an undercover police officer); (ii) the impact of Covid-19 on prisoners, particularly yourself; and (iii) your mental health condition of anxiety and depression. The judge was, however, well aware of all of these matters. Even taking them into account in your favour, a custodial term of 4 years is not arguably manifestly excessive in the circumstances of your case.” 91. We have nothing we can usefully add to those detailed views, with which we wholly agree. 92. We have already at [70] above explained that we vacate the two guilty pleas leading to the two convictions for the two substantive offences under s.15 and s.15 A of the Sexual Offences Act 2003 , to which Chaplin pleaded guilty at the Magistrates’ Court but which were never sentenced. This is done by one of our number sitting in the Crown Court as we have explained. No other order is necessary and given no sentences were ever passed on those two offences (which were replaced by the charges of attempts, which were sentenced), doing so has no effect upon the terms of imprisonment currently being served by Chaplin, or upon any of the other orders. 93. We refuse the renewed application for permission to appeal. Conclusion 94. Unlawful sentences cannot be permitted to remain in place undisturbed, and such errors should be avoided in the future. If sufficient care is taken when charges are drafted and put to defendants in the Magistrates’ Court, and accurately described and then explained (if necessary) in the Crown Court, then this type of scenario can be avoided. Speedy resolution of proceedings in the Magistrates’ Court is a laudable aim, but it cannot be at the expense of technical accuracy. Prosecutors in particular should be careful in proceeding correctly. The type of technical error that has occurred in these cases takes a great amount of court time and use of resources to correct.
{"ConvCourtName": ["CROWN COURT AT EXETER", "CROWN COURT AT IPSWICH", "Suffolk Magistrates’ Court", "Newton Abbott Magistrates’ Court"], "ConvictPleaDate": ["7 May 2021", "13 February 2020"], "ConvictOffence": ["assault by beating", "Attempting to meet a child following sexual grooming", "assault by beating of an emergency worker", "Attempting to cause a child aged under 16 to look at an image of sexual activit", "Breach of a Sexual Harm Prevention Order", "Attempting to have sexual communication with a child", "Possession of a controlled drug of Class B"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["he pleaded guilty to all three counts", "pleaded guilty"], "PleaPoint": ["the first opportunity", "upon re-arraignment"], "RemandDecision": ["remanded in custody"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["CROWN COURT AT EXETER", "CROWN COURT AT IPSWICH"], "Sentence": ["total of 54 weeks’ imprisonment"], "SentServe": ["concurrent with one another, but consecutive to the sentence for assault"], "WhatAncillary": ["Sexual Harm Prevention Order (“SHPO”)"], "OffSex": ["his"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["His home"], "OffMentalOffence": ["anxiety and depression", "ADHD"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["his former partner"], "VictimType": ["his former partner,"], "VicNum": ["his former partner,"], "VicSex": ["her"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["her home"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["undercover police officer", "communications on a social messaging site"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["high risk of causing serious sexual harm"], "AggFactSent": ["number of different offences", "incident as prolonged and violent.", "breaches of that order,", "prolonged offending", "convicted of 36 offences", "many previous convictions", "serving suspended sentences"], "MitFactSent": ["20% discount for Chalk’s guilty pleas", "regret", "stressed his efforts to better himself"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["both in relation to sentence"], "AppealGround": ["manifestly excessive,", "technical issues relating to the lawfulness of what occurred at the respective Crown Courts", "insufficient regard had to the principle of totality", "starting points adopted by the judge were too high", "insufficient regard to the personal mitigation"], "SentGuideWhich": ["Criminal Justice Act 1988", "Crime and Disorder Act 1998", "Powers of Criminal Courts (Sentencing) Act 2000.", "principle of totality", "Assaults on Emergency Workers (Offences) Act 2018", "Sexual Offences Act 2003", "Criminal Attempts Act 1981", "Misuse of Drugs Act 1971"], "AppealOutcome": ["refuse the renewed application for permission to appeal."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The resulting sentences were not manifestly excessive."]}
{"ConvCourtName": ["Suffolk Magistrates’ Court", "Crown Court At Ipswich", "Crown Court At Exeter", "Newton Abbott Magistrates’ Court"], "ConvictPleaDate": ["2020-02-13", "2021-05-07"], "ConvictOffence": ["Attempting to have sexual communication with a child", "Attempting to meet a child following sexual grooming", "Attempting to cause a child aged under 16 to look at an image of sexual activit", "Possession of a controlled drug of Class B", "Breach of a Sexual Harm Prevention Order", "assault by beating", "assault by beating of an emergency worker"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes", "Yes"], "PleaPoint": ["the first opportunity", "upon re-arraignment"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Ipswich", "Crown Court At Exeter"], "Sentence": ["total of 54 weeks’ imprisonment"], "SentServe": ["Combination"], "WhatAncillary": ["Sexual Harm Prevention Order (“SHPO”)"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Had mental health problems", "Learning/developmental"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1 of 1"], "VicSex": ["All Female"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Police evidence", "Digital"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["High risk of harm"], "AggFactSent": ["prolonged offending", "Offender already serving sentences", "breaches of that order,", "number of different offences", "many previous convictions", "incident as prolonged and violent.", "convicted of 36 offences"], "MitFactSent": ["20% discount for Chalk’s guilty pleas", "stressed his efforts to better himself", "regret"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["both in relation to sentence"], "AppealGround": ["insufficient regard to the personal mitigation", "starting points adopted by the judge were too high", "insufficient regard had to the principle of totality", "technical issues relating to the lawfulness of what occurred at the respective Crown Courts", "manifestly excessive,"], "SentGuideWhich": ["principle of totality", "Sexual Offences Act 2003", "Criminal Attempts Act 1981", "Misuse of Drugs Act 1971", "Criminal Justice Act 1988", "Assaults on Emergency Workers (Offences) Act 2018", "Crime and Disorder Act 1998", "Powers of Criminal Courts (Sentencing) Act 2000."], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The resulting sentences were not manifestly excessive."]}
419
Neutral Citation Number: [2016] EWCA Crim 850 Case No: 201504565/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 15th June 2016 B e f o r e : PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE HOLROYDE MRS JUSTICE MAY DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v JAMES STARK - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr S Reid appeared on behalf of the Appellant Mr G Gelbart appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. PRESIDENT OF THE QUEEN'S BENCH DIVISION: On 4th September 2015, in the Crown Court at Kingston-upon-Thames before Mr Recorder Purchas QC and a jury, this appellant, who is now aged 26 years, was convicted of inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861 . He was sentenced to 18 months' imprisonment for that offence. A co-accused was convicted of assault occasioning actual bodily harm and received a sentence of imprisonment of 6 months which was suspended for 18 months with other ancillary orders being made. 2. This appellant now appeals against conviction by limited leave of Sir John Royce. He also seeks to renew his application in respect of three other grounds and for leave to appeal against sentence. 3. The facts can be summarised quite shortly. From about 8.00 pm on 15th November 2014 Ryan Smith, the complainant, had been drinking at various locations including, finally, in the Teddington Arms public house. He accepted that he had drunk far too much and was indeed intoxicated. 4. The co-accused, Daniel Wilson, was also in the Teddington Arms with his pregnant girlfriend. At some stage during the evening there was an incident inside the public house involving the complainant, the co-accused and his girlfriend, after which the complainant was seen with a swelling over his left eye. This was not the subject of an allegation of crime. 5. Shortly after, the complainant went outside the public house and was involved in another altercation with the co-accused. Thereafter, the appellant punched the complainant once. He fell to the pavement. On the pavement it was clear that he had, at least at some stage during the course of that evening, sustained serious injury. An ambulance was called. He was taken to hospital and found to have suffered head injuries including a fracture to the left frontal bone of the skull, an extradural haematoma and a suspected fracture of the left eye socket. It was accepted that he had suffered really serious body injury. 6. The appellant was subsequently arrested and interviewed. He did not require the attendance of a solicitor. He told the police that he had punched the complainant who had fallen to the ground and hit his head. 7. The prosecution case in relation to this appellant was that the punch had caused the complainant to fall to the ground and hit his head on the pavement. The count of assault occasioning actual bodily harm was available to the jury both in relation to the co-defendant and this appellant if they were not sure which blow had caused the really serious harm. 8. The appellant's case was that although he accepted he had struck the complainant he had done so using lawful force to protect the pregnant girlfriend of the co-defendant and prevent further offending by the complainant. Furthermore, in any event, in respect of the count of inflicting grievous bodily harm the prosecution could not establish that it was the blow of this appellant that had caused ultimately the serious bodily injury. Thus, the issues for the jury were: whether really serious injuries had been caused when the appellant struck the complainant causing him to fall and hit his head onto the pavement; whether he had lawful justification or excuse for striking the complainant; whether the degree of force used by the appellant was reasonable in all the circumstances for the prevention of crime or in defence of himself or another; whether the appellant honestly thought at the time it was necessary to use force to defend himself or prevent further crime or, in the alternative, if the jury were not satisfied in relation to the principal count, whether the punch had caused some injury. 9. The evidence flowed from the allegations that had been made. The complainant recalled that he had been involved in an incident inside the public house during which punches had been thrown. He said that he later went outside the public house, saw the co-defendant and recalled saying something like: "Come on, shake hands" but was then head-butted on the bridge of the nose. He had no recollection of what had happened thereafter. 10. More significant, the supervisor of the public house, Polly Wattridge, said she had seen the complainant being calmed down by others inside the public house and had later seen him with a swelling over his left eye. She said that at some time after, he had gone outside the public house and she had seen him fall and hit the concrete pavement. She described his fall as having “fallen like a tree trunk" and having spun round 180 degrees. There was a large amount of blood and he was unconscious. She had remained with him until he regained consciousness and the police had arrived. 11. Evidence was given by Dr Robert Chapman, a consultant forensic pathologist, who expressed the opinion was that, because of their severity, the fractures to the complainant's skull were caused by a heavy fall onto a hard surface. They could not have been caused by the complainant having received a punch and a head-butt. He said that the injuries to the nose were very unlikely to be caused by just pushing but if they had been caused by a punch there was a very low probability (also expressed as only a very slight chance) that it would have caused really serious harm. 12. In cross-examination he was asked about statements from Dr Shackleton (who had advised the defence) in terms that what Dr Shackleton had expressed by way of an opinion was put to him. In our judgment, that is not an appropriate way to cross examine, if Dr Shackleton was not to give evidence, because the questions appear to rely upon the stated but unproved evidence of another doctor, and the jury could then be influenced by the fact that there was an opinion from a doctor which was not adduced in evidence but which supported a particular contention as to the cause of the injuries. 13. Putting that point to one side Dr Chapman agreed that it was not possible to be completely sure whether the injuries were caused by the fall to the ground or the earlier punch to the left eye and that a previous injury causing some degree of stunning in combination with alcohol intoxication would have made the complainant more vulnerable to any later episode of trauma. His opinion was quite clear: i. "Q. So finally, what caused the really serious injuries to Ryan Smith? A. In my opinion it was a heavy and unprotected fall to the ground." 14. Notwithstanding that clear expression of opinion Dr Chapman accepted that in medical science certainty was never possible and when asked to express the percentage of certainty of his opinion spoke in terms of 95%. He thought it unlikely that the complainant would have been able to stand up, walk about and engage in a fight after he had suffered a serious injury. 15. In his defence the appellant gave evidence and said that he had been one of those who had assisted in separating the co-accused and the complainant following the first incident inside the public house. He accepted that in the second incident he had hit the complainant but said that he had done instinctively as a reaction as to what was happening and because he wanted to bring it all to the end to stop further fighting. He said he had acted reasonably in the circumstances and had not had the opportunity to weigh up precisely how much force would be necessary for him to be used. He did not accept he was responsible for causing the serious skull fracture and haematoma. He said that when he was interviewed by the police he had given a clear account of what he recalled had happened. 16. The co-accused also gave evidence in accordance with what he had said to the police. He said that he had not taken part in any joint enterprise with the appellant and neither punched nor head-butted the complainant. His girlfriend spoke of the insulting remarks that she had received in the public house and the altercation which her boyfriend had with the complainant. She also said, as indeed was common ground, that the co-accused had pushed the complainant in the face. 17. The grounds upon which this appeal is mounted revolved to no small extent around the evidence of the cause of the serious injuries suffered by the complainant. An application was made to dismiss the charge at a time when the appellant was charged with only grievous bodily harm. The Recorder observed that there was evidence on which the jury properly directed could be sure that some of the injuries were caused by the complainant's forehead hitting the pavement which was an immediate effect of the appellant's blow. 18. Now challenging that conclusion Mr Reid argues that at the time the appellant only faced a charge of grievous bodily harm and there was no sufficient evidence as to causation so the jury properly directed could not be sure the relevant injury was inflicted during the part of the incident in which the applicant was involved as opposed to an earlier incident. This of course involves the conclusions based upon what had happened in the absence of the evidence of Dr Chapman. 19. The single judge observed that on the papers there was evidence after the attack in the public house that the complainant was able to get up and walk about. There was evidence from which it could be concluded that the blow from the applicant was of such force as to cause him to go to the ground without protecting himself so he hit himself on the pavement with considerable force and as a result lost consciousness as a result of the blow. A permissible inference would be that serious harm was caused directly or indirectly by the blow, such the Recorder was entitled to reject the application. We agree with that conclusion. 20. The second ground of appeal, which is also a renewed application, is that the trial should have been stopped at the close of the prosecution because Dr Chapman had accepted that when the really serious injuries had been inflicted could not exactly be determined with a likelihood of only 95% that they had resulted from an incident outside the public house. The small chance that they did not result from the punch was too large to allow for a safe conviction. 21. The single judge rejected that submission, observing that the jury would be entitled to take into account all the evidence as to the circumstances of this injury. The fact that the doctor put forward a figure of 95% did not lead to the conclusion that the count should be withdrawn. In particular the jury had to take into account the evidence of Polly Wattridge that he fell like a tree trunk and then was rendered unconscious. 22. In our judgment, again, the learned single judge was correct to reject this ground of appeal. The opinion of the doctor, which is a fact upon which the jury were entitled to rely, was that the heavy and unprotected fall to the ground had caused those serious injuries to argue that the that his differentiation between his opinion and medical certainty justifies a submission of no case to answer is not tenable. 23. The third ground of appeal concerns the structure and nature of the summing-up in which it is said that the applicant's primary defence was confused with the defence of self-defence, which had not been relied upon by the applicant. Suffice it to say that we agree with the observations of the single judge that the Recorder dealt correctly with the unlawful element of the offence of inflicting grievous bodily harm and the direction was adequate to cover the facts of the case and the applicant's defence. 24. Mr Reid recognised that the judge used the phrase "he was or may have been acting in lawful defence of himself or another or may have been using reasonable force in prevention of crime". That deals sufficiently with the complaint as to the way in which the law was articulated. Furthermore and in any event, the judge adopted submissions made by Mr Reid after he had concluded his summing-up in relation to the law and gave the jury a full direction. 25. The final ground of appeal which is the ground upon which the single judge granted leave concerned the fact that the learned judge failed specifically to remind the jury of Dr Chapman's evidence on causation. The judge when summing-up the case to the jury gave a perfectly standard direction dealing with expert evidence, saying: i. "... the expert evidence is called to assist you and to deal with matters which are within the expertise of the witness but are likely to be outside your own experience or knowledge. The evidence given by the expert is not binding on you. It is hoped it is of some assistance to you when you are considering the matters that you have to decide and it is necessary to look at it in its proper perspective, which is that it only forms part of the evidence as a whole. At the end of the day, members of the jury, it is for you to decide, your decision on the various matters you have to decide, in view of all the evidence which you have heard. Of course, when doing that you can take the witness's opinion into account in coming to your own conclusions." 26. It is entirely correct that the learned judge did not summarise the evidence of Dr Chapman although he did make it clear that this appellant's defence was that although he accepted that he struck the blow he did not accept the blow was the cause for serious injuries, the fractured skull and the haematoma. The judge also reminded the jury of the evidence of Polly Wattridge, to the effect that she saw the complainant fall "like a tree trunk and spinning around about 180 degrees", by which stage he was unconscious with blood all over the place. 27. The learned judge could properly have included within his summing-up a short summary of that which Dr Chapman had said, albeit it is important to underline that this trial had taken only some slightly over two days in its entirety. Dr Chapman had given evidence the day before speeches and summing-up and it is beyond doubt and indeed confirmed by counsel that some attention was paid to Dr Chapman's evidence by both. 28. When the judge came to sum-up Mr Reid drew his attention to the judge's failure to deal with aspects of self-defence but made no complaint at all about the failure to deal with Dr Chapman's evidence in extenso. This was notwithstanding that twice he was asked whether there was any aspect about which he wished to make complaint. Mr Reid explains that he was focusing on the legal direction and had not appreciated that the learned judge had not dealt with what Dr Chapman had said. 29. It is important to underline, as has been identified in the Review of Efficiency of Criminal Proceedings, that the judge's obligation is to remind the jury of the salient issues in the case and save in the simplest of cases the nature of the evidence to relevant to each issue. This need only be in summary form to bring the detail back to the minds of the jury including a balanced account of the issues raised by the defence. It is not necessary to recount all relevant evidence (see paragraph 310). 30. That recommendation is now incorporated in the Criminal Procedure Rules 2015 and 25.14, which requires that the court (a) to summarise for the jury "to such extent as is necessary" the evidence relevant to the issues they must decide. It is for the judge to decide the extent to which it is necessary to reiterate the evidence which the jury had heard only the previous day and which had been the subject of submissions by counsel. He certainly left the issue, namely whether the blow inflicted by the appellant had caused really serious injury to the jury and he made it clear that that was one of the issues in the case. Although, as we have said, it might have been better had the judge devoted a few sentences to a summary of that which Dr Chapman had said to suggest that his failure to do so renders this verdict unsafe is to go too far. 31. In the circumstances this appeal against conviction dismissed. 32. In relation to sentence, Mr Reid refers to the appellant's prior good character and the fact that the learned judge identified, correctly, the starting point of 18 months' imprisonment as a category 2 case within the guidelines issued by the Sentencing Council before going on to accept that there were a large number of mitigating circumstances that could be taken into account, not only his good character but also the fact that this was a single blow, the appellant was remorseful and that he had an excellent character and had done very well despite the difficulties in his past. Mr Reid argues that having identified these mitigating features and the starting point he failed to reduce the starting point to take those into account. That submission fails to reflect the fact that although not identified as aggravating features, there is no doubt that the judge noted the features, namely that this incident occurred in a public house, had caused lasting harm and was the result of intoxication. These features are potentially aggravating. For our part, whereas we have come to the conclusion that this sentence was at the top of the range available to the learned judge, we are not prepared to conclude it is either wrong in principle or manifestly excessive. The renewed application for leave to appeal against sentence is also refused.
{"ConvCourtName": ["Crown Court at Kingston-upon-Thames"], "ConvictPleaDate": ["4th September 2015"], "ConvictOffence": ["grievous bodily harm"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Kingston-upon-Thames"], "Sentence": ["18 months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["incident inside the public house"], "VictimType": ["Ryan Smith"], "VicNum": ["the complainant"], "VicSex": ["He"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["intoxicated."], "ProsEvidTypeTrial": ["Dr Robert Chapman, a consultant forensic pathologist", "taken to hospital and found to have suffered head injuries"], "DefEvidTypeTrial": ["He said he had acted reasonably in the circumstances", "defence of himself or another"], "PreSentReport": ["data not available"], "AggFactSent": ["incident occurred in a public house, had caused lasting harm and was the result of intoxication"], "MitFactSent": ["the fact that this was a single blow, the appellant was remorseful and that he had an excellent character"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["The co-accused"], "AppealAgainst": ["appeals against conviction"], "AppealGround": ["the learned judge failed specifically to remind the jury of Dr Chapman's evidence on causation.", "The third ground of appeal concerns the structure and nature of the summing-up", "The second ground of appeal, which is also a renewed application, is that the trial should have been stopped at the close of the prosecution", "extent around the evidence of the cause of the serious injuries suffered by the complainant"], "SentGuideWhich": ["guidelines issued by the Sentencing Council", "section 20 of the Offences Against the Person Act 1861", "Criminal Procedure Rules 2015 and 25.14"], "AppealOutcome": ["dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we are not prepared to conclude it is either wrong in principle or manifestly excessive."]}
{"ConvCourtName": ["Crown Court At Kingston-Upon-Thames"], "ConvictPleaDate": ["2015-09-04"], "ConvictOffence": ["grievous bodily harm"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Kingston-Upon-Thames"], "Sentence": ["18 months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Stranger"], "VictimType": ["Individual person"], "VicNum": ["1 of 1"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Yes-drinking"], "ProsEvidTypeTrial": ["Expert report/testimony", "Medical evidence"], "DefEvidTypeTrial": ["Offender believes actions justified", "defence of himself or another"], "PreSentReport": ["Don't know"], "AggFactSent": ["incident occurred in a public house, had caused lasting harm and was the result of intoxication"], "MitFactSent": ["the fact that this was a single blow, the appellant was remorseful and that he had an excellent character"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["1"], "AppealAgainst": ["appeals against conviction"], "AppealGround": ["the learned judge failed specifically to remind the jury of Dr Chapman's evidence on causation.", "The third ground of appeal concerns the structure and nature of the summing-up", "extent around the evidence of the cause of the serious injuries suffered by the complainant", "The second ground of appeal, which is also a renewed application, is that the trial should have been stopped at the close of the prosecution"], "SentGuideWhich": ["guidelines issued by the Sentencing Council", "Criminal Procedure Rules 2015 and 25.14", "section 20 of the Offences Against the Person Act 1861"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we are not prepared to conclude it is either wrong in principle or manifestly excessive."]}
74
Neutral Citation Number: [2015] EWCA Crim 349 Case No: 201206585 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Kingston-Upon-Thames Crown Court HHJ Dodgson T20127043 Royal Courts of Justice Strand, London, WC2A 2LL Date: 10/03/2015 Before : THE RIGHT HONOURABLE LORD JUSTICE FULFORD THE HONOURABLE MR JUSTICE HAMBLEN and HIS HONOUR JUDGE WAIT - - - - - - - - - - - - - - - - - - - - - Between : The Crown - and - Edward Henry Austin Applicant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Joel Bennathan QC (instructed by Imran Khan and Partners ) for the Applicant Ms Deanna Heer (instructed by CPS Appeals Unit ) for the Respondent Hearing date : 28th November 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Fulford Introduction 1. On 23 October 2012 in the Crown Court at Kingston-Upon-Thames before H.H. Judge Dodgson and a jury the applicant was convicted by a majority (11-1) of conspiracy fraudulently to evade the prohibition on the importation of a controlled drug of Class A. On the same day he was sentenced to 28 years’ imprisonment. 2. He had various co-accused who had been convicted at an earlier trial (2 June 2011) of the same offence (the applicant’s trial was delayed because he had left the country and it was necessary to extradite him from Spain; this occurred on 31 January 2012). Jamie Green, Zoran Dresic and Jonathan Breere were each sentenced to 24 years’ imprisonment. Daniel Payne was sentenced to 18 years’ imprisonment and Scott Birtwistle was sentenced to 14 years’ detention in a Young Offender Institution. 3. Applications for leave to appeal against sentence for Green and Breere were refused, and Payne’s appeal against sentence was dismissed, by the Full Court on 7 March 2012 ( [2012] EWCA Crim. 656 ). Green’s application for leave to appeal against conviction was refused by the full court on 3 October 2012 ( [2012] EWCA Crim 2177 ). 4. Dresic lodged an application to appeal against conviction and sentence. No grounds were submitted and it was treated as ineffective. Birtwistle lodged an application for leave to appeal against conviction. It was refused by the single judge and has not been renewed. 5. Before this court the applicant has renewed his application for leave to appeal against conviction and sentence. The Facts 6. Between March and July 2010, officers from the Brazilian police conducted a successful investigation into a group of Eastern European men who were believed to be smuggling cocaine from Brazil into Europe by ship. In the early hours of 30 May 2010 a Brazilian commercial container ship called the MSC Oriane was observed travelling east through the English Channel. Between 01.12 and 01.38 it passed close to another vessel, the “ Galwad-Y-Mor ” (Galwad), which had ventured out in a force 8 gale. The Galwad was owned and operated by Jamie Green, who was on board together with Daniel Payne (an occasional crew member), Scott Birtwistle (a regular crew member) and Zoran Dresic (who had no seafaring experience). At one point the Galwad made a number of erratic manoeuvres in the vicinity of the route taken by the Oriane, which was consistent, the prosecution said, with the retrieval of holdalls containing drugs that had been jettisoned from the Oriane. During the journey calls were made via the Galwad’s satellite to the alleged leader of the conspiracy, Daniel Dugic (unapprehended), who had arrived in the United Kingdom on a false passport on 1 May 2010 with another man called Dominik Danilovic, a convicted drug trafficker. The Galwad also received calls from a telephone number ending 5034 (referred to at trial as the “ Mustard ” telephone), the apparent main use of which was to send and receive text messages from a Dutch telephone. It was linked, according to the prosecution, with the present applicant who had been observed on 18 and 28 May 2010 in the company of Dugic. On 18 May 2010 a man called George Copley was also present. He was convicted in 2011 of possession of cocaine with intent to supply and possession of a shotgun without a certificate. The applicant met with Copley again on 20 May 2010 but this time they were alone. 7. On 27 May 2010, Dresic and Dugic (whose exit from the country had not been noted) arrived in the United Kingdom and on 28 May 2010, the applicant, Dugic and Dresic travelled to Portsmouth where they met with Jonathan Breere, the man who the prosecution said linked Green with the organisers of the importation. At 14.16 the applicant, Dresic, Dugic and Breere boarded a hovercraft bound for the Isle of Wight. Between 16.37 and 16.50 two mobile telephones were purchased using false details from Phones 4U in Newport, Isle of Wight. One, registered in the name of Tony Perelli, was recovered from Dresic on his arrest. It contained one contact number under the name “ Dexsa ” (which the prosecution suggested referred to Dugic). The other, registered in the name “ John Wilson ” (6752) and used almost exclusively to keep in contact with Breere on the Isle of Wight, was attributed to the applicant. Evidence showed that top up vouchers for the Dexsa and Mustard phones were purchased at the same time and place on 27 May 2010. 8. At 18.53 on 30 May 2010 police officers observed the Galwad from the cliff edge overlooking Freshwater Bay. They said they saw 10 to 12 packages being deposited into the sea. The Galwad then sailed off and berthed at Yarmouth Harbour. Green, Payne, Dresic and Birtwistle disembarked. Over the next few hours there was telephone contact between the accused. On 31st May 2010 a number of holdalls, that were watertight and manufactured by a Brazilian company, were recovered a few hundred yards from the south coast of the Isle of Wight. Each had been tied to short lengths of rope which, in turn, had been tied to a longer length of rope, one end of which was tethered to a large buoy. A total of 11 holdalls were recovered. An examination revealed that they contained a total of 255 packages each containing approximately 1kg of cocaine of between 74% and 92% purity with an estimated street value of £53,857,788. The Prosecution Case 9. The prosecution case was that the applicant was party to a conspiracy to import cocaine, based on evidence of meetings with his co-conspirators and cell site evidence. It was the prosecution case that the applicant’s association with Dugic and Copley solely concerned the importation of cocaine. 10. Given the issues raised on this appeal, the prosecution highlight the following particular matters. It is noted that in his defence statement dated 14 August 2012 the applicant did not suggest that there was an innocent explanation for his meetings with Dugic and Copley, and instead he simply denied that he had any knowledge of, or involvement with, drugs. 11. It was only when the applicant’s trial was due to commence on 8 October 2012 that an amended defence statement was served. In this document it was averred for the first time that Dugic had a business in Sierra Leone called “ D and D ” which worked for both the government and private sector clients. It was claimed that at least some of the applicant’s meetings with Dugic related to the latter’s attempts to locate JCBs for export (although this was not said to apply to the visit to the Isle of Wight). It was suggested that the reason the applicant met with Copley was to discuss diggers. 12. We note in this context that the prosecution did not resist the suggestion that Dugic had business interests in Sierra Leone. Instead, once this issue had been raised, the Crown contended that the applicant’s links with Copley and Dugic were unconnected with locating and exporting earth moving equipment. The Defence Case 13. At trial, the applicant denied in evidence that he had been a party to a conspiracy to import cocaine, and he denied having used the “ John Wilson ” phone. He said he lived in Spain but came back to the Kent area from time to time to see his family. He knew Dugic as an acquaintance from a local pub in the Malaga area. Dugic’s main activity, at least when they were together, was seeking to buy earth moving equipment to ship to Sierra Leone where he had a business that undertook contract work for both the Government and private companies. The two realised they would be visiting England at the same time and made a loose arrangement to see each other. When they met up, Dugic asked the applicant to drive him around. Most of the driving, including the meeting with Copley, was in order to attend meetings to discuss possible purchases. 14. They went to the Isle of Wight because Dugic said he had a friend who was travelling there in order to start a job. The applicant drove them to the port; they took the hovercraft to the island; and the applicant spent the day the area of Ryde, in a pub and walking around the shops. Dugic met up with him later in the day. They dined together and took a late boat back to the mainland. By the time they reached the southeast of England it was late and Dugic accepted an invitation to spend the night in the applicant’s spare room. 15. The applicant called two witnesses. Their evidence was unchallenged by the prosecution. Nicholas Coombs, who ran a bar in Spain, said that the applicant worked as a builder, he did not have an extravagant lifestyle, he lived in rented accommodation and drove an elderly car. He said that Dugic (whose photograph he was shown) had been a customer at the bar in the past. The applicant’s sister, Lois Austin, said that when she met him once or twice during the May/June 2010 visit he was the same as normal and showed no signs of having come into wealth. The Grounds of Appeal against Conviction 16. The two grounds of appeal against conviction argued before this court have been advanced in two stages. Ground 1 i) The sole ground of appeal before the single judge was that the judge, during the summing up and in an answer to a question from the jury, erred in his directions as to the offence conspiracy in that they encompassed the possibility of a conviction even if the jury was not sure the applicant had joined the conspiracy. Ground 2 ii) Following the decision of the single judge, the applicant applied to introduce an additional ground of appeal based on fresh evidence. He seeks to rely on evidence from Dermot Ryan, a close friend of his father, who suggests he was told by his ex-partner that a) Dominic Danilovic lived in Sierra Leone and was involved in mining, and b) Dugic is an associate of Danilovic in Sierra Leone. It is argued that this evidence is important because a central feature of the applicant’s defence was that Dugic was trying to buy diggers to ship to Sierra Leone. Ground 1: submissions 17. The judge discussed the directions in law with counsel prior to the commencement of the summing up in a manner now long approved by this court. Following those discussions, and with the consent of counsel, the written directions provided to the jury were as follows: Conspiracy Just as it is a criminal offence to import cocaine into this country, so is it a criminal offence for two or more persons to agree with one another to commit that offence. An agreement to commit an offence is called a conspiracy; and that is the offence which is charged here. Before you could convict Mr. Austin of this offence, you must be sure: 1. That there was an agreement, on or before 1/6/10, between two or more of the persons named in this count to contravene the prohibition on the importation of a controlled drug namely cocaine into this county. 2. That Mr. Austin on or before 1/6/10 and while that agreement was in existence (i) agreed with one or more of the other persons referred to in the count that the crime should be committed and (ii) at the time of joining the agreement he intended that he or some other party to it should carry the agreement out. 3. If you are sure only that he was aware of Dugic’s activities but took no part in them then he must be found Not Guilty 18. Thereafter, on 18 October 2012 the judge directed the jury in the following terms: What is it that he is charged with? Well, he is charged - if you have got the indictment, a document that I think we looked at on the first day and have not really looked at since - with conspiracy. ( Pause ) And it is conspiracy to contravene section 170 subsection 2 of The Customs & Excise Management Act contrary to section 1(1) of The Criminal Law Act 1977. You need not worry about any of that. That is just stating the offence that Parliament created. The particulars: that he on or before 1 st June -- why 1 st June? Well, that is the date by which the conspiracy had finished. So the prosecution are saying that on a day before that end date he conspired with those named men (all of whom have been convicted save for Dugic) and with other persons unknown fraudulently - and that means “dishonestly” - to evade the prohibition on the importation of a controlled drug of Class A namely approximately 250 kg of a powder containing cocaine hydrochloride, and then setting out the section that prohibits the importation of that drug. That is legalese, and legalese is there for a reason. Lawyers do not just invent it for the sake of it. It is there because it sets out precisely what it is that he is charged with. In every day language, what the Crown say is “Well, he entered into an agreement to import cocaine into this country.” I have prepared a written sheet -- a typed sheet, I am sorry. Of course it was written, otherwise it could not be printed. And you will get a copy each now which just sets out in terms what a conspiracy is. (Pause while same distributed.) But before we look at that, let us just stand back and think about what a conspiracy entails. If I mention “conspiracy” to most members of the public, they probably think about Guy Fawkes or something of that sort. A “conspiracy”: it always conjures up, does it not, visions of people in black hats and cloaks and candles and candlelit passageways, that sort of thing. Well, I suppose on one level that is true. But conspiracy is actually a crime in itself. Why is it a crime in itself? Well, because sometimes one attracts criminal liability before you actually complete what it is you set out to do. So let us just stand back from this case and think about a robbery, for example. You have got absolutely no problem, I am sure, with the idea that if four men go into a bank, one of them is on the pavement outside keeping watch, two have gone in with stocking masks over their face, and another one has got a stocking mask and a gun in his hand, they go into the bank and they say “Hand over the money!”, the money is handed over and they all leave. Are they all guilty of robbery? Well, you may think undoubtedly they are. However, what if on their way to the bank, just as they get out of the car and as the three of them are about to go into the door of the bank dressed in the stocking masks carrying a gun, etc, etc, what if at that point the police - who have been topped off - say “No, you don’t. You’re under arrest”? Well, would it be open in law for them to say “Sorry, haven’t done it yet. We haven’t done anything wrong”? Well, you may think it would be an affront to common sense if in those circumstances they would be entitled to say that. And indeed it is not our law. The law is that they have conspired to commit a robbery. They have agreed to commit a robbery. And therefore they attract criminal liability even though they have been prevented from carrying out the agreement. Here you might have thought to yourselves “Well, hang on! They tried to import the cocaine and they did actually import it into our national waters. But what they wanted to do with it they did not achieve because the Customs took it.” Well, it does not matter. It is the agreement. If we look at the sheet I have given you, this really sets it out, going now to our particulars. Just as it is a criminal offence to import cocaine into this country, so it is a criminal offence for two or more persons to agree with one another to commit that offence. An agreement to commit an offence is called a “conspiracy”, and that is the offence which is charged here. Before you could convict Mr. Austin of this offence - the offence on the indictment - you must be sure first of all that there was an agreement on or before 1 st June 2010 between two or more of the persons named in this count to contravene the prohibition on the importation of a controlled drug, namely cocaine, into this country. Now as I have already told you and I will repeat to you: you decide the facts, I do not. But I would venture to suggest that as regards paragraph 1 you might have no difficulty ticking that off. It is a matter for you. But you have heard that the men named on the indictment have been convicted of that conspiracy. You may think that the defence in this case have not sought to challenge that there was such a conspiracy. The defence here is “There may well have been a conspiracy. I was not a part of it.” So the first question: “Was there that agreement?” The next question - and this is where we become really focused on your task - the Crown have to prove that Mr. Austin on or before 1 st June 2010 and while that agreement was still in existence -- in other words, take as the cut-off point the point when the men were arrested which is on I think 31 st May or 30 th May. Whilst that agreement was still in existence, he agreed with one or more of the other persons referred to in the count that the crime should be committed. Well, there is no evidence that the Crown have called to show that he ever knew of the existence of Scott Birtwistle or of Mark Payne. He says, of course, that he never met Jamie Green. Well, that does not matter because the Crown say that he certainly met Jonathan Beere who they say has been convicted of this conspiracy - and indeed he has been - and they say that he certainly was in the company of Daniel Dugic. The Crown say that those two men at least were party to this conspiracy and that Mr. Austin knew full well what the conspiracy was and that he agreed with at least one or more of those other persons - indeed the Crown point particularly to Dugic - and they say that Mr. Austin agreed at least with Dugic that the crime of importing cocaine should be committed. And the Crown have to prove that at the time of joining that agreement - whenever it was - he (Mr. Austin) intended that he or some other party to it should carry the agreement out. In other words, he was a knowing party to the agreement and was intending that the agreement should be carried out. That is what the Crown have to prove. I have put paragraph 3 there. It is in fact not the prosecution’s case and it is not the defence case, but it is a question that might occur to you. If you were to take the view that he knew what Dugic was up to but he actually took no part in it, well then he would be not guilty, because the Crown would have failed to prove that he agreed to the crime being committed and he intended that he or some other party should carry it out. If he were just aware of what was going on, well then he would not have joined in. But of course, as I say, it is not the defence case. The defence case is that he knew nothing about it at all. The Crown’s case is this: that he was aware of Dugic’s activities. And the Crown say “If you are sure that he was aware of Dugic’s activities, there is no room for thinking or for doubting that he took any part in it”, because they say that clearly if he was aware of Dugic’s activities then he would have been perfectly aware that his actions in taking Dugic to the Isle of Wight, bringing him back, etc, etc would all have been actions indicating or evidencing that Mr. Austin intended that the agreement should be carried out. So paragraph 3 is there because it is a theoretical possibility. It is for you to consider it. But you may -- it is a matter for you, not me. You may take the view that in fact in the circumstances of this case it is only a theoretical possibility which in fact can be disregarded. Well, that is the basis of conspiracy. It is not rocket science by any means. And the only reason I have given you the written direction is because some people sometimes get concerned as to what a conspiracy entails. It is not a word we encounter in everyday. It is only right that I give you that help, if indeed you needed it. It makes me remind you of one other matter which is this. If at any time during your deliberations you want help as to the law, if at any time - as I made it clear - you want to be reminded of any of the evidence, you have only to send a note. 19. The judge returned to the issue of conspiracy, and the role of the applicant, a little later: So in deciding whether there was a criminal conspiracy and - most important in this case - whether Mr. Austin was a party to it, look at all the evidence as to what occurred during the relevant period, including of course the behaviour and the actions of each of the alleged conspirators. Now as I have said, it would be rare to have a formal agreement. There does not have to be any formality about an agreement to commit an offence. Indeed, an agreement may arise on the spur of the moment. If you take a street fight, for example: ten seconds before, everybody was walking along the street quite happily. Ten seconds later, there is a brawl going on. One or two bystanders look for a few seconds and run. Another couple of bystanders look for a few seconds and join in. They have joined in that agreement to commit the offence. Nothing need be said at all. That agreement may arise on the spur of the moment. An agreement can be made with a nod or a look. And indeed an agreement can be inferred from the behaviour of the parties. However, the essence of a conspiracy is that Mr. Austin in this case -- what the Crown have to prove is that he shared that intention to commit the offence and he intended that it should be carried out, as I have set out in paragraph 2. Now, the level of involvement is another matter. The Crown do not have to prove that Mr. Austin was at the top, the bottom or the middle. If they prove to your satisfaction that Dugic was the main man and Mr. Austin was to be his assistant, then providing the constitute parts of the offence as I have directed you are made out, well then he is guilty, even if it is in a fairly subsidiary way. It may well happen that one or more of the conspirators is more deeply involved and has a greater knowledge of the overall plan than the others. It may also be the case that people join in at different times. Some may join right at the beginning. They may form the conspiracy. Others may join in after it has been formed. Others can perhaps drop out before it has been finally completed. Provided you are sure that Mr. Austin at some stage agreed with a co-conspirator that the crime in question should be committed and at that time he intended that it should be carried out, it does not matter precisely where he is on the scale of involvement and neither does it matter when he precisely became involved. He would be guilty. It really comes to this. If after having considered all my directions you are sure there was a conspiracy and he was a party to it, you will convict. If you are not sure, you will acquit. 20. When the jury retired at 1.10 pm, no request was made to the judge to amend or correct any part of these directions 21. The jury’s retirement spanned a number of days. On 22 October 2012 the jury sent the judge a note: Can we please ask: if Austin is aware of importation of drugs and continues to drive, is this partaking in Dugic’s activities? 22. There was discussion in open court with counsel as to the guidance the judge proposed to provide to the jury in response. In due course these were as follows: Members of the jury, you have sent me a note that reads as follows. “Can we please ask: if Austin is aware of the importation of the drugs and continues to drive, is this partaking in Dugic’s activities?” You will remember I gave you a written direction as to the meaning of “conspiracy”, and I am just going to go over that again because I think that will deal with the question. As I explained to you, a conspiracy is a criminal offence in itself. The agreement to commit a crime is itself a crime. So it is a criminal offence for two or more persons to agree with one another to commit that offence. Therefore before you could convict Mr. Austin, you would have to be sure first of all that there was an agreement on or before 1 st June between two or more of the persons named in this count to import cocaine into this country. So the first question: was there a conspiracy? You may think - but it is for you and not for me - that it has really been the background to this case that, yes, there was a conspiracy. The next question: did he (Mr. Austin) on or before 1 st June and while that agreement was still in existence -- did he agree with one or more of the other persons referred to in the count that the crime should be committed, and that at the time of joining the agreement he intended that he or some other party to it should carry that agreement out? And as I said to you, if you were sure only that he was aware of Dugic’s activities but took no part of them, then he would be entitled to be found not guilty. Now your question is clearly relating to that. As I said to you, there does not have to be any formality about entering into a conspiracy. Entering into an agreement may occur by your actions, by what you do. It may occur by a nod or a knowing look. An agreement can be inferred from behaviour of the parties. And the essence of joint responsibility is that each defendant shared the intention to commit the offence and took some part in it - however great or small - so as to achieve that aim. As I said to you, it may well be the case in a conspiracy that one or more of the conspirators may be more deeply involved. You may have the people at the top, you may have the people at the bottom, you may have people who play a very small role. But everybody who joins in that agreement intending that it should be carried out - no matter what the role they play - if they have joined in that agreement then they are guilty of conspiracy. It does not matter either at what time they join in. So you do not achieve criminal liability only by being there at the beginning. If there is an agreement that is ongoing and you become aware of that agreement and by your words or actions indicate that you are joining that agreement intending that it be carried out in no matter what role, why then you would be guilty of the offence. So that is the question. Go back to the basic written direction that I gave you. Examine that carefully. Was he a party to the agreement? Did he intend that it should be carried out? Did he join in the agreement whilst it was still in existence? If he did, it does not matter what his role was. Now those are the directions that I repeat to you. Because it is obviously a very important question that you have asked, I am just going to ask you to go outside while I just discuss with counsel whether there are any other matters that they believe I should add to that direction. Okay? So if you would not mind just going outside for a second or two, please. 23. At this point Mr Bennathan QC expressed, for the first, time a reservation as to the circumstances in which the applicant could be convicted: My concern focused on the word “continues” which maybe one reads too much into a jury note as if it is the words of a statute. But “continues” does suggest “realised at some stage”. Well, given the uncertainty as to when he was and was not driving Dugic about, my concern would be he has been driving him around and after he has played a useful role he realised that something was afoot. 24. The judge declined to vary his direction and the jury then retired once again to consider their verdicts. 25. Thereafter, Mr Bennathan elaborated in oral submissions the substantive issue that now constitutes his criticism of the judge’s directions in law. The judge declined to give the jury any further directions and in due course the applicant was convicted. 26. Mr Bennathan submits that the judge erred in the final part of the written directions – “ if you are only sure that he was aware of Dugic’s activities but took no part in them then he must be found not guilty ” – for two principal reasons. First, it is suggested it provided the jury with a possible factual scenario which, on the rival cases of the prosecution and the defence, was never going to arise for their consideration. It is submitted the last occasion when there was clear evidence of the applicant having contact with Dugic was during the drive back from the Isle of Wight, and if at that stage the applicant had knowledge of this criminality, it was because he was involved in the importation. Thus, it is suggested that on the prosecution case at no relevant stage could the applicant have known of the plot whilst not being a party to it. 27. Second, Mr Bennathan critically contends that in light of this final part of the written directions, it was possible the jury may have convicted the applicant on the basis that he agreed with Dugic’s activities, in the sense that he assisted him once he realised what was happening, but that he did so without having joined a conspiracy as defined by section 1 Criminal Law Act 1977. Section 1 is in the following terms: The offence of conspiracy 1 (1) Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either – (a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or (b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible, he is guilty of conspiracy to commit the offence or offences in question. 28. Mr Bennathan submits it was critical that the jury were not permitted to convict in the absence of an agreement to commit the offence. Furthermore, he argues that not only was it necessary for the jury to conclude there was a relevant “agreement” but that since conspiracy is an inchoate offence, it is also necessary that there was an explicit, as opposed to an implicit, agreement. 29. In the alternative, Mr Bennathan argues that, at the very least, there should have been a proven “ meeting of minds ” which resulted in the applicant agreeing with at least one other individual to import class A drugs. 30. Finally, it is contended that although the judge unexceptionally informed the jury that there did not need to be any formality about the agreement that underpinned the conspiracy, the example he provided of the street fight was a direction that was more apposite to a direction on joint enterprise rather than on a charge of conspiracy. Ground 1: discussion 31. In our judgment the law in this area is clear. An “ agreement ” self-evidently lies at the heart of conspiracy, given the statutory provision. It need not have the trappings of a conventional contract, and the courts have counselled against introducing into the straightforward concept of an agreement to pursue a course of conduct ideas that are derived from the civil law of contract (see R v Anderson [1986] AC 27 at 37). There is no requirement of formality, and it is possible to have conspiracies in which some participants never meet others, for instance in “ chain ” and “ wheel ” conspiracies (see Ardalan [1972] 2 AER 257). As Toulson LJ observed in R v Shillam [2013] EWCA Crim 160 “ Conspiracy requires a single joint design between the conspirators within the terms of the indictment. […] but it is always necessary that for two or more persons to be convicted of a single conspiracy each of them must be proved to have shared a common purpose or design [19]”. 32. Mr Bennathan is correct in his observation that the judge’s example of a street fight and an agreement in those circumstances being formed on the spur of the moment was perhaps somewhat inapposite as regards a conspiracy to import drugs which is unlikely to occur as a result of a nod or a look. However, he misunderstands the reason for the illustration: the judge was doing no more than indicating to the jury that there is no requirement for agreements of this kind to have any formality. These observations were immediately preceded with the direction “ Now as I have said, it would be rare to have a formal agreement” and followed by the direction “ However, the essence of a conspiracy is that Mr. Austin in this case -- what the Crown have to prove is that he shared that intention to commit the offence and he intended that it should be carried out […] ”. And a little later the judge directed the jury that they needed to be “sure that Mr. Austin at some stage agreed with a co-conspirator that the crime in question should be committed and at that time he intended that it should be carried out”. There could have been no doubt in the minds of the jury that they had to be sure that the applicant had agreed to join this conspiracy, howsoever that agreement was reached. 33. Turning to Mr Bennathan’s central submission that the judge’s directions created the possibility of a conviction even if the jury was not sure the applicant had joined the conspiracy, it is critical in our judgment to look at the judge’s directions overall. At the centre of the judge’s directions, he indicated: Before you could convict Mr. Austin of this offence - the offence on the indictment - you must be sure first of all that there was an agreement on or before 1 st June 2010 between two or more of the persons named in this count to contravene the prohibition on the importation of a controlled drug, namely cocaine, into this country. Now as I have already told you and I will repeat to you: you decide the facts, I do not. But I would venture to suggest that as regards paragraph 1 you might have no difficulty ticking that off. It is a matter for you. But you have heard that the men named on the indictment have been convicted of that conspiracy. You may think that the defence in this case have not sought to challenge that there was such a conspiracy. The defence here is “There may well have been a conspiracy. I was not a part of it.” So the first question: “Was there that agreement?” The next question - and this is where we become really focused on your task - the Crown have to prove that Mr. Austin on or before 1 st June 2010 and while that agreement was still in existence -- in other words, take as the cut-off point the point when the men were arrested which is on I think 31 st May or 30 th May. Whilst that agreement was still in existence, he agreed with one or more of the other persons referred to in the count that the crime should be committed. 34. That was entirely in accordance with the definition of conspiracy as it applied in this case, namely that the prosecution needed to prove there was an agreement that a course of conduct was to be pursued that, if carried out in accordance with their intentions, would necessarily involve the commission of an offence by one or more of the parties to the agreement. The final part of the direction relating to Dugic, and the applicant’s awareness of his activities, was wholly in the applicant’s favour, in the sense that it ensured that the jury understood that if the applicant was simply aware of “ Dugic’s activities ” ( viz. the scheme to import a class A drug) but took no part in those activities he should not be convicted (“ if you are sure only that he was aware of Dugic’s activities but took no part in them then he must be found Not Guilty” ). 35. We are wholly confident that this passage concerning Dugic’s activities would not have caused the jury to ignore everything that had preceded that direction, and have led them to convict solely on the basis that he undertook some activity that assisted the drug enterprise without joining the conspiracy. Instead, the elements that needed to be proved as regards participation in a conspiracy were emphasised throughout, and they were repeated in clear terms when the judge answered the jury’s question whilst they were in retirement, as set out above. This single short passage should not be viewed in isolation, outside its true context. As a part of the wider summing up it was wholly unobjectionable; indeed, it was necessary in order to ensure that the applicant was not convicted on a false basis. 36. Mr Bennathan has rehearsed a number of the arguments, based on the facts that he deployed at trial, in support of the contention that the applicant may not have been involved in the conspiracy. Those matters do not assist on this issue as to the adequacy and correctness of the judge’s direction on the charge the applicant faced. There is no suggestion that there was no case for the applicant to answer. 37. The judge was not under a duty to direct the jury that the agreement must be explicit. There is no rule of law, founded on statute or the common law, to the effect that because this is an inchoate offence, the agreement needs to be explicit rather implicit. Instead, the requirement is that the jury is sure from all the evidence that the defendant they are considering agreed with others that the offence of importing cocaine was to be committed. We consider that it is entirely plausible that agreements of this kind could be implicit rather than explicit in nature – it all depends on the circumstances and the relationship between those involved. 38. When the directions are considered overall, they were clear, balanced and correct in law, and they ensured that the applicant would only be convicted if he had joined the agreement, and that he was to be acquitted if he was simply aware of Dugic’s activities but took no part in what was occurring. Ground 2: submissions 39. Turning to the suggested fresh evidence from Dermot Ryan, the applicant’s case at trial was that his dealings with Dugic, as set out above, solely concerned buying earth moving equipment to ship to Sierra Leone. There was an obvious Sierra Leonne connection through Danilovic who had a driving licence issued in Freetown. The prosecution at trial probed the applicant’s account as to Dugic’s business involvement in Sierra Leone in some detail, but it was not suggested that his account on this issue was untrue. 40. After the applicant’s conviction it is said his lawyers tried and failed to make enquiries in Sierra Leonne. Thereafter, the applicant’s father revealed that a friend of his travelled to Sierra Leonne and, following further enquiries, the statement from Mr Ryan was obtained. After a preamble, that statement contains the following: Ted (the applicant’s father) had never discussed his son’s court case with me until about six months ago. I can only assume that he was embarrassed to do so. Ted told me about his son’s conviction and the circumstances surrounding his case. He told me that his lawyers were preparing an appeal and that is when the subject of Sierra Leone came up. Ted knew that I had connections with Sierra Leone but was reluctant to ask me favours as he knows of the political situation there. However, he did ask me whether I was able to make enquiries about certain individuals who had featured in his son’s case. He told me that his lawyers had made enquiries in Sierra Leone but they had gone cold. It was at this point that Ted mentioned the two names stated above (Dominic Danilovic and Daniel Dugic). I telephoned my ex-partner who surprisingly told me that our daughter was good friends with Dominic Danilovic’s daughter, that she had met him and knows him and are on first name terms. I have not asked her whether they socialise together. My ex-partner is able to obtain the address of Dominic Danilovic if necessary as he lives in Sierra Leone. My concern is for the safety of my ex-partner, my daughter and myself if it comes to light that his details were passed on by me to the authorities in the UK. My ex-partner also told me that Danilovic is involved in mining. I asked her whether she knew a man by the name of Daniel Dugic. She told me that she had met him in Sierra Leone in the company of Dominic Danilovic. I have not asked anything else as I have plans to go to Sierra Leone in October and can make further enquiries if required. 41. It is suggested this material is admissible given the link to earth moving equipment was an issue in the case; it is capable of belief (Mr Ryan is a man of good character); there is a reasonable explanation for failing to adduce it earlier (the applicant’s father only revealed this connection after the trial); and it may afford a ground for allowing the an appeal, given it is suggested the nature of the relationship with Dugic was at the heart of the case. 42. Finally, it is argued that the prosecution have failed to use the resources at its disposal to investigate whether there was information in this context that might have been of assistance to the applicant in establishing this aspect of his defence at trial or his appeal before this court. Ground 2: discussion 43. Applications to introduce fresh evidence are governed by section 23 of the Criminal Appeal Act 1968. The court has a discretion to receive any evidence which was not adduced in the proceedings from which the appeal lies if it is necessary or expedient in the interests of justice to do so. We have noted that Mr Bennathan in oral argument advanced this ground of appeal as not being higher than “ a slight but important basis for arguing there should be a retrial ”. The court, when considering whether to receive any evidence, must have regard in particular to whether the evidence appears capable of belief; whether the evidence may afford any ground for allowing the appeal; whether it would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and whether there is a reasonable explanation for the failure to adduce the evidence. 44. Given the importance to the applicant at trial of the nature of his relationship with Dugic and the suggested exports of earth moving equipment to Sierra Leone, we observe that efforts to make enquiries in that country seemingly only began after the applicant had been convicted, and that the applicant’s father failed to reveal this connection until after the trial had ended: Ted Austin and Mr Ryan apparently see each other on a weekly basis. 45. Additionally, the suggestion that Dugic had business interests in Sierra Leone was not challenged by the prosecution and at its highest this material from Mr Ryan simply tends to confirm that Dugic has been seen in Sierra Leone in the company of Danilovic and that Mr Ryan’s ex-partner told him that Danilovic is involved in mining. The focus of the Crown’s submissions was that the trip to the Isle of Wight had nothing to do with Sierra Leone or earth moving equipment. 46. The statement now relied on does not reveal whether Mr Ryan’s ex-partner has direct knowledge of this suggested state of affairs or whether this in turn is dependent on evidence from at least one other person. There is a real possibility, therefore, that this is based on multiple hearsay. Furthermore, given what is said about the dangers in Sierra Leone, it is unlikely that further evidence from the applicant on this issue will be forthcoming. 47. We do not consider that it is necessary or expedient in the interests of justice to receive this evidence. Given Mr Ryan’s account does no more than provide slender support – based potentially on multiple hearsay – as regards an issue that was not in dispute at trial (albeit the Crown properly probed the applicant’s evidence on the subject), this evidence would not have had a material impact on the decision of the jury. Moreover, we do not consider that there is a reasonable explanation for the failure to adduce this material at trial: enquiries of this kind could realistically have been pursued in advance of the proceedings at Kingston Crown Court. It would have been possible to make discreet enquiries in Sierra Leone without endangering the person carrying out the investigations. Furthermore, on the evidence before this court the applicant and his advisers have failed to take any further steps since his conviction to explore this aspect of the applicant’s case, which in our view could have been done without exposing Mr Ryan and his ex-partner to risk. 48. It has been suggested that the prosecution should have investigated whether there was a relevant connection with Sierra Leone. Particularly given the late delivery of the defence statement, this is a wholly unrealistic submission as regards the period covering the trial. Furthermore, following the applicant’s conviction there is no obligation on the prosecuting authorities to carry out further enquiries about an issue which, as we have observed, was not in dispute during the original proceedings. 49. We stress that the position before and after trial are significantly different. The Supreme Court in R (Nunn) v Chief Constable of Suffolk Constabulary [2014] UKSC 37 ; [2014] 2 Cr. App. R. 22 has addressed the contention whether the disclosure obligations of the prosecution remain the same pre-appeal as they were pre-trial. In dismissing the submission that the common law disclosure obligation remains constant throughout, Lord Hughes (with whom the rest of the Supreme Court agreed) observed: 31. The fallacy in this argument lies in the implicit assumption that the common law duty, as it evolved, was identical before and after conviction. […] it does not at all follow from the fact that the common law developed the Crown's duty of disclosure with the object of minimising the risk of miscarriages of justice that a convicted defendant such as the claimant, who asserts that his conviction was wrong, is or ever was entitled to the same duty continuing indefinitely after that conviction. The common law developed the duty as an incident of the trial process, to ensure that that process was fair to defendants. It was designed to avoid trials creating miscarriages of justice, not as a means of investigating alleged miscarriages after a proper trial process has been completed. It was not devised in order to equip convicted persons such as the claimant with a continuing right to indefinite re-investigation of their cases, and the fact that some such persons assert that their convictions were miscarriages of justice does not mean that it was. 50. In any event, the prosecution has reviewed the unused material in its possession in light of the submissions of the applicant on this issue. There is nothing to be disclosed. We reject the suggestion that at this appellate stage of the proceedings the Crown had an obligation to investigate this hearsay statement, particularly given it is based on such insubstantial foundations. We similarly do not accede to Mr Bennathan’s application that this appeal should be adjourned to allow further enquiries, directed by this court, to take place in order to discover whether Dugic and others had connections in mining. It is for the applicant to introduce any fresh evidence on which he seeks to rely. As Lord Hughes observed, although “ there can be no doubt that if the police or prosecution come into possession […] of something new which might afford arguable grounds for contending that the conviction was unsafe, it is their duty to disclose it to the convicted defendant. […] This is, however, plainly different from an obligation […] to afford renewed access to something disclosed at time of trial, or to undertake further enquiries at the request of the convicted defendant ” [35]. On these facts it is not necessary to analyse when, if at all, the court should order investigations: this material on any view would not justify such a step. 51. In the event, there is no sustainable material to found an argument either that the prosecution failed in its disclosure obligations to the applicant or that the suggested fresh evidence reveals that his conviction is unsafe. 52. The renewed application to appeal against conviction is dismissed. Sentence 53. The applicant was sentenced on the basis that he played a managerial role above that of Green. The judge unsurprisingly observed that the drug trafficking trade carries huge rewards and brings misery to thousands of people. Society is severely damaged by crimes of this kind, and in consequence long sentences were considered necessary. 54. The applicant is 49 years of age and he has previous convictions including for possessing a controlled drug of Class A in 1996. 55. It is suggested the term of 28 years was manifestly excessive for the role the applicant could be shown on the evidence to have played. Furthermore, it is argued that the judge failed to distinguish between the roles of the applicant and Dugic, the absent leader of the conspiracy. 56. In refusing leave, the single judge observed: The huge quantity of cocaine involved in this conspiracy justified the approach taken in the case of Clough. The judge heard the evidence and was uniquely qualified to assess, as well as fully entitled to make findings about, the part played by the applicant in the conspiracy. There was ample evidence on which he could form the view he did. The sentence passed was consistent with those passed at the conclusion of the previous trial and in line with Clough. There are no grounds for believing that the sentence was manifestly excessive or wrong in principle 57. In our view the judge in the court below was entitled to conclude that the applicant played a role “ over and above that of the skipper of the boat ” and that by his actions, movements and the telephone calls he was revealed as someone who played an integral role in the conspiracy. The judge considered that the applicant was present in this country solely in order to facilitate the importation of ¼ ton of cocaine of high purity. He clearly reflected on where the applicant fell within the structure of this conspiracy, and it was open to the court to determine that his role was greater than that of Green, Beere and Dresic (who were all sentenced to 24 years’ imprisonment). Judge Dodgson presided over these trials and as Hallett LJ observed when refusing Green and Breere’s applications for leave to appeal against sentence and dismissing Payne’s appeal against sentence “ In our judgment this court should bear very much in mind that the sentencing judge was the trial judge. He was far better placed than the members of this court to place the accused in the appropriate place in the hierarchy. He drew clear distinctions between the offenders and he gave sound reasons for so doing. He had had the advantage of seeing and hearing all the accused give evidence […] [35]” . 58. We next consider whether it was necessary for the judge to retire before passing sentence, having given counsel an indication as to his non-final view as to where in the scheme of the offending the particular defendant falls to be sentenced. Mr Bennathan has suggested a complicated exercise that involves, whenever there are two or more trials of co-conspirators, a requirement on the judge to provide counsel with an explanation in advance of passing sentence as to why he has provisionally placed a particular defendant at an identified point in the hierarchy. This is unrealistic: it is clearly open to a judge to adopt this course but it is not in any sense compulsory. The applicant and his counsel would have known that the judge necessarily needed to assess the ambit of the accused’s offending and the part he played in the conspiracy, in light of the roles of his co-accused. Mr Bennathan had a clear opportunity to advance submissions on that basis. Ultimately, it was a matter for the judge to resolve. The applicant suggests the evidence revealed that he was no more than Dugic’s assistant. The judge was entitled to reject that contention: his duty was to determine on the evidence he had heard the right basis for the applicant’s sentence and he was not bound to proceed on the most favourable interpretation of the jury’s verdict for the accused (see Solomon [1984] 6 Cr App R (S) 120). The sentence must be consistent with the jury’s verdict and it must be sustainable, given the evidence. Such was the case here. 59. This was a long, but wholly justified, sentence. This renewed application is also dismissed.
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{"ConvCourtName": ["Crown Court At Kingston-Upon-Thames"], "ConvictPleaDate": ["2012-10-23"], "ConvictOffence": ["conspiracy fraudulently to evade the prohibition on the importation of a controlled drug of Class A"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Kingston-Upon-Thames"], "Sentence": ["28 years’ imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["cell site evidence", "Digital", "Police evidence"], "DefEvidTypeTrial": ["applicant called two witnesses", "Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["previous convictions", "he played a managerial role", "Financial gain /value"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["5"], "AppealAgainst": ["against conviction and sentence"], "AppealGround": ["28 years was manifestly excessive", "additional ground of appeal based on fresh evidence", "the judge, during the summing up and in an answer to a question from the jury, erred in his directions"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The sentence must be consistent with the jury’s verdict and it must be sustainable", "no sustainable material to found an argument either that the prosecution failed in its disclosure obligations to the applicant or that the suggested fresh evidence reveals that his conviction is unsafe"]}
451
Case No: 200703369 B5 Neutral Citation Number: [2007] EWCA Crim 2056 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 10th July 2007 B e f o r e : LADY JUSTICE HALLETT DBE MR JUSTICE BUTTERFIELD MR JUSTICE WILKIE - - - - - - - - - - - - - - - - - - - - - Application by the Crown Prosecution Service under section 58 of the Criminal Justice Act 2003 R E G I N A v "H" - - - - - - - - - - - - - - - - - - - - - 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 H NORTON appeared on behalf of the Appellant MR A LEWIS appeared on behalf of the Respondent - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LADY JUSTICE HALLETT: This case is yet another sad example of what can happen when young people roam the streets of our cities vulnerable through drink and/or drugs. A 16 year old girl came to London to celebrate the New Year. She got drunk, she became separated from her friends and she ended up with strangers. She had sex with one of them. The defendant is accused of being that person. He is now in the charge of a jury on a single count of raping her, contrary to section 1(1) of The Sexual Offences Act 2003 . 2. At the close of the Crown's case, Mr Andrew Lewis, on behalf of the defendant, successfully made a submission of no case to answer before the trial judge, His Honour Judge McGregor-Johnson. The judge gave his reasons on 28th June 2007. The Crown Prosecution Service, represented by Miss Heather Norton, seeks to appeal the judge's ruling in accordance with section 58 of the Criminal Justice Act 2003 . Given the fact that a jury remains empanelled, the application for leave has been expedited. 3. It is necessary to rehearse in a little detail the prosecution evidence. On New Year's Eve 2005 the complainant, VR, and her two friends, BG and PK, traveled from their homes in the [an] area to central London. Some time between 8 o'clock and 9 o'clock in the evening they met a friend. He drove them to Hayes, where they bought a bottle of wine and a litre of vodka. They also smoked some cannabis before boarding a train. The girls originally intended to get off at Westminster, but they continued to London Bridge, on their way consuming the alcohol they had bought. P drank the wine, V and B shared the litre of vodka. 4. Having seen the New Year in, the girls made their way to Elephant and Castle, where they smoked some more cannabis. They then traveled by tube to various places, ending up at North Acton. By this time the complainant and her friend, B, had fallen out. V became separated from her friends. They got off the train at North Acton, but she continued, as she thought to White City. 5. The complainant was very frank in her evidence about lapses in her memory. She had no recollections of her movements between Elephant and Castle and White City. She could not remember the argument with B. She could not remember becoming separated from her friends. Both P and B said that she was very drunk. B said she needed looking after. B also described her as stubborn and determined to get her own way. 6. V got off the tube on her own at White City. She could recall the BBC building, cars and lights. On the opposite side of the road was a car containing three men, one of whom called her over. For some unknown reason, possibly problems with a former boyfriend, she got into the car. She sat in the back next to a man she described as Asian, said to be this defendant. The car drove off. 7. In the course of the journey she said the man in the front passenger seat started “fingering” her, as in digital penetration. She said she did not know when this started or how it happened. She told the jury that the unknown man must have undone her jeans without her knowledge. All she could say was that when she saw his hand between her legs, she pulled it out, she did her trousers back up and told him to get off. His response was to laugh. She said she did not consent to what the man did. 8. The prosecution case was that about ten minutes later the defendant asked her for sex. She described what happened in her video taped interview as follows: "... I just remember the man in the back saying, 'Can I have sex?' but I can't remember what I said to him and all of a sudden my trousers were like yanked down and then he was like, he'd like pulled them down to my knee and then he just like pushed my legs forward and my like jeans were like covering my face and my nose, and he was just like having sex with me and I remember I couldn't breathe or anything." Later she said: "I think I tried, I think I might have tried to say get off me but I don't think he could hear me because like the jeans was over my face and there was some music playing." 9. She confirmed in her evidence that she did not want to have sex with the man, that she did not think that she did so willingly and she did not think that she would have consented. She said she could not remember what she had said to the man because she was drunk. When pressed by Mr Lewis in cross-examination, she said she could not recall what she was thinking or saying. By using the word “consented” in this way, Miss Norton argued that it was clear that the complainant meant she could not say whether she had actually said "yes" or "no". Mr Lewis objected to this interpretation of the evidence. He argued that the complainant was clearly unable to exclude the possibility that she had said "yes" to sex. 10. After the intercourse the complainant said that the man kept trying to kiss her, but she pushed him away and also said "no" when one of the men in the front of the car asked if it was his turn next. In due course the car stopped. The men invited her to go into a house, she refused and walked off crying. She saw a minicab and asked the driver for directions. He offered her a lift. Again, for some unknown reason, she accepted, and in the course of the drive the cab driver assaulted her and tried to kiss her. She rebuffed his advances. She subsequently told her friends what had happened. She was persuaded to go to the police. 11. When examined by a doctor she was asked what happened and Mr Lewis asked us to highlight her response. The doctor said: "She was unsure if the Indian male had raped her. She remembered having sex with him but she didn't remember if she gave her consent." 12. The complainant herself could not recall saying this. The defendant is Albanian, not Indian. 13. The complainant’s clothes were examined and semen was found in the crotch area of her underwear. A full DNA profile was obtained. This matched the defendant. The chances of a matching profile being obtained from a man unrelated to him was estimated at 1 in 8 billion. The forensic scientist stated that this was a conservative estimate. Despite this, the defendant still insists that he was not the man who had intercourse with the complainant that night. 14. The defendant was circulated as “wanted”. He was arrested on 31st December 2006. In interview, he denied any knowledge of the complainant and claimed that he had been in a nightclub in Enfield with a man called Tony all night. Clearly, if the jury accepted that it was his DNA in the underwear, then his account of being in Enfield was a lie. 15. On behalf of the defence, Mr Lewis submitted to the trial judge that there was no case to answer because the Crown had not established that intercourse had taken place without consent. He argued that, firstly, the complainant clearly had capacity to consent because she had rejected the advances of the first and third man. Second, absent any issue about capacity, the only remaining issue was whether or not the complainant had, in fact, consented. Third, at its highest, the Crown's case was that she could not remember whether or not she had consented. As Mr Lewis put it to us, the Crown simply could not exclude the possibility that the complainant had said "yes". 16. Miss Norton conceded at trial that she did not seek a conviction on the basis that consent had been withdrawn; she sought a conviction on the basis that consent had never been given. In response to the argument before us that the Crown could not exclude the possibility that the complainant had said "yes" and the Crown could not establish that the complainant had said "no", Miss Norton relied on cases such as R v Malone [1998] 2 Cr App R 447 , in which it was stated in clear terms: "There is no requirement that the absence of consent has to be demonstrated or that it has to be communicated to the defendant for the actus reus of rape to exist." Further in the judgment it is said: "It is not the law that the prosecution in order to obtain a conviction for rape have to show that the complainant was either incapable of saying no or putting up some physical resistance, or did say no or put up some physical resistance." 17. This statement of principle, Miss Norton argued, supported her contention that the Crown does not need to establish that the complainant said "no" to the defendant, or that the complainant had not said "yes". 18. She submitted the issue here was simply whether or not there was sufficient evidence from which the jury could conclude that the complainant did not consent. She argued there was ample evidence to that effect. The complainant said she did not consent to sex when she got in the car and she did not consent to the fingering of her by the male in the front seat. Thereafter the alleged rapist (a man she had only just met) yanked her clothes down suddenly and pushed her into position. She had said that she did not think that she would have consented to intercourse in these circumstances. She also suggested that she may have told the man to get off her because she did not want to have sex with him. When he tried to kiss her, she pushed him away and she did not think she would have taken part in sex willingly. Miss Norton also reminded us that she cried as she left the scene. She said that she felt disgusted with herself and she did not think she would have just gone along with sex. 19. Miss Norton argued further that even if the complainant had said "yes" to intercourse - which, on the facts of this case, she maintained was highly implausible - there remained an issue as to whether or not she had the capacity to consent. There was ample evidence from which the jury could have concluded that she did not have such capacity. She is a small girl, just 5 foot 3 in height, weighing 8 stone 3 pounds, aged 16, who on any view had consumed half a litre of vodka and smoked cannabis prior to the incident. She was described as very drunk and in need of being looked after. Miss Norton reminded us she could not remember details of her journey and some of what happened when she was sitting in the car. She also had little recollection of the subsequent assault at the hands of the minicab driver. 20. Despite objection from Mr Lewis, Miss Norton also attempted to rely upon the fact that the jury could find the defendant had lied about having sex with the complainant that night. At trial she conceded - and, by the sounds of it, immediately regretted the concession - that any lies told by the defendant would only be relevant to his state of mind and whether he reasonably believed that the complainant was consenting. She now seeks to withdraw that concession. She argues that if the defendant did lie and he was the man who had sex with the complainant, his lie could well go to the issue of consent and capacity to consent. If the defendant lied about his knowledge and involvement because he did not reasonably believe that V was either consenting or had capacity to consent, she argued that would be cogent evidence to be taken into account in deciding whether she in fact consented or had the capacity to consent. If the defendant was the man, his knowledge and/or belief would be highly material evidence. 21. Mr Lewis argued that the complainant herself did not assert that she lacked the capacity to consent; she simply suggested that she had gaps in her memory. He maintained that her evidence supported his contention that she was able to withhold consent, for example from the first man and the minicab driver. Further, he argued that she had a good memory of some of the detail of that night, for example what she saw when she got out at White City and some of the detail of what went on as she got into the car. 22. The judge, in his ruling, observed that, at its highest, the complainant's evidence was that she did not think she would have consented. He stated that the prosecution accepted the complainant could not say that she did not say "yes". He moved immediately from the issue of whether or not she had consented to the issue of whether there was evidence that she lacked the capacity to agree by choice as a result of taking drink and drugs. He stated that he took into account the decision in R v Bree [2007] EWCA Crim 804 . He found that although there was evidence of drunkenness, it was insufficient to allow a jury safely to conclude that the complainant had lacked the capacity to consent. He pointed to evidence which supported the defence submission that immediately before and after intercourse the complainant had demonstrated a capacity to agree or disagree by choice. He also referred to the evidence of the complainant's friends that although they said she was very drunk, they also said she was capable of expressing herself clearly, being stubborn and insisting on doing what she wanted. 23. Miss Norton placed some reliance upon the decision in Bree , to which the judge referred. She placed reliance upon it in general, but she also placed reliance upon it in particular insofar as the President, in giving the judgment of the court, referred to the well publicised case of R v Dougal heard at the Swansea Crown Court. This was a case in which the prosecution offered no further evidence where the complainant could not remember giving or withholding her consent. At paragraph 32 of Bree , the court observed: "Without knowing all the details of the case, and focusing exclusively on the observations of counsel for the Crown in Dougal , it would be open to question whether the inability of the complainant to remember whether she gave her consent or not might on further reflection be approached rather differently. Prosecuting counsel may wish he had expressed himself more felicitously." 24. Bree was a case, Miss Norton reminded us, in which the complainant had not said "no" to intercourse with the defendant. She had a patchy recollection of events and she could not say whether or not she was responding to the defendant's advances. 25. In Bree the observations of the court in R v Lang [1976] 62 Cr App R 50 are quoted with approval. In a case of rape where there was evidence of drink and the issue was consent, "the critical question is not how she came to take the drink, but whether she understood her situation and was capable of making up her mind… [attention should have been focused upon] the state of her understanding and her capacity to express judgment in the circumstances". This principle was emphasised in Bree , where the court held: "... as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, is fact specific, or more accurately, depends on the actual state of mind of the individuals involved on the particular occasion." 26. Before stating our conclusions, it is worth noting our powers. Under section 61(1) of the Criminal Justice Act 2003 this court has power to confirm, reverse or vary any ruling to which the appeal relates. Section 67 provides: "The Court of Appeal may not reverse a ruling on an appeal under this Part unless it is satisfied - that the ruling was wrong in law, that the ruling involved an error of law or principle, or that the ruling was a ruling that it was not reasonable for the judge to have made." 27. In the time available for argument, we have been asked to approach this case simply on the basis that it is section 67(c) which applies here. 28. In most cases this court will take some persuading to exercise its powers under section 61(1) to reverse a ruling made by a trial judge based on his assessment of the evidence. He will have had the inestimable advantage of having seen the witnesses give their evidence and having heard their evidence being tested. A trial judge will usually be in a far better position than this court to assess the strength of the evidence at the close of the Crown’s case. Unusually, however, this is a case where the Court of Appeal is in a relatively good position to judge whether or not the case should have been left to the jury. We have a full transcript of the complainant's video-taped interview and we have a transcript of her evidence. It is also common ground that the complainant appears to have been a honest witness, doing her best to recall what had happened, and was unusually frank. Thus, her credibility is not in issue and her reaction to questioning is of limited significance. 29. We must focus on the evidence called before the jury to prove the following four issues: whether sexual intercourse took place between the defendant and the complainant; ii. whether the complainant in fact consented to intercourse; iii whether the complainant had the freedom and capacity to consent; and, iv. whether the defendant reasonably believed that she consented. 30. Given the DNA evidence, the jury may have little difficulty with the first question - that is not a matter for us. As to the next three questions, whatever concessions made by Miss Norton in the heat of argument, in our judgment the jury would be entitled, as a matter of law, to bear in mind any lies, if that is what the jury find them to be, told by the defendant as to whether or not he had sex with the complainant on the night in question. If the jury decided he lied because he knew the complainant was too drunk to consent or knew that she in fact did not consent, that would undoubtedly help them in their task of assessing whether he raped her. He was better placed than anyone, if he was the man concerned, to form a view as to the complainant's condition and attitude. 31. We are satisfied on our review of the evidence, helpfully summarised by Miss Norton and by Mr Lewis that, with respect to the very experienced judge, there is here sufficient evidence of rape to be left to the jury. As was pointed out in argument, whatever progress Mr Lewis had undoubtedly made in cross-examination, in re-examination the complainant insisted she did not want to have sex when she got into the car, she did not want to have sex when she found the clothing on her face and she told the man to get off during the course of intercourse. The fact that she did not say "no" at the moment of initial penetration is not, in our judgment, fatal to the prosecution case. 32. We are satisfied that this was a ruling that it was not reasonable to make within the meaning of section 67. The judge has erred, in our view, by trespassing too far into the jury's territory by withdrawing the case from them. It was for the jury, not the judge, to decide, on the basis of the evidence called, whether, on these facts, in this case, the complainant had the capacity to consent and/or in fact consented to intercourse or not. 33. To our mind, despite Mr Lewis' eloquent efforts, his submissions are based to a large extent on the premise that because the complainant cannot remember if she consented or not, that is fatal to the prosecution. This principle, if it is such, was expressly disavowed by this court in Bree : see paragraphs 30 to 32. As Miss Norton observed, Mr Lewis' arguments are all good jury points. No doubt they will be deployed to great effect in his closing speech, but in our judgment that is exactly where they should be deployed. This is pre-eminently a case for a jury. 34. Issues of consent and capacity to consent to intercourse in cases of alleged rape should normally be left to the jury to determine. It would be a rare case indeed where it would be appropriate for a judge to stop a case in which, on one view, a 16 year old girl, alone at night and vulnerable through drink, is picked up by a stranger who has sex with her within minutes of meeting her and she says repeatedly she would not have consented to sex in these circumstances. 35. Accordingly, we give the Crown Prosecution Service leave to appeal the ruling and we allow the appeal. The ruling is quashed. The case will be remitted to the Crown Court for the trial to continue as soon as possible. 36. We understand that the judge has sensibly made arrangements for the jury to be contacted so that they can resume the trial as soon as possible, and we note - and are delighted to note - that the judge was very careful in giving his ruling and telling the jury they must go away for a short time, not to give them any hint of what was afoot. They can therefore resume this trial blissfully ignorant of the judge's ruling and this appeal. 37. Given this matter is going back for trial, the reporting restrictions must stay in place. There must be no reporting of this case until the trial is concluded. 38. LADY JUSTICE HALLETT: Mr Lewis, Miss Norton, thank you for your efforts. You last were doing this trial on 28th June. What is the prognosis? When are you expected to resume as you now have to? 39. MISS NORTON: Tomorrow. 40. MR LEWIS: The judge indicated to the jury that the court would contact them today and they would try to resume tomorrow morning. 41. LADY JUSTICE HALLETT: Good. 42. MR LEWIS: That is the plan. 43. LADY JUSTICE HALLETT: Thank you both very much.
{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["raping"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["data not available"], "Sentence": ["data not available"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["strangers"], "VictimType": ["A 16 year old girl"], "VicNum": ["A 16 year old girl"], "VicSex": ["girl"], "VicAgeOffence": ["16 year old"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["drunk", "cannabis"], "ProsEvidTypeTrial": ["\"She was unsure if the Indian male had raped her. She remembered having sex with him but she didn't remember if she gave her consent.\"", "DNA profile was obtained. This matched the defendant."], "DefEvidTypeTrial": ["defendant still insists that he was not the man who had intercourse with the complainant that night.", "the Crown simply could not exclude the possibility that the complainant had said \"yes\".", "the Crown had not established that intercourse had taken place without consent", "she was capable of expressing herself clearly, being stubborn and insisting on doing what she wanted.", "claimed that he had been in a nightclub in Enfield with a man called Tony all night", "He argued that, firstly, the complainant clearly had capacity to consent because she had rejected the advances of the first and third man", "He argued that the complainant was clearly unable to exclude the possibility that she had said \"yes\" to sex."], "PreSentReport": ["data not available"], "AggFactSent": ["The defendant was circulated as “wanted”", "Clearly, if the jury accepted that it was his DNA in the underwear, then his account of being in Enfield was a lie.", "vulnerable"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["defendant is accused of being that person"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["submission of no case to answer before the trial judge"], "AppealGround": ["data not available"], "SentGuideWhich": ["section 67.", "section 58 of the Criminal Justice Act 2003.", "section 1(1) of The Sexual Offences Act 2003."], "AppealOutcome": ["we allow the appeal"], "ReasonQuashConv": ["The ruling is quashed"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["raping"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["data not available"], "Sentence": ["data not available"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Stranger", "Stranger"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Female"], "VicAgeOffence": ["16"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Yes-drinking&drugs"], "ProsEvidTypeTrial": ["DNA evidence", "victim is unsure if she gave consent"], "DefEvidTypeTrial": ["she was capable of expressing herself clearly, being stubborn and insisting on doing what she wanted.", "the Crown simply could not exclude the possibility that the complainant had said \"yes\".", "victim had capacity to consent", "the Crown had not established that intercourse had taken place without consent", "Offender claims to have alibi", "Offender denies offence", "He argued that the complainant was clearly unable to exclude the possibility that she had said \"yes\" to sex."], "PreSentReport": ["Don't know"], "AggFactSent": ["lied about alibi", "vulnerable", "The defendant was circulated as “wanted”"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal against conviction"], "AppealGround": ["data not available"], "SentGuideWhich": ["section 67.", "section 58 of the Criminal Justice Act 2003.", "section 1(1) of The Sexual Offences Act 2003."], "AppealOutcome": ["allowed"], "ReasonQuashConv": ["judge should have let jury decide if offender is guilty"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
597
No. 2011/03424/A2 Neutral Citation Number: [2011] EWCA Crim 2126 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 2 September 2011 B e f o r e: LORD JUSTICE PITCHFORD MR JUSTICE TUGENDHAT and MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - - - - - ATTORNEY GENERAL'S REFERENCE No. 40 of 2011 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A - v - LEE WILLIAMS - - - - - - - - - - - - - - - - - - - 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 W Emlyn-Jones appeared on behalf of the Attorney General Mr M Morgan appeared on behalf of the Offender - - - - - - - - - - - - - - - - - - - J U D G M E N T Friday 2 September 2011 LORD JUSTICE PITCHFORD: 1. This is an application made on behalf of the Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to the court a sentence which he considers to be unduly lenient. We grant leave. 2. The offender is Lee Williams. He is 43 years of age, having been born on 28 November 1967. 3. On 24 March 2001 at the Isleworth Crown Court, before Miss Recorder Booth QC and a jury, the offender was convicted of a single count of conspiracy to supply a Class A drug (cocaine). On 27 May 2011 he was sentenced by the trial judge to twelve months' imprisonment suspended for two years, with a two year residence requirement. By that stage he had been in custody on remand for a period of 240 days. In circumstances we shall need to describe, the Recorder was persuaded to impose a suspended sentence order. 4. The evidence at trial revealed the following matters. On 22 September 2010 Customs officers in the United States intercepted a parcel on its way to 29 Baker House, Nightingale Road, Hanwell, London W7 1DS. The parcel was posted via Fed-Ex. 5. The parcel was carried into the United Kingdom in the hands of a British Airways pilot and handed immediately to officers of the UK Border Agency at Heathrow Airport on 25 September. The contents of the parcel were describe on the external packaging as a gift comprising a jacket and sweater. The packet was opened by police officers. Inside they found a box wrapped in polka-dot paper. Inside the box was a bubble-wrap envelope containing a large packet of a white powdered substance. The weight of the substance was 988 grams. When analysed the substance was found to be cocaine hydrochloride at a purity of 73%. It followed that the equivalent weight at 100% purity was 721 grams. 6. The officers resolved to allow the parcel to continue to its intended destination, the home of the offender. On 28 September a Metropolitan Police test purchase officer attended the address posing as a delivery man. The door was answered by a female, who was the offender's girlfriend. The officer explained that he was delivering a package for Mr Smith. The girlfriend offered to sign for it, but the officer told her that the recipient's signature was necessary. Her immediate response was to call out for the offender, shouting "Smithy". He appeared, confirmed that he was Mr Smith and signed for the parcel. 7. Very shortly afterwards uniformed officers entered the property. The contents of the box which we have described had by now been substituted. The offender was asked a number of questions. When asked what he could tell the officers about the bubble-wrap envelope, he said that it had come in the post and that he did not know what it was. He was asked why he had signed for the package. He said that Mr Smith was a friend of his. That is inconsistent with the conduct of the offender and his girlfriend at the time the package was delivered. The offender was asked how he knew Mr Smith. He said that he had met him in a bookmaker's in Greenford Road. He did not know where he lived. He did not have his telephone number. He said, "I don't call him, he calls me". 8. When arrested he gave a similar account. He said that on the Saturday immediately before his arrest the man had asked him if he would have a package delivered to his address in exchange for "a drink". The offender maintained that he had not asked what would be in the package. He said, "I didn't take much notice. .... I was just thinking about the money". He again named the man as Leonard Smith, but maintained that he only realised that his surname was Smith when the package arrived. That, too, is inconsistent with the behaviour of his girlfriend with the arrival of the package. He was asked how Mr Smith had come by his post code. The offender said that he had told him his address the previous Saturday, but that was all. He was asked to describe Mr Smith. He said that he was a white male in his thirties, 5'10" tall, with dark hair and of medium build. This account was subsequently repeated by the offender at his trial. 9. The evidence as to value was that at wholesale rates the powder would have been worth £52,500, and the street value was £145,600. 10. Having heard the evidence and the Recorder's summing-up, the jury retired at 10.33am on Thursday 24 March 2011. They returned at 12.56pm with their unanimous verdict of guilty. 11. The offender was a man of good character, save for a conviction for driving with excess alcohol in 2008, which prompted the Recorder to give to the jury a full good character direction. Unhappily, however, the offender had abused alcohol for much of his life. As a result he suffers from cirrhosis of the liver. 12. A psychiatric report was prepared for the sentencing hearing by Dr David Oyewole, a consultant psychiatrist at Northwick Park Hospital, Harrow. Dr Oyewole expressed (amongst others) the following opinions: the offender was not suffering from any mental illness; he presented as dysarthric (his formation of words was not clear). The doctor commented that this form of difficulty with speech was frequently to be seen after a stroke. As a matter of fact, two days after the jury returned their verdict, and while the offender was still on remand in prison, he suffered such a stroke following which he was transferred to hospital where he remained for about four weeks. As to his understanding and level of intelligence, the offender told Dr Oyewole that he did not know the month of the year. When asked the day of the week, he gave the wrong answer. On the other hand, the psychiatrist concluded: "8.6 .... it is unlikely that [the offender] has been an individual who has a moderate or severe learning difficulty." He concluded that it was "possible" that the offender had a borderline IQ and was still able to function reasonably well. He had been able to hold down unskilled jobs and to manage his flat. He would be able to get through a normal day and "understand and appreciate the significance of his interaction with others". If it was right that the offender was likely to be in the borderline IQ range, Dr Oyewole concluded that he would be a vulnerable person to anyone more sophisticated than himself. 13. We have been provided with a pre-appeal report. The offender informed its author that he had left school at 16, having obtained some CSE examinations. He subsequently acquired a City and Guilds Diploma in engineering. 14. It was common ground between the prosecution and the defence that conventionally a sentence for conspiracy to supply this quantity of cocaine resulting from an importation (subject to aggravating and mitigating features) would, after a trial, lie in the region of five to eight years' imprisonment. 15. It is submitted on behalf of the Attorney General that the purity, weight and value of the drug imported demonstrates the trust reposed in the offender by the importers. It is conceded that, while he was not an organiser, he must have been comparatively near the top of the supply chain. 16. On behalf of the offender it is submitted that the offender's IQ and psychological make-up were in all probability qualities upon which a middle man in the conspiracy was relying. The offender was trusted, not because he was a sophisticated member of the conspiracy, but because he was not. 17. It is accepted by the Attorney General that the following were relevant mitigating features: there were no relevant previous convictions; the offender was not an organiser; he was not the owner of the drugs; he had a comparatively low IQ suggestive that there was an element of vulnerability; he was in poor health (a long-term alcoholic, a history of heart and liver disease and a recent stroke). 18. At the outset of the sentencing hearing the Recorder recognised that on Aramah principles a substantial sentence of imprisonment was warranted. More than once during the course of submissions made to her on behalf of both the prosecution and the offender, the Recorder referred to the need for her to perform a public duty in respect of an offence such as that for which the offender had been convicted. The Recorder's attention was drawn to the Sentencing Council's Drug Offences Guideline Consultation dated March 2011. It was not suggested by Mr Morgan that this guideline had been brought into effect, but it was provided to the Recorder for her information. The proposal upon which consultation was sought was that quantities of drug and the identification of the nature of the offender's role should determine culpability, and accordingly the starting points and ranges for that offending. Having seen the consultation guideline, we accept Mr Morgan's submission that it seeks to represent what is already sentencing practice. A supply of the present quantity of drug (ie 700 grams or so at 100% purity) would be regarded by the guideline, if published, as "large". Upon the Attorney General's assessment, the offender would be treated as playing a significant, rather than a leading or subordinate role. He would, as submitted on his own behalf, be treated as playing a subordinate role for the reasons to which we have already referred. If the Recorder was applying the guideline which was under consultation, the starting point would lie either at eight years or six-and-a-half years' custody, and the range would be five years to nine years, depending on the assessment of the offender's role. 19. We should repeat that this court has observed in R v Valentas and Tabuns [2010] EWCA Crim 200 that the obligation to have regard to sentencing guidelines applies only to definitive guidelines and not to a consultation document. The Lord Chief Justice advised that it was unwise to attempt to anticipate the contents of the final publication. 20. The Recorder wondered whether it would be open to her to impose a sentence in the range of three-and-a-half to five years' imprisonment, having regard to the mitigating features which we have identified. Mr Holland, who prosecuted, conceded that the upper end of that range might be appropriate in this case. Mr Morgan for the offender agreed that the range might be three-and-a-half to five years' custody. Mr Morgan invited the Recorder to consider the extensive mitigation. He pointed out that the offender had spent 240 days on remand in custody (the equivalent of a sentence of 16 months' imprisonment). He invited the Recorder to consider imposing a sentence of twelve months' imprisonment suspended for up to two years, which would have made an "aggregate sentence" (as it was put to the Recorder) of two-and-a-half years' imprisonment "in essence". The Recorder accepted this invitation. 21. In her sentencing remarks the Recorder recognised that the jury had rejected the defence that the offender was an innocent dupe and had been sure that he lent himself to a conspiracy to receive at his home a Class A drug. On the other hand, she had been made aware of the offender's state of health and she had a doubt whether the offender had understood the depth of his involvement, and in particular the quantity of drug at 100% purity which he had agreed to receive. The Recorder concluded that he may not have realised how much Class A drug would be contained in the parcel to be delivered to him. She said that that view was reinforced by the contents of the psychiatric report. She was (we paraphrase) persuaded that there was an element of vulnerability about the offender. The Recorder expressly took into account, as she was invited by Mr Morgan, the fact that the offender had already spent 240 days on remand. She concluded: "I am prepared to sentence you on the basis .... that in the normal course of events you would be in the range not of large quantity but of medium quantity. You are definitely in the subordinate role, which puts the range at three-and-a-half years to five years' custody." She gave a further discount for the fact that the offender may not have realised the precise quantity which he was obtaining, but proceeded to sentence on the basis that he thought that he was receiving a very small amount of the drug. She then expressly accepted Mr Morgan's submission that in order to achieve the appropriate sentence she could add on to the 240 days served on remand a suspended sentence of twelve months' imprisonment. 22. With respect to the Recorder, there is a difficulty in her reasoning which led to the suspended sentence. In R v Fairbrother [2008] 2 Cr App R(S) 43, this court held that in the event that a suspended sentence imposed after 4 April 2005 is activated, the time spent on remand pending imposition of the order falls to be taken into account. A similar conclusion has been reached by the Divisional Court in Carruthers v Hampshire Probation Service [2010] EWHC 1961 (Admin) (Moses LJ and Wyn Williams J, the latter of whom gave the leading judgment). If, therefore, the offender were to be subsequently in breach of the order imposed by the Recorder, he would ordinarily be entitled, under section 240 of the Criminal Justice Act 2003 , to have counted against the period of twelve months he would be ordered to serve, the 240 days that he had spent on remand in custody. That being the case, the rationale for imposing this sentence in the first place was undermined. 23. It follows that if the learned Recorder regarded a sentence of two-and-a-half years' imprisonment (or above) as appropriate, the question of a suspended sentence should never have entered her thinking. 24. This court has been provided with a medical report dated 26 May 2011, in which it is confirmed that the offender suffers from a dangerous cirrhosis of the liver related to his heavy alcohol consumption. He now consumes one pint of Guinness a week. He also has a background of ischaemic heart disease. The offender has a 1-4% chance of the development of carcinoma; but provided he does not consume alcohol, he is likely to have several years of reasonable health. 25. We consider that the Recorder was entitled to reach the conclusions that she did concerning mitigation of the offence and the personal mitigation for the offender. In the most exceptional of circumstances it might be possible for the court to take an exceptionally lenient course. In Attorney General's Reference No 8 of 2007 [2008] 1 Cr App R(S) 1 the court, on behalf of whom Lord Phillips CJ gave the judgment, concluded that the trial judge had been entitled to find that the offender (a young woman of good character) was manipulated and utterly under the control of her partner who was 20 years older and a malign influence upon her. Accordingly, he had been entitled in the special circumstances of that case to impose a non-custodial sentence. 26. We consider that the present case is not in that exceptional category. We consider that the Recorder was persuaded, against her initial and better judgment, to impose an unduly lenient sentence. Giving full effect to the features of mitigation which she identified, we consider that the least appropriate sentence, after a trial, was one of four years' imprisonment. There was simply no evidence that the offender's will was overborne by another. The finding of the jury was that he knew he was importing Class A cocaine in a quantity of which he may not initially have been aware. The verdict of the jury identified the limit of the naivety which could properly be attributed to him. 27. The importation of a Class A drug has a public dimension of such importance that immediate and lengthy sentences of imprisonment must be the expectation of those implicated, save in such exceptional circumstances as we have identified. 28. We have considered the effect of requiring the offender, in his indifferent health, to surrender to custody, having been released in consequence of the order imposed by the sentencing judge. We conclude that a modest further allowance should be made for the anxiety which must inevitably have accompanied the offender's knowledge of the risk of return to prison. 29. We shall quash the suspended sentence order and impose in its place a sentence of three-and-a-half years' imprisonment. That sentence will commence when the offender surrenders to custody. We order that the offender surrenders to custody by 4pm today at Acton Police Station. We direct that the period of 240 days spent on remand by the offender should count toward his sentence, pursuant to section 240 of the Criminal Justice Act 2003 . ________________________________
{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["conspiracy to supply a Class A drug"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["custody on remand"], "RemandCustodyTime": ["240 days"], "SentCourtName": ["data not available"], "Sentence": ["twelve months' imprisonment suspended for two years, with a two year residence requirement."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["born on 28 November 1967."], "OffJobOffence": ["data not available"], "OffHomeOffence": ["home of the offender"], "OffMentalOffence": ["long-term alcoholic"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Customs officers in the United States intercepted a parcel", "psychiatric report"], "DefEvidTypeTrial": ["defence that the offender was an innocent dupe and had been sure that he lent himself to a conspiracy"], "PreSentReport": ["data not available"], "AggFactSent": ["£52,500, and the street value was £145,600."], "MitFactSent": ["vulnerability", "poor health"], "VicImpactStatement": ["data not available"], "Appellant": ["Attorney General"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["sentence"], "AppealGround": ["unduly lenient."], "SentGuideWhich": ["section 240 of the Criminal Justice Act 2003.", "Sentencing Council's Drug Offences Guideline Consultation", "section 36 of the Criminal Justice Act 1988"], "AppealOutcome": ["quash the suspended sentence order and impose in its place a sentence of three-and-a-half years' imprisonment."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["We conclude that a modest further allowance should be made for the anxiety which must inevitably have accompanied the offender's knowledge of the risk of return to prison."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["conspiracy to supply a Class A drug"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["240 days"], "SentCourtName": ["data not available"], "Sentence": ["twelve months' imprisonment suspended for two years, with a two year residence requirement."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["42"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Had mental health problems"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Expert report", "Authority evidence"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["Financial gain /value"], "MitFactSent": ["poor health", "vulnerability"], "VicImpactStatement": ["data not available"], "Appellant": ["Attorney General"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["sentence"], "AppealGround": ["unduly lenient."], "SentGuideWhich": ["section 240 of the Criminal Justice Act 2003.", "Sentencing Council's Drug Offences Guideline Consultation", "section 36 of the Criminal Justice Act 1988"], "AppealOutcome": ["quash the suspended sentence order and impose in its place a sentence of three-and-a-half years' imprisonment."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["We conclude that a modest further allowance should be made for the anxiety which must inevitably have accompanied the offender's knowledge of the risk of return to prison."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
119
Case No: 201205221 C5 and 201205223 C5 Neutral Citation Number: [2013] EWCA Crim 2356 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Teesside Crown Court His Honour Judge Crowson T201207045 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/12/2013 Before : LORD JUSTICE FULFORD MR JUSTICE POPPLEWELL/ and HIS HONOUR JUDGE GILBERT - - - - - - - - - - - - - - - - - - - - - Between : Regina - and - Asad Mahmood and Majid Khan - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr R Howat (for Mahmood) (instructed by Middlewick Solicitors) and Mr S Uttley (for Khan) (instructed by ADL Solicitors) for the Appellants Mr R Whittam QC (who did not appear in the court below) and Mr R Masters (instructed by Crown Prosecution Service ) for the Respondent Hearing date: 8 November 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Fulford : Introduction 1. On 9 th August 2012 at the Crown Court in Teesside the appellant Majid Khan (aged 40) and Asad Mahmood (aged 45) were convicted of conspiracy to supply a class A drug, diamorphine, within the Teesside area (count 1 on the indictment they faced with other defendants). On 23 November 2012 Khan was sentenced to 15 years’ imprisonment and Mahmood to 9 years’ imprisonment. Khan was also convicted on 9 August 2012 of conspiracy to supply a class B drug for which he received a consecutive sentence of 18 months’ imprisonment, making a total sentence in his case of 16 years 6 months. 2. They had numerous co-accused. Imran Bashir pleaded guilty to count 1 on re-arraignment after the jury was sworn and was sentenced to 7 years’ imprisonment, to be served consecutively to an unrelated sentence of 14 years’ imprisonment. Mohammed Akram was convicted of counts 1 and 2 and sentenced to a total of 10 years’ imprisonment. He was in breach of a suspended sentence, four months of which were activated, to be served consecutively to the present sentence. Qasir Razaq was convicted of count 1 and sentenced to 9 years’ imprisonment. Asif Hussain pleaded guilty to count 1 on re-arraignment and was sentenced to a term of imprisonment of 8 years 1 month. Terence Agiadis pleaded guilty on re-arraignment to count 1 and was sentenced to 4 years 6 months’ imprisonment. Tobias Williamson was convicted of count 1 and sentenced to 3 years 7 months’ imprisonment. Allyah Bashir pleaded guilty on re-arraignment to money laundering (count 3) and sentenced to a Community Order of 150 hours unpaid work to be completed within 12 months. Urfan Hussain, Ali Rafiq, Palminder Chohan and Karl Waterfield were acquitted of count 1 and discharged. Majid Hussain pleaded guilty to count 1 and was sentenced to 9 years’ imprisonment. 3. Before this court Asad Mahmood appeals against conviction by leave of the single judge, limited to ground 1, and he renews his application for leave in respect of ground 2. He also renews his applications for an extension of time (2 weeks) for leave to appeal against sentence. The grounds of appeal as regards sentence are dated 11 th December 2012 and the Form “NG” was signed 13 th December 2012; the grounds were received on 3 rd January 2013. 4. Majid Khan also appeals against conviction by leave of the single judge, limited to grounds 1 and 3. He renews his application in respect of ground 2 for which the single judge refused leave to appeal. He also renews his applications for an extension of time (2 months) for leave to appeal against sentence after refusal by the same single judge. Counsel disputes that the application was out of time. The perfected grounds relating to conviction and sentence, although dated 22 nd November 2012 were not received by the court until 7 th February 2013 (see the Criminal Appeal Office date stamp). 5. In summary, the prosecution of these various offenders followed an investigation which had commenced in Cleveland and eventually extended to Lancashire and Bedfordshire. The indictment covered the period from early June 2011 to January 2012. The prosecution case was that each of the defendants was involved in a conspiracy to supply heroin (count 1). It was alleged that Majid Khan led the principal criminal organisation, employing Asif Hussain as his lieutenant until the latter’s arrest in July whereupon Qasir Razaq took over. Asad Mahmood was working for his cousin, Imran Bashir, who, although in prison, was organising the sale of heroin to Majid Khan in Middlesbrough. Almost as a sideline, it was alleged Majid Khan had also been involved in the supply of cannabis (count 2). 6. The issues raised on these appeals and renewed applications are: Mahmood i) The judge erred in admitting the recordings of the telephone conversations from prison, which it is suggested were inadmissible under the Regulation of Investigatory Powers Act 2000 (“RIPA”). The core argument in this regard is that since all telephone calls from inmates in HMP Manchester (apart from to the Samaritans and to defence lawyers) were recorded as a result of a general or a blanket policy, they were inadmissible under this statutory provision. ii) The judge should have upheld the defence submission that he had no case to answer on count 1. The count had been amended to read that the named defendants “between the 1 st day of June 2011 and the 11 th day of January 2012 conspired together and together with persons as yet unknown, to supply a quantity of Diamorphine, a controlled drug of Class “A” within the Teeside area ”. The reference to “within the Teeside area” had not formed part of the count as originally drafted. In summary, it is suggested that there was no evidence that the appellant was aware that the drugs were to be supplied to that particular location or that he was part of an agreement which was directed at that particular area. iii) As to sentence, the 9 year prison term was manifestly excessive and that there is an unjustifiable disparity between the sentence imposed on Mahmood and Imran Bashir. Khan iv) The judge should have excluded the evidence of the telephone records. v) The judge wrongly admitted the evidence of the intercepted calls and Mrs Bashir’s telephone number once the prosecution had decided not to proceed against her on count 1. vi) The prosecution failed in its duty of disclosure to a degree that deprived the appellant of a fair trial. The Facts Heroin 7. On Friday 24 June 2011 the police were observing the Shine carwash business in the centre of Middlesbrough, which was run by Majid Khan. It was alleged that Asif Hussain handed a quantity of money to Majid Khan. Asif Hussain then left the premises in a Vauxhall Vectra taxi which was driven to Clough Close where it stopped. He then travelled to a second location called Vernon Court in Stainton Village. At 3.35pm Tobias Williamson arrived at Vernon Court and he exchanged something with Asif Hussain. Williamson was followed when he rode off on a mountain bicycle. Although the police briefly lost sight of him, he was eventually detained. Agiadis contacted him at this time on his mobile telephone. No package was found and it was suspected he had thrown it away shortly before he was stopped. A number of drug-related items were found in Williamson’s room, including plastic bags and scales carrying traces of diamorphine and cocaine. 8. The Vectra taxi, in the meantime, was driven to the Shine premises, arriving at 3.45pm. Agiadis arrived shortly after Williamson’s arrest and was seen to use his telephone. Asif Hussain then returned, followed minutes later by Majid Khan. The prosecution relied upon the schedules of telephone activity between Majid Khan, Asif Hussain, Tobias Williamson and Terence Agiadis in the hours prior to the arrival of the Vectra at Vernon Court and following Williamson’s arrest, in conjunction with the observation evidence, to support the contention that what had occurred was an arrangement for the purchase and delivery of heroin. It was alleged that Agiadis had bought a quantity of heroin from Majid Khan using Asif Hussain as the go-between, and Williamson had been delegated by Agiadis to collect and store the drugs. It was said that Agiadis tried to distance himself from these events following Williamson’s arrest. 9. 188 Clough Close (which it was alleged was a safe house for drugs) was apparently unoccupied but it was visited regularly especially by Asif Hussain who appeared to be a key holder. He visited the premises on a number of occasions in July 2011, staying a few minutes each time, in the period leading up to his arrest on 22 July 2011 when just under a kilogram of heroin was in his possession. At the time the premises were searched there was no forensic evidence linking the premises with drugs. CCTV coverage of the premises had not been continuous due to apparent lighting problems, but there was evidence of visits by Asif Hussain, Mohammed Akram and Majid Khan, the last visit occurring on 12 August 2011. The prosecution alleged that by 24 August 2011 Clough Close was no longer being used as a safe house and had been replaced by a flat complex known as the Potteries, and it was alleged that Majid Khan, amongst others, could be identified on relevant CCTV footage. 10. Majid Khan arrived at Shine shortly after midday on 22 July 2011 driving a black Volkswagen Touareg. At about 3.30pm he spoke with Asif Hussain outside the premises. Asif Hussain left in a yellow van bearing the Shine logo followed by Majid Khan in the Touareg. At 4.02pm the Touareg stopped in Angle Street where it was approached by an Asian male. A blue minibus, bearing the logo of Blueline taxis licence number B17BYS, pulled up next to it. Thereafter, the police followed the minibus as it headed south towards Manchester. Urfan Hussain was driving with Asif Hussain in the passenger seat. The vehicle went to an address in Brewerton Road in Oldham. It was met by two other vehicles and it was led it in convoy through the streets of Oldham. This appellant was in one of these cars, a Ford Focus. In due course (about 20 minutes later) the minibus headed back towards Middlesbrough, and en route a marked police car directed it to stop in a layby on the A19. As a uniformed officer approached the driver’s door, the minibus drove off and the police car followed in pursuit. Eventually the minibus stopped on the side of the road, where Urfan Hussain was arrested. Asif Hussain got out and ran into undergrowth carrying a grey drawstring bag which he threw away, the contents of which were later found to contain two taped packages weighing 492 grams and 593 grams, consisting of diamorphine at 17% purity. 11. In July 2011 Imran Bashir was serving a 14-year term of imprisonment for conspiracy to supply heroin in HMP Manchester. The prosecution alleged that he was using the prison telephone system to continue supplying drugs through his wife and relatives. Each prisoner was allocated a unique PIN number which had to be entered in order to make telephone calls to approved numbers outside the prison. These were recorded by the authorities and retained for a period of time. Bashir made a number of calls to his wife Aliyah who, on his instructions, then made further calls to other conspirators, whose numbers had not been authorised, in order to establish a conference call. The individual whom Aliyah called most frequently in this context was Majid Khan. 12. Bashir’s cousin and Majid Khan had been due to visit him in prison on 21 July 2011. Bashir telephoned his wife from prison at about 11.00am. She told him that she had sent ‘Madge’ a text the previous day in order to let him know that he was expected. When she telephoned to confirm the arrangement, Majid Khan told her that something had come up and that he could not make it. Bashir telephoned his wife at 2.30 pm asking to be put through to Fat Boy. Once contact was made, he asked Majid Khan if he had spoken to the Gora (“the white man”) and someone called Lala. Khan had not done so and he was instructed to speak with them. He apologised for being unable to visit and that afternoon Asad Mahmood visited Bashir. Bashir telephoned his wife at 8.00pm that evening. He asked to be put through to Majid Khan, and during the conversation that followed he told Khan that his Masair (an Urdu word for cousin) would be ringing him. When asked which one, Bashir indicated that it was the tall one [Asad Mahmood is 6 feet 2 inches]. Bashir asked if Khan would help Masair, indicating that he would have something for him and that Masair would call in 15 to 20 minutes. Asad Mahmood subsequently called Khan for the first time at 9.43pm and they remained contact the following day. 13. On 22 July 2011, the day of the seizure in the area of the A19, Bashir asked his wife to ring Fat Boy at 11.49am, and he wanted to know if Khan had spoken to his cousin. Aliyah rang Khan and confirmed to Bashir that they had spoken. 14. On 23 July 2011, at about 11.30am, Bashir telephoned his wife. He instructed her to ring Fat Boy. She asked him to wait, stating that he had pure numbers for him. Eventually Majid Khan responded. Bashir asked what was happening and received the reply, “Fuck all, man.” He was then told, “They got caught last night, mate.” When asked who, Bashir was told ‘Chacha’ (Asif Hussain’s nickname). He was told that they had gone to meet Masair. Bashir asked ‘With that girl?’ to which the answer was yes. Bashir then asked if both the girls were with him, to which the reply was “I think one and a half.” He was told that they had been held in Khan’s area and that they had been returning. Khan had also said that he did not know if his name had been mentioned. The prosecution contended that the mention of “girls” was a coded reference to kilograms. 15. The prosecution also adduced evidence that Majid Khan had been in contact with Urfan Hussain (the driver) and Asif Hussain. These three men had travelled together to Amsterdam on 20 May 2011. Amongst the telephone calls made on 22 July 2011 there was a series at around 6.00pm between Asad Mahmood and Karl Waterfield from Oldham and Asif Hussain who was travelling with Urfan Hussain. There was significant telephone contact between the appellant and Majid Khan. These telephone calls continued after the alleged transfer had been made, including a number of calls following the arrests. The prosecution adduced expert evidence in which the telephone contacts, together with the frequency and the timing of calls, were synchronised with the observation evidence. The prosecution alleged that 10 telephone handsets were linked to Majid Khan. 16. The prosecution introduced evidence of telephone contact between Majid Khan and Majid Hussain on 24 August 2011. During the morning, the former was in Redcar at a carwash called Bubbles where Qaisr Razaq was employed. Majid Hussain, contacted Palminder Chohan who was in Bedford. He drove north from South East England shortly after 12.30pm in a Volkswagen Polo, and CCTV footage showed him at an M1 service station just south of Sheffield at 2.32pm. From there he drove north joining the A 19. Chohan kept in touch with Majid Hussain who in turn kept in touch with Majid Khan. Majid Khan left the Shine premises in a black Ford Focus at 3.36pm. Chohan arrived at Levick Crescent in Middlesbrough and telephoned Majid Hussain at 4.08pm. Thereafter, there was a telephone call from Majid Hussain to Majid Khan, and thereafter Chohan drove to Lambeth Road where he made another call. At 4.21pm Majid Khan and Qaisr Razaq drove to Westmoreland Road. During a number of calls that followed, Chohan was parked nearby in Lambeth Road. They met up at 4.25pm and travelled in the Polo to Brompton Street. Majid Khan, who was followed by Chohan, opened the boot, and he held a blue carrier bag apparently containing something heavy. Mohammed Akram arrived in a taxi. He went to the front passenger seat of the Polo where Razaq was sitting before returning to the taxi. A black Ford Focus parked at the rear of the Polo. The Polo and the Focus then drove away at the same time. The Focus was next seen in Linthorpe Village where Majid Khan had left his own vehicle. He was spotted on foot without the blue bag. Majid Khan returned to Shine, where he met Murad Ali and Qasir Razaq. At 5.56pm all three departed in Majid Khan’s vehicle, which was caught on an automated traffic camera heading in the direction of Hartlepool. The prosecution alleged that the telephone contacts demonstrated that a man by the name of Peter Clark [who did not appear on the indictment] had been engaged to test the purity of the heroin, which was at such a low level that arrangements were made for the drugs to be returned on 27 August 2011, to which we now turn. 17. On 27 August 2011 Mohammed Nadeem, a taxi driver from Bedford, was in contact with Majid Hussain. He drove his taxi to Middlesbrough, setting off at about midday. At 1.30pm the same day, Majid Khan and Atif Hussain went to Holme House Prison in Stockton to visit Asif Hussain, Atif’s brother, who was on remand following his arrest on 22 nd July. Majid Khan gave the authorities his parents’ address in Middlesbrough as his home address, although he was living with his girlfriend in Thornaby. Before entering the prison he tried to call Majid Hussain. Following the visit, Majid Khan eventually returned to Thornaby arriving at 4.31pm. Nadeem reached Middlesbrough before 5.20pm. He stopped his vehicle in Fairfield Avenue and got out. Majid Khan passed Nadeem’s vehicle on foot on the other side of the road before entering a William Hill bookmaker’s on Acklam Road at the junction with Fairfield. At 5.32pm Nadeem opened the boot of his car and appeared to be handling items inside, before driving to the bookmakers, which he entered. Both were captured on internal CCTV using mobile phones to contact Majid Hussain in Bedford (based on billing records). They left together, and drove in Nadeem’s vehicle to a block of flats called Rockingham Court at 6.10pm. Majid Khan had telephoned Qasir Razaq a few minutes earlier. Within minutes Razaq arrived in the Ford Focus. Majid Khan at this stage had a black holdall. He walked away from the car to the Nadeem’s taxi where the bag was placed in the boot. Nadeem drove south out of Middlesbrough. Police stopped him at the Exelby service station on the A19. A search of the boot revealed a small compartment containing a small package and a satellite navigation device. Inside the package were two smaller packages with a total of 2 kilograms of heroin of 10% to 11% purity wrapped in part of a Daily Star newspaper dated 24 August 2011. The newspaper had a cut which the prosecution alleged was consistent with the drugs having been tested for purity. Cannabis 18. On 19 October 2011 a man giving the name Rafiq Ali telephoned Cleveland Auto Services in Newport seeking to hire a car for three days. Shortly afterwards he completed the hire agreement for a Ford Mondeo and produced a driving licence, bank statement and credit card. About two hours after the completion of the rental agreement, the vehicle was driven to Canterbury Grove, a residential cul-de-sac, where a black and yellow Vauxhall Astra was already parked, containing Majid Khan and Mohammed Akram. The vehicles were parked “bumper-to-bumper”. Akram walked to the rear of the Mondeo, opened the tailgate and took out a large black bag which he placed in the rear of the Astra before getting back into the passenger seat. Both cars then left the cul-de-sac. The Astra pulled up in Linthorpe Road. Akram got out and went into the One Stop Shop. He came out after a couple of minutes carrying a white carrier bag. At 5.00pm the Astra was stopped by an unmarked police vehicle. Officers noticed a strong smell of cannabis and told the occupants that the vehicle was going to be searched for controlled drugs. They saw the black bin liner on the rear seat, inside of which were two large clear grip seal bags containing a total of 980 grams of herbal cannabis. Akram was arrested and cautioned and he denied knowledge of the bag, indicating he had just been picked up. Majid Khan made no reply. A white carrier bag contained two packets of clear plastic food bags alleged by the prosecution to have been acquired to divide the cannabis into smaller packages. In interview Majid Khan declined to answer questions; Akram denied knowing anything about the cannabis stating that he was being given a lift. He agreed that he smoked cannabis regularly but had not noticed a smell of cannabis in the vehicle. The Respective Cases for the Appellants 19. The defence case for the appellants on count 1 was that the prosecution was presenting a distorted picture of the evidence, which – properly interpreted – was consistent with their innocence. In respect of count 2, Mohammed Akram indicated that the cannabis seized belonged to him alone and had nothing to do with the other defendants. It was contended there was no conspiracy to supply cannabis. 20. Majid Khan did not give evidence. His case was that the prosecution evidence was flawed. There was no scientific link between him and any of the seized drugs; he was not linked to any drug’s paraphernalia; and there was no financial evidence in respect of either count. 21. Asad Mahmood gave evidence, and said he was a self-employed chauffeur. He accepted that he had been in telephone contact with Mr and Mrs Bashir, Majid Khan and Asif Hussain, and he had visited Bashir in prison (who was his maternal cousin). Although he denied being known by the nickname Masair, he agreed that he was referred to in the prison tapes as Asad. He provided explanations for the various telephone calls, which he said were not related to drugs. He had been in Oldham to act as a guide to the Royal Piri Piri restaurant. It was submitted on his behalf that there was no evidence that he was involved with anyone from Middlesbrough or had been involved with drugs. The Issues at Trial 22. The issue for the jury on count 1 was whether the combination of the surveillance and telephone evidence, coupled with the seizure of the drugs was sufficient to prove the defendants conspired to supply heroin within the Teesside area. In respect of count 2, in light of the seizure on 19 th October the issue was whether Majid Khan and Rafiq Ali, along with Akram, were involved in a conspiracy to supply cannabis. The Grounds of Appeal Against Conviction Asad Mahmood: Ground 1 23. The appellant Mahmood has leave to appeal the conviction on count 1 on the basis that the judge erred in admitting evidence of telephone calls from prison. The core argument in this regard, on which certain other subsidiary submissions in this context are dependent, is that since all telephone calls from inmates from the two prisons, HMP Manchester and HMP Full Sutton (apart from to the Samaritans and to defence lawyers), were recorded as a result of a general or a blanket policy, they were inadmissible under RIPA. Asad Mahmood: Ground 2 (renewed) 24. Additionally, Mahmood seeks leave to appeal his conviction on the renewed ground that the learned judge wrongly dismissed his application at the close of the prosecution case that he had not case to answer on count 1. The count had been amended to read that the named defendants “between the 1 st day of June 2011 and the 11 th day of January 2012 conspired together and together with persons as yet unknown, to supply a quantity of Diamorphine, a controlled drug of Class “A” within the Teeside area ”. The reference to “within the Teeside area” had not formed part of the count as originally drafted. In summary, it is suggested that there was no evidence that the appellant was aware that the drugs were to be supplied to that particular location or that he was part of an agreement which was directed at that particular area. Majid Khan: Ground 1 25. Majid Khan has leave to appeal the conviction on count 1 on the basis that the court was wrong to admit the evidence of the prison telephone recordings. Majid Khan: Ground 2 (renewed) 26. Additionally, Majid Khan seeks leave to appeal his conviction on the renewed ground that the learned judge wrongly admitted the evidence of these calls and Mrs Bashir’s telephone number once the prosecution had decided not to proceed against her on count 1. Majid Khan: Ground 3 27. Majid Khan has leave to appeal on the basis that the prosecution failed in their duties of disclosure to a degree that deprived the appellant of a fair trial. Discussion Asad Mahmood: Ground 1 (the telephone calls) 28. As set out above, the prosecution relied on the record of telephone calls made by Bashir from to his wife, who in turn set up conference calls to Majid Khan and others. Although the telephone calls were not made to Mahmood, they added to the case against him because he was alleged to be the “Masair” who was referred to in an incriminating context. 29. On the basis that the calls were intercepted when they were recorded, it was argued they were inadmissible as evidence in these proceedings pursuant to RIPA. 30. The relevant extracts from this legislation are as follows: 1 Unlawful interception. (1) It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of— […] (b) a public telecommunication system. (2) It shall be an offence for a person— (a) intentionally and without lawful authority, and (b) otherwise than in circumstances in which his conduct is excluded by subsection (6) from criminal liability under this subsection, to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of a private telecommunication system. (3) Any interception of a communication which is carried out at any place in the United Kingdom by, or with the express or implied consent of, a person having the right to control the operation or the use of a private telecommunication system shall be actionable at the suit or instance of the sender or recipient, or intended recipient, of the communication if it is without lawful authority and is either— (a) an interception of that communication in the course of its transmission by means of that private system; or (b) an interception of that communication in the course of its transmission, by means of a public telecommunication system, to or from apparatus comprised in that private telecommunication system. (4) Where the United Kingdom is a party to an international agreement which— (a) relates to the provision of mutual assistance in connection with, or in the form of, the interception of communications, (b) requires the issue of a warrant, order or equivalent instrument in cases in which assistance is given, and (c) is designated for the purposes of this subsection by an order made by the Secretary of State, it shall be the duty of the Secretary of State to secure that no request for assistance in accordance with the agreement is made on behalf of a person in the United Kingdom to the competent authorities of a country or territory outside the United Kingdom except with lawful authority. (5) Conduct has lawful authority for the purposes of this section if, and only if— (a) it is authorised by or under section 3 or 4; […] 4. Power to provide for lawful interception. (1) Conduct by any person (“the interceptor”) consisting in the interception of a communication in the course of its transmission by means of a telecommunication system is authorised by this section if— […] (4) Conduct taking place in a prison is authorised by this section if it is conduct in exercise of any power conferred by or under any rules made under section 47 of the Prison Act 1952 […]. […] 31. In this case, the prison service intentionally intercepted communications in the course of their transmission by means of a telecommunications system. Whether it was a public or a private system at the point of interception is a question we need not resolve, as it has no material bearing on this appeal, although we note that the prosecution contends that section 1(2) of RIPA applies to this case, because the interception occurred on the “private side” of the telecommunications system before it “attached” to the British Telecom network. Either way, the prosecution submits that section 4 means the interception is lawful if, inter alia , it took place in a prison and it was pursuant of any power conferred by or under rules made under section 47 Prison Act 1952 (see section 4 above). 32. The relevant rules are the Prison Rules 1999. Rule 34 was amended at the same time Rule 35A was introduced in the Prison (Amendment) (No 2) Rules 2000). It provides: (1) Without prejudice to sections 6 and 19 of the Prison Act 1952 and except as provided by these Rules, a prisoner shall not be permitted to communicate with any person outside the prison, or such person with him, except with the leave of the Secretary of State or as a privilege under rule 8. (2) Notwithstanding paragraph (1) above, and except as otherwise provided in these Rules, the Secretary of State may impose any restriction or condition, either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons if he considers that the restriction or condition to be imposed— (a) does not interfere with the convention rights of any person; or (i) is necessary on grounds specified in paragraph (3) below; (ii) reliance on the grounds is compatible with the convention right to be interfered with; and (iii) the restriction or condition is proportionate to what is sought to be achieved. (3) The grounds referred to in paragraph (2) above are— […] (c) the prevention, detection, investigation or prosecution of crime; (d) the interests of public safety; (e) securing or maintaining prison security or good order and discipline in prison; […] 33. Rule 35A sets out: (1) The Secretary of State may give directions to any governor concerning the interception in a prison of any communication by any prisoner or class of prisoners if the Secretary of State considers that the directions are – (a) necessary on grounds specified in paragraph (4) below; and (b) proportionate to what is sought to be achieved. (2) Subject to any directions given by the Secretary of State, the governor may make arrangements for any communication by a prisoner or class of prisoners to be intercepted in a prison by an officer or an employee of the prison authorised by the governor for the purposes of this rule (referred to in this rule as an “authorised employee”) if he considers that the arrangements are - (a) necessary on grounds specified in paragraph (4) below; and (b) proportionate to what is sought to be achieved. 34. By rule 35A(6): For the purposes of this rule “interception” - in relation to a communication by means of a telecommunications system, means of any action taken in relation to the system or its operation so as to make some or all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication; and the contents of a communication are to be taken to be made available to a person while being transmitted where the contents of the communication, while being transmitted, are diverted or recorded so as to be available to a person subsequently; […] 35. The relevant directions were contained, first, in the Security Manual (PSO 1000) and, thereafter, in the National Security Framework (PSI 48/2005). The current policy or directions on the interception of communications in prisons (as provided in the extracts from the relevant documents for this appeal) includes the requirement that local instructions must set out arrangements for recording and monitoring the telephone conversations of all category A prisoners, including potential and provisional category A prisoners. 36. Mr Clifford (a senior executive officer in the Security Group based in the headquarters of the National Offender Management Service) additionally set out the following in his witness statement of 22 June 2012: “3. In 1995, Home Office Ministers decided that the existing prisoner cardphone system for prisoner telephone communications did not afford victims and witnesses of crime sufficient protection from unwarranted attention by prisoners. At the same time, the technology used for cardphones was becoming obsolete, which led to the development of the prison PIN phone system. All establishments now have the PIN system (or similar) in place and governors have introduced security regimes appropriate to the security concerns of the establishment. […] 4. The PIN system intercepts and records all telephone calls made by prisoners, although those subject to legal professional privilege cannot be listened to routinely.” (emphasis added) 37. It follows that the relevant directions provide for the PIN system, which, inter alia, records all telephone calls made by prisoners, and safeguards are in place to protect calls that are subject to legal professional privilege and, we were informed in oral submissions, calls to the Samaritans (the prisoners submit the telephone numbers of their lawyers and once they are confirmed to be legitimate the calls are not recorded; the same applies to the telephone number or numbers used by the Samaritans). 38. The argument advanced by Mr Howat on behalf of Mahmood is that the blanket interception of calls of all classes of prisoners constitutes a breach of RIPA; it is said to be ultra vires rule 35A; and it is “outside the scope” of section 4(4) of the Act. Mr Howat’s central submission is that the wording of the relevant part of the rule – “ The Secretary of State may give directions to any Governor concerning the interception in a prison of any communication by any prisoner or class of prisoners […]” – has the effect of excluding a blanket policy because the entire prison population is not covered by a rule which allows the Secretary of State to give directions for particular prisoners or classes of prisoners. Mr Howat contended that interpreting the rule so as to cover all prisoners “does too much damage to the English language”. 39. It is to be observed that the lawfulness of the PIN system has been the subject of consideration by the courts in other cases. In The Queen on the Application of Taylor v. The Governor of her Majesty’s Prison Risley [2004] EWHC 2654 (Admin) , the court considered a challenge to the blanket nature of the PIN system (known otherwise as a “call enabling system”) which limits the numbers that prisoners are able to call to a fixed amount; each number has to be submitted for approval prior to being “enabled”. Although the court was not concerned with the aspect of the PIN system relating to the recording of telephone calls, McCombe J observed as follows: “28. In the present case, adopting (a) greater intensity of review […], it seems clear that the objective of the Governor’s decision made under the Rules is the restriction of prisoner telephonic communication with the community at large in a manner that would be calculated to encourage or promote illegal drug use in prison and communication with the outside community in areas that would foster crime in other outside circumstances. The measures adopted here are clearly and rationally connected with that objective. It cannot reasonably be gainsaid that the ability of the prison management to control telephone communication can facilitate the prevention of undesirable communications calculated to lead to the consequences of increased drug abuse in prison and criminal activity outside it.” 40. The judge went on to note that on the facts of the case before him relating to the prison and the occasion in question, the PIN system was necessary and proportionate to achieve just set out objective. 41. In Regina v Tunde Abiodun [2005] EWCA Crim 09 , a case in which the recording of intercepted prison telephone calls was considered by the court, the principal issues under consideration were whether there was evidence that the Secretary of State had applied his mind to the relevant statutory provisions and whether the directions that had been given were necessary and proportionate [41]. In the course of giving the judgment of the court, Clarke LJ set out: “52. […] the PIN system, introduced in 2001, records all calls. Measures were in place, however to ensure that any listening which took place was justifiable and proportionate, having regard to the rules […]. In our judgment both the PIN system and the arrangements made for listening to the calls were […] a proportionate response to balancing security and privacy. There is certainly ample evidence that thought was given to both those aspects of the matter and there is certainly no evidence to the contrary with which to challenge the proportionate approach of the Secretary of state and the Prison Service. 53. We accept (the) submission that there are many legitimate reasons for listening to calls which satisfy rule 35A, as, for example, in the case of prisoners organising the trafficking of drugs in prison or planning an escape or, indeed, a false alibi. We also accept (the) submission that the rule 35A criteria are wide and that they are in the public domain and this available to prisoners and others […].” 42. As PSO 4400 entitled Prisoner Communications (dated 4 July 2005) at Annex A makes clear, all prisoners are informed in clear and unequivocal terms that “conversations which take place using prison pinphones will be recorded and may be monitored by prison staff. Pinphones can only be used by prisoners who consent to this”. 43. In the instant case, the learned trial judge addressed Mr Howat’s argument on this issue as follows (Mr Whittam QC and Ms Masters for the Crown support the judge’s conclusions in this regard): “First, I see no basis for concluding that in drafting the rules, the phrase ‘any prisoner’ or ‘class of prisoner’ was intended to exclude the situation in which a Secretary of State might give directions to a Governor which applied to the entire population of that prison as a class of prisoner. If it is lawful to make such a direction for any prisoner, it must therefore be lawful to give the direction for all prisoners. Further, since the Secretary of State has control over all prisons, the approach taken to give directions on a prison by prison basis may be seen as giving directions in relation to a class of prisoner on each occasions, that is to say the class of prison(er)s occupying Her Majesty’s Prison Strangeways for example. […] I see no reason to interpret 35A (1) as preventing the Secretary of State from directing that the regime should apply to the entire population of a prison. I am satisfied that the proper interpretation of the rules compatible with the convention rights and the Human Rights Act is to read Rule 34, which allows restrictions and conditions to be applied to the general population, as providing that same breadth of application when making directions under rule 35A, and that the wording in rule 35A(1) which speaks of a prisoner or class of prisoner is not intended to restrict that power but rather informs the Secretary of State that he may restrict the operation of his direction to a class, which may include the entire population of prison or to a smaller group within a prison perhaps with a qualifying conviction or alternatively to apply the rule to a named prisoner or prisoners.” 44. We agree. When Rule 34 is read with Rule 35 A, a regime has been created that is clearly intended to enable the Secretary of State to impose restrictions and conditions on the telephone calls made by prisoners either across the entire prison estate or by reference to particular prisoners or classes of prisoners. Rule 34 expressly provides that those restrictions and conditions can be applied “generally” or “in a particular case”. One of the conditions imposed on the prison population is that any calls they make must be via the PIN system, and by Rule 35A(1) the Secretary of State is empowered to give directions to any governor concerning the interception of any communication by any prisoner or class of prisoners . In our judgment, the word “any” used in this context refers to prisoners without limitation, and constructively it may apply to every one of them, since each prisoner may turn out to be a relevant representative of the group at which the condition is directed (see the Oxford English Dictionary). Given the decision has been made that all calls made by the PIN system will be recorded, the entitlement to give directions as regards any prisoner logically includes the opportunity to give directions for all prisoners. 45. In any event, the prisoners within a particular category or class, or held at a particular prison, can properly be treated as constituting a “class” of prisoner, such as the category A prisoners held at Her Majesty’s Prison Manchester (Strangeways). Mr Howatt sought to derive support for a more limited interpretation of the word “class” by reference to Rule 7 of the Prison Rules, which provides: “Classification of prisoners Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment as provided by rule 3. […] Prisoners committed or attached for contempt of court, or for failing to do or abstain from doing anything required to be done or left undone: shall be treated as a separate class for the purposes of this rule; […]” 46. Given Rule 7 and the scheme created by Rules 34 and 35A address wholly different situations, the suggestion that the limited groups created by Rule 7 should lead to the conclusion that the words “any” prisoner or “class” of prisoner should be interpreted restrictively is unpersuasive. Rule 7 was expressly addressing the need to place certain prisoner in identifiable and inevitably limited groups, which was, in our view, demonstrably not the objective of Rules 34 and 35A. Similarly, the reference to two nineteenth century authorities dealing with the construction of wills ( Re Chaplins Trust 12 WR 147 , 148 and Fell v Biddolph (1874- 1875) LR 10 CP 701 , 709) was of no material assistance in arriving at the proper construction of Rule 35A of the Prison Rules given the divergent contexts. 47. Accordingly, we consider that that the “blanket” interception and recording of the telephone calls of prisoners at the two prisons in question does not constitute a breach of RIPA, as it is not “outside the scope” of section 4(4) of the Act, and it is not ultra vires rule 35A. In the circumstances, this ground of appeal fails. 48. We stress that we have not considered in this judgment the extent to which it is necessary for this system to be reconsidered from time to time in light of the need for measures of this kind to be necessary and proportional. Asad Mahmood: Ground 2 (the submission of no case to answer) 49. At the close of the prosecution case, Mahmood submitted there was no case to answer on the allegation that the appellant had conspired to supply diamorphine “within the Teesside area”. This geographical limitation had been added during the prosecution case, following enquiries made of the prosecution by the learned judge. “Teesside” no longer exists following the abolition of the County Borough of Teesside in 1974, save as a loose description of the area in the north east of England consisting of the towns of Middlesbrough, Stockton-on-Tees, Thornaby, Billingham and surrounding towns and villages in the vicinity of the River Tees. Mr Howatt made this submission on two occasions, with the judge delivering rulings on 30 July 2012 and 8 August 2012. We need only consider the second ruling because it was on that latter occasion that the judge was asked to focus on whether there was evidence that Mahmood knew that the drugs were destined for supply in the Teesside area. 50. In the course of this appeal it has not been suggested that the following conclusions as to the general position as regards Mahmood were unjustified, based on the summary of the evidence set out above: “The jury would be entitled to conclude on the evidence that Asad Mahmood was willingly recruited as Imran Bashir’s representative and that in that role it is inevitable that he would have sufficient knowledge of the illegal trade to appreciate that a supply of this nature was not an isolated event but part of a business. He would therefore be aware that his role was part of a wider supply chain so that in taking the role that he did he was involving himself in a wider drugs supply including with people the identity of which he may not and need not know.” 51. The judge went on to ask the question: “Do the facts of this case also enable the jury to be satisfied that Asad Mahmood knew that the wider business was the one that led to Middlesbrough?” In considering whether it did, it is necessary to review the key parts of the evidence: i) Majid Khan (the man at the centre of the “Middlesbrough group” for the purposes of this drugs conspiracy) was in contact with Imran Bashir in prison, in circumstances that led to the proper inference – from the telephone evidence – that arrangements were made for heroin to be collected from Oldham and delivered to Middlesbrough on 22 July 2011. The plan was that Urfan Hussain’s taxi would travel from Middlesbrough to Oldham in order for the passenger, Asif Hussain, to pick up the heroin and then return with it to Middlesbrough. The prosecution case was that Bashir arranged for Mahmood and his delegate, Karl Waterfield, to handle the supply in Oldham. The appellant is a tall man and he is Majid Khan’s maternal cousin (as set out above, “Masair” means maternal cousin) and he was in contact with Majid Khan on a number of occasions during the events immediately surrounding the round trip from Middlesbrough to Oldham and back. ii) On 21 July 2011 the intercepted telephone evidence revealed that Majid Khan was not intending to visit Bashir as expected and that “Asad” (Asad Mahmood) would be the only visitor. Indeed, later the same day the appellant visited Bashir. That evening Bashir spoke with a man who, given the sequence of events and the overall context, it was open to the jury to conclude was Majid Khan, and he was told that “my Masair will be ringing you” (“the tall one”) and “he will give you something”. Thereafter, Khan and the appellant’s telephones were in contact with each other for in excess of 4 minutes. Given particularly what occurred thereafter, this provided clear evidence on which the jury would have been entitled to conclude that Khan and the appellant were arranging one of the supplies of heroin with this conspiracy was concerned and that the appellant would inevitably have known the destination of the supply, given it was Majid Khan with whom he was making the arrangements. iii) On 22 July 2011 Mrs Bashir spoke with Majid Khan and was told that he had spoken with Bashir’s cousin. Majid Khan was in telephone contact with Urfan Hussain and Asif Hussain as they prepared to leave for Oldham from Middlesbrough and he was in contact with Asad Mohammed immediately after they had left. There was further telephone contact between Khan and the appellant, and between the latter and Karl Waterfield. Thereafter, the passenger, Asif Hussain, contacted the appellant as the taxi approached Oldham. iv) Urfan Hussain’s taxi arrived in Oldham in the late afternoon of 22 July 2011 and was met by the appellant who was in a Ford Focus in Brewerton Road. The two vehicles then left at the same time, with the taxi following the Focus. There was then a 22-minute break in the surveillance before the taxi then was seen on the M62 returning to Middlesbrough. v) In due course, the Urfan Hussain’s taxi was intercepted on 22 July 2011 driven by Urfan Hussain as it approached Middlesbrough from the south. Asif Hussain fled, throwing away a bag that contained nearly 1 kilo of heroin. vi) Thereafter, there was a wave of telephone calls that included contact between Majid Khan and the appellant after midnight. 52. In our judgment, this history provided a strong basis for the jury to conclude that the appellant and Majid Khan were both intimately involved in this particular instance of the supply of heroin. Given the role of Majid Khan in the supply of drugs in Middlesbrough, together with the arrangements for the taxi to undertake a round trip on 22 July 2011 in order to collect the diamorphine, there was a proper basis for the jury to draw the inference that the appellant would inevitably have been aware that the drugs were destined for Middlesbrough, thereafter to be supplied “within the Teeside area”. If Majid Khan was the customer and his group was based in Middlesbrough, this was an entirely legitimate conclusion for the jury to reach. Mr Howatt was fully entitled to advance alternative scenarios and explanations for the evidence for the jury to consider, but there was more than sufficient evidence to support the conclusion that the appellant was aware that the conspiracy at this stage involved the supply of heroin within the Teesside area. 53. Furthermore, the judge was entitled to draw a distinction between the appellant and Waterfield in this regard, because of the limited nature of the evidence that indicated that Waterfield was aware of the arrangements that this was a Middlesbrough-related supply. There was evidence that could have led to the conclusion that Waterfield was present at the meeting with the taxi in Oldham and he was in contact with the appellant, but there was no additional evidence to demonstrate that he was aware of the link with Middlesbrough, or that Teesside was the destination. In those circumstances, there is no substantive similarity between the cases of the appellant and Waterfield in this regard. This renewed application for leave is refused. Majid Khan: Ground 1 (the telephone records) 54. Mr Uttley highlights on behalf of this appellant is that it was only after the trial had started (having been delayed: it had been due to start on 18 June 2012) that on 22 June 2012 the prosecution provided a bundle of materials that related to the applications for disclosure of the telephone records. Subsequently, on 25 June 2012 the prosecution provided various witness statements by way of a notice of additional evidence. Once these various documents had been served, on 26 June 2012 Mr Uttley made submissions as to the admissibility of the intercepted telephone calls, which, as relevant to this ground, were principally directed at the interpretation of the applications, namely it was contended the prosecution had impermissibly made a series of requests that were, in part, retrospective in nature. There is a subsidiary submission that it was unfair for the court not to have ruled on the matter on 22 June 2012 (as Mr Uttley requested), on the basis of the evidence then before the court, because the defendant is entitled to a trial within a reasonable period of time and that the prosecution is under a duty to act quickly and fairly when they are on notice that admissibility is in issue. 55. The relevant applications are as follows: i) On 5 September 2011 Detective Superintendent Sellers signed a request (PAS4) directed as HMP Manchester for the interception, recording and retention of all calls relating to Imran Bashir between 21 July 2011 and 20 October 2011. This application was granted on 21 September 2011. ii) On 21 December 2011 HMP Manchester approved a separate application (PAS4E) for the use of identified prison service Pin telephone intelligence for the period between 21 July 2011 and 20 October 2011. iii) On 12 September 2011 Detective Superintendent Sellers signed a request (PAS4) directed as HMP Full Sutton for the interception, recording and retention of all calls relating to Imran Bashir between 21 July 2011 and 20 October 2011. This application was granted on 26 September 2011. iv) On 14 December 2011 HMP Full Sutton approved a separate application (PAS4E) for the use of identified prison service Pin telephone intelligence for the period between 21 July 2011 and 22 November 2011. 56. Although it is regrettable, as the judge observed, that the material only became available extremely late in relation to the start of the trial, on the face of the documentation it is clear that authorisation was correctly given for the use of identified intercepted telephone calls. Although the PAS4 applications include a request for the calls to be intercepted and recorded, this process was happening in any event as a result of the general direction discussed above. Accordingly, the only operative part of the PAS4 application was for the retention of that material because, as Mr Kennelly (a prison intelligence officer) made clear, the calls are only held for 90 days before they “weed off” the system. This was not a retrospective request; instead, it was a request for the retention of everything identified in the application between the dates set out above. Thereafter, for both prisons PAS4E applications were submitted that provided comprehensive justification for the retained material to be used, which in due course were approved. 57. Therefore, proper authority had been given – on a general basis – for the interception and recording of telephone calls at the relevant prison or prisons, and the application process requesting the retention and use of the relevant material in this particular case was properly followed, and in the result there is no substance to this complaint. 58. As to the point on delay, the period identified is 3 or 4 days (between 22 June 2012 and 25/26 June 2012). Although delays in the service of relevant material by the prosecution of the kind that occurred in this case are strongly deprecated, it was clearly desirable for the parties and the court to have the complete picture before the judge made a decision on admissibility, and no prejudice – save for this short period of delay – has been identified. On analysis, this argument is entirely without substance and this ground of appeal fails. Majid Khan: Ground 2 (the telephone calls and Mrs Bashir) 59. As set out above, Mrs Bashir’s principal role on the evidence was to establish lines of communication between her husband and other members of the conspiracy, using her telephone number which had been approved for the purposes of the PIN system. Notwithstanding the repeated contribution she made by setting up the prohibited “conference calls” – thereby avoiding the restrictions imposed by the PIN system – the prosecution decided not to proceed against her on count 1 and instead her plea to money laundering in count 3 was assessed as an acceptable reflection of her criminality. Following this decision, an application was made to exclude the entirety of the intercepted prison telephone calls with which she had been involved and any evidence relating to her own telephone number. This application was made on the basis that “if this evidence was not good enough to justify a prosecution against Mrs Bashir then its admittance could only be prejudicial to the appellant”. 60. Mrs Bashir’s activities as regards the telephone calls were an important ingredient in the way an element of the conspiracy to supply heroin was organised, as it provided a vital link between her husband and certain other members of the conspiracy. Although the assistance she provided was not considered sufficient to establish her involvement in the conspiracy, there was other evidence against the other relevant defendants; indeed, against Majid Khan there was a wealth of further material that has been summarised above. These calls and the use Mrs Bashir made of her telephone, therefore, were simply one part of the case on the conspiracy, and the admissibility of this material against this appellant and the other relevant defendants was not dependent on the prosecution’s decision not to proceed against Mrs Bashir (whose knowledge of Urdu was slight and who may not understood the code which the participants in the conversations used on occasion). This renewed application for leave to appeal is refused. Majid Khan: Ground 3 (disclosure) 61. On 22 April 2012 the prosecution served a 331-page schedule relating to unused material. Most of the items were marked as being not disclosable. However, as already discussed above, following the start of the trial the prosecution were regrettably still in the process of serving material relevant to the use of the intercepted telephone calls. At various stages requests for the disclosure of particular items had been met with the response that there was nothing material that fell to be disclosed ( e.g. the letter sent by a CPS lawyer on 26 June 2012). 62. It is suggested that the surveillance logs were not always handled satisfactorily, in the sense that logs are missing for some of the dates when observations occurred. Furthermore, logs were requested for 19 occasions when the appellant had been a target during the period prior to the date of the start of the conspiracy. It is highlighted that there are discrepancies between certain log entries and the relevant parts of the officers’ statements. Although this information may have been provided in a piecemeal fashion, there is no evidence that there are any outstanding disclosable items in this category. Indeed, the court was given unqualified assurance by Mr Whittam that all the surveillance logs relevant to this trial were disclosed, and for the days of observation connected with this conspiracy with no corresponding log, the explanation is that no log was compiled. There is no basis for suggesting that undertaking by the Crown should not be relied on. 63. The disclosure problems relating to the intercepted telephone calls resulted in the Crown deciding not to rely on certain calls after 6 October 2011 (the wrong form had been used for a particular application). Nothing material arises from this issue, save that it serves to demonstrate the somewhat disorganised position of the Crown as regards the permissions that were necessary in order to use the evidence relating to the intercepted telephone calls. 64. Cross-examination of DC Findlay about the Safe Houses (Clough Close and The Potteries) resulted in additional disclosure to the appellant concerning the dates when that officer had been on duty. The prosecution ensured that the appellant was provided with disclosure of all the relevant material in the possession of the Crown when it was asserted either that Majid Khan had not been present or that there was no positive identification of the appellant. The appellant was in any event provided with the “live time” footage in the possession of the prosecution from these premises. 65. It is averred that the prosecution had not sought certain CCTV footage relating to the use of 11 telephone numbers that were potentially connected to the appellant, on the basis that the enquiries might compromise the investigation. The prosecution response to this suggestion is that the records in their possession for all the telephones of which they were aware have been served. Details concerning one particular number, the “Shine” business telephone number, which had been used by the appellant at about the time of the conspiracy, were not obtained. The prosecution did not try to obtain details relating to this telephone because it was not used during any of the events relevant to the conspiracy. In that sense its use was considered irrelevant to the issues in the case. 66. Finally, it was the prosecution case that having received the delivery of heroin carried from Bedford to Teeside on 24 August 2011, Majid Khan and other had driven north to visit Peter Clark in the Hartlepool home he shared with Victoria Stamper to have its purity tested. The telephone records relating to the use of their telephones were served as part of the evidence relied on by the prosecution. Clark and Stamper had both been arrested and interviewed and they denied the allegations that were put to them. It is accepted that the evidence of the interviews should have been disclosed in advance of the trial, although this failure was rectified during the proceedings. In the event, the defence were in possession of the relevant material. 67. In summary, although the disclosure process was not by any means without difficulties in the sense that some items were provided during the trial, there are no credible reasons to suppose that anything that is disclosable was withheld, or that late delivery caused any unfairness to this appellant. This ground of appeal against conviction also fails. The Renewed Applications for leave to Appeal against Sentence The Sentencing Remarks 68. The judge observed that during the latter half of 2011, Majid Khan had led a group responsible for trading in heroin and to a lesser extent cannabis in the Middlesbrough area. In his judgment, this had been a well-organised and determined plan. Given the consequences of that trade, it was necessary to impose substantial sentences in recognition of the seriousness of the conspiracy. The trial had focused on specific events, the first being on 22 nd June but it was clear that the trade was well under way prior to that because when Williamson was arrested, the safe house at 188 Clough Close in Middlesbrough was already being used to store heroin for distribution. The judge was satisfied that the events observed on that day were simply an example of the trade that was on going. Additionally on that day Agiadis received a quantity of heroin from Asif Hussain for onward transmission to Williamson. This was part of the store kept in the safe house and Hussain took it from there at Majid Khan’s direction. The judge was satisfied that Majid Khan had received payment for it while standing outside his car wash premises. The trade had continued after the seizure, as demonstrated by frequent visits to the drugs store. Indeed, it was still continuing on 27 th August when Mohammed Nadine was arrested heading southbound with heroin which had been rejected because it was of insufficient strength. By this time a second safe house was being used in a flat development known as The Potteries. 69. The judge concluded that the majority of visits to the safe houses were connected to the heroin trade. The organisation had links to drug suppliers in the Manchester/ Oldham area and in Bedford and heroin was obtained from both those locations. The supply of heroin from Oldham was arranged with Imran Bashir who was serving a 14 year sentence in HMP Manchester imposed in October 2005 for conspiracy to supply heroin. 70. Strategies were adopted to frustrate investigation including the use of safe houses to store drugs, the use and abandonment of pay as you go phones; the use of coded conversations; the use of taxis for deliveries rather than cars which might have been traced back to their owners. Majid Khan operated from a car wash which the judge suspected was a front. Between 24 th June and 19 th October Majid Khan had used 10 different telephone numbers and 6 different handsets. 71. The filming by covert cameras at both safe houses revealed evidence of the operation’s scale. 72. The separate conspiracy to supply cannabis had involved only Majid Khan and Mohammed Akram and at trial was represented by a single event on 19 th October. It was a reasonable inference that this was not the first dealing given the substantial amount recovered but the judge was of the view that this amounted to no more than a sideline, the primary focus being the heroin trade. As with the heroin an unconnected car had been used to transport the cannabis. 73. There was clearly a hierarchy, and the judge decided the most culpable were the regional “heads”, Majid Khan in Middlesbrough, Imran Bashir in Oldham or Manchester, and Majid Hussain Bedford. Each had a leading role in directing the activity of others in the region where they operated; they had substantial influence with others; and given the quantities involved, they must have had close links with the original source. The motivation was the expectation of substantial financial reward. Majid Khan was the most culpable of the three. He was the head of the Teesside conspiracy, using Imran Bashir’s organisation as a source of supply from the Greater Manchester area, and when that route was foiled by police he turned to Majid Hussain in Bedford. 74. The judge applied the guidelines (as a guide), and it is accepted by the applicants that the Sentencing Council’s Definitive Guideline applies to all drug offences, including conspiracy cases. The judge observed that this was a conspiracy that was active for at least three months and it included two specific seizures but clearly other amounts went undetected. Using the guidelines as a starting point the judge was satisfied that the starting point for each of the three heads should be in the range for a leading role in a category one case (the range was 12 to 16 years, with a starting point of 14 years). 75. Addressing the position of Majid Khan, the judge concluded that in view of the persistence and organisation of the conspiracy and the conclusion that the safe house was used primarily in respect of the storage of heroin rather than cannabis, the appropriate starting point was 15 years. He had expanded the drugs trade to include cannabis, represented by a single event. The judge was satisfied from the purchase of food bags en route that the cannabis was to have been repackaged into smaller amounts. Although clearly a sideline, Khan’s involvement was at a level which justified that he had a leading role in the cannabis conspiracy which the judge categorised as at level 3 although at the lower end. The appropriate sentence after trial on the cannabis would have been 3 years consecutive but this was reduced to 18 months on the principle of totality. He was 29 years old, had no relevant convictions but there was no mitigation to reduce the penalty. 76. Given the disparity arguments that are relied on, it is necessary to consider the sentencing remarks as regards Bashir and Majid Hussain. 77. In the case of Imran Bashir, the judge noted he was 38 years old. His active role was less than that of Majid Khan, because he was a serving prisoner throughout. He role was vital in that he ensured Khan continued to have a supply of heroin outside the Teesside area. His direct involvement had been with the single consignment intercepted by police in July, but it was clear that he had a controlling role and was able to direct Asad Mahmood. Indeed, his conversations, recorded in prison with Majid Khan but largely in code and/or Urdu revealed that Mahmood was a trusted lieutenant and aware of the wider extent of the conspiracy. Bashir had placed his wife in peril by his acts, requiring her to facilitate the calls to Khan. The judge indicated that he did not reject out of hand the submissions that this had been a single supply of one kilogram or that he had a leading role in a category two case, but he was of the view that the matter was more serious by nature of the knowledge that came with his willing participation in Khan’s ongoing trade. 78. The appropriate starting point after trial for a man of good character was 12 years. Substantially aggravating Bashir’s position was that he was a serving prisoner for offences of drug trafficking and his previous convictions included the supply of drugs and this increased the starting point to 13 years 6 months. He had pleaded guilty after the jury was sworn and thus credit for the guilty plea was limited and 10% reduction would be given. The sentence would commence at expiry of the sentence being served. Bearing this in mind an overall sentence of 21 years might well have been appropriate and accordingly the sentence imposed would be one of 7 years. 79. Majid Hussain was 38 years old. The judge rejected his basis of plea that he had acted only as an intermediary arranging for money to be carried to Middlesbrough to enable the purchase of heroin from Teesside to Bedford. He was satisfied from the evidence presented at trial that the consignment carried by Palminder Chohan involved heroin. The latter had been misled about the true nature of his role and Hussain had used him as an unwitting courier. The heroin had been seized on 27 th August because Majid Khan had rejected it as being under strength and it was being returned to Hussain. Telephone evidence revealed him to be dealing directly with Majid Khan the head of the Teesside group. His call and the evidence of Chohan proved that he arranged the delivery. His later calls revealed that he was the person to whom Khan turned when fault was found with the delivery. He had arranged the recovery and he and Khan changed phones after speaking realising that the drugs had been seized. He had taken a leading role directing operations from Bedford and dealing with the consequences of the police interception. 80. As with Bashir, his role had been less than that of Majid Khan. He was involved in only a part of the Teesside trade, but his role was in a wider conspiracy to supply heroin. The judge was satisfied that he played a leading role in his area, able to persuade Chohan to act on his behalf, and concealing from him the true nature of the trip. He was in a position to receive the rejected heroin and to arrange for another driver to collect it. The starting point for sentence in his case would have been 12 years. He had previous convictions for drug matters and that increased the starting point to 13 years 6 months. The judge acknowledged the hardships caused to him and his family by incarceration but these were no greater than the inevitable loss accompanying any substantial period of incarceration. His only mitigation, albeit substantial, was his plea of guilty, entered at what the judge indicated he considered to be the earliest opportunity and he would receive full one third discount, reducing sentence to 9 years imprisonment less time. 81. Finally, as regards Asad Mahmood he was 40 years old. His only drug related conviction had resulted in a conditional discharge and his last significant court contact was 10 years previously (he had served a 2 year sentence of imprisonment having been convicted of deception in March 2002). His antecedent history was not, therefore, regarded as an aggravating feature. The judge took into account the mitigation he had heard and he had read the letters and references. The judge determined that his role was significant and whilst focused on a single day, it was a role in a wider conspiracy. The sentence was one of 9 years imprisonment. The Grounds of Appeal 82. For Mahmood, it is submitted the sentence of 9 years imprisonment is manifestly excessive in view of the appellant’s role which was limited to involvement in the Oldham transaction for a period of 24 to 36 hours. Furthermore, it is suggested there is unfair disparity between the appellant’s sentence and that of his Imran Bashir who was sentenced to 7 years despite his heavy involvement and was already serving a 14 year sentence. 83. Khan submits that the judge erred in stating that he was satisfied that the two safe houses were used solely for heroin and in concluding that there must have been numerous heroin transactions. It was an agreed that the appellant had been under surveillance for 18 months and prior to the 5 days of the conspiracy no drugs had been seen or recovered. 84. It is suggested there is inconsistency in the tariffs imposed for the heads of the organisation – Bashir who received 7 years and Hussain 10 years. It is argued there should have been no distinction in the sentences imposed on these three men. Further, it is highlighted Bashir and Majid Hussain had previous convictions for drug dealing. 85. Finally, it is argued the judge failed to take on board Court of Appeal guidance in sentencing and wrongly described this as a category 1 case. The Decision of the Single Judge 86. In refusing leave to appeal their sentences, the single judge observed: “ Asad Mahmood Your application for leave to appeal sentence was lodged 2 weeks out of time and you have provided no grounds justifying the necessary extension of time. Further and in any event, you have no arguable grounds for appealing the sentence of 9 years. You were convicted of conspiring to supply heroin in the Teeside area. The sentencing judge presided over the trial and was very well placed to assess your role in the conspiracy and hence your level of culpability. It was his judgement that your role was a significant one, in that not only were you involved in meeting Asif Hussain and directing him to a restaurant where a transaction for 985 grams of drugs was facilitated but you were also involved through being party to the conspiracy in a wider trade of drugs. The contention made on your behalf that there is an objectionable disparity between your sentence and that imposed on your cousin, Imran Bashir, is unsustainable. The judge reduced the sentence he would otherwise have imposed on Bashir because the sentence was one that was to be served after Bashir had completed the sentence he was serving when he joined the conspiracy charged in count 1. It follows that the 9 years to which you were sentenced is not arguably manifestly excessive or wrong in principle. Majid Khan Your application for leave to appeal sentence was lodged 2 months out of time and you have provided no grounds justifying the necessary extension of time. Further and in any event, you have no arguable grounds for contesting the sentence of 15 years imposed on count 1. You were at the heart of a widespread conspiracy between 24 June and 19 October 2011 to supply heroin into the Teeside area sourced from Qldham and Bedford. Over this period you used at least 10 different telephone numbers and 6 difference handsets. A kilo of heroin was seized by the police on 22 July 2011 and a further kilo was seized on 27 August 2011 and, as the judge found (as he was entitled to) the implementation of the conspiracy was not limited to these significant quantities.” Discussion 87. This was a very careful sentencing exercise, and following a long trial the judge was well placed to understand the various roles of the defendants, whether or not they had pleaded guilty or were convicted by the jury. The Definitive Guideline applies to conspiracy offences and the judge was fully entitled to conclude that for the three principal offenders this was a category 1 case in that it involved over 5 kilograms of heroin and they had played a leading role directing or organising the buying and selling on a commercial scale. As the single judge observed, Mahmood’s disparity argument based on the sentence passed on Bashir is untenable given the judge had to take into account the unrelated lengthy custodial term the latter accused is already serving. Similarly, the conclusions the judge reached on the facts relevant to Khan were entirely sustainable, and it is unarguable that the principal offenders should have been given the same sentence, regardless of the particular circumstances relating to each of them. 88. Following a trial, these sentences are not arguable manifestly excessive or wrong in principle, and these renewed applications for leave are refused on their merits.
{"ConvCourtName": ["Crown Court in Teesside"], "ConvictPleaDate": ["9th August 2012"], "ConvictOffence": ["conspiracy to supply a class A drug"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court in Teesside"], "Sentence": ["Khan was sentenced to 15 years’ imprisonment and Mahmood to 9 years’ imprisonment. Khan was also convicted on 9 August 2012 of conspiracy to supply a class B drug for which he received a consecutive sentence of 18 months’ imprisonment, making a total sentence in his case of 16 years 6 months."], "SentServe": ["consecutive"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["40", "29"], "OffJobOffence": ["self-employed"], "OffHomeOffence": ["living with his girlfriend in Thornaby"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["expert evidence", "police", "CCTV", "prison telephone system"], "DefEvidTypeTrial": ["defence case for the appellants on count 1 was that the prosecution was presenting a distorted picture of the evidence", "no case to answer", "submission of no case to answer"], "PreSentReport": ["data not available"], "AggFactSent": ["role was significant", "well-organised and determined plan", "leading role"], "MitFactSent": ["letters and references"], "VicImpactStatement": ["data not available"], "Appellant": ["appellant"], "CoDefAccNum": ["numerous co-accused"], "AppealAgainst": ["also renews his applications for an extension of time"], "AppealGround": ["9 years imprisonment is manifestly excessive in view of the appellant’s role", "the prosecution failed in their duties of disclosure to a degree that deprived the appellant of a fair trial", "deprived the appellant of a fair trial.", "the judge erred in admitting evidence of telephone calls", "the learned judge wrongly dismissed his application at the close of the prosecution case that he had not case to answer", "prison term was manifestly excessive"], "SentGuideWhich": ["Regulation of Investigatory Powers Act 2000", "Sentencing Council’s Definitive Guideline applies to all drug offences"], "AppealOutcome": ["application for leave is refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["no arguable grounds for appealing the sentence"]}
{"ConvCourtName": ["Crown Court In Teesside"], "ConvictPleaDate": ["2012-08-09"], "ConvictOffence": ["conspiracy to supply a class A drug"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court In Teesside"], "Sentence": ["Khan was sentenced to 15 years’ imprisonment and Mahmood to 9 years’ imprisonment. Khan was also convicted on 9 August 2012 of conspiracy to supply a class B drug for which he received a consecutive sentence of 18 months’ imprisonment, making a total sentence in his case of 16 years 6 months."], "SentServe": ["Consecutive"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["29", "40"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["expert evidence", "Digital evidence", "CCTV", "Police evidence"], "DefEvidTypeTrial": ["No Case to Answer", "defence case for the appellants on count 1 was that the prosecution was presenting a distorted picture of the evidence", "No Case to Answer"], "PreSentReport": ["Don't know"], "AggFactSent": ["role was significant", "leading role", "well-organised and determined plan"], "MitFactSent": ["letters and references"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["12"], "AppealAgainst": ["Other"], "AppealGround": ["9 years imprisonment is manifestly excessive in view of the appellant’s role", "the prosecution failed in their duties of disclosure to a degree that deprived the appellant of a fair trial", "the judge erred in admitting evidence of telephone calls", "the learned judge wrongly dismissed his application at the close of the prosecution case that he had not case to answer", "deprived the appellant of a fair trial.", "prison term was manifestly excessive"], "SentGuideWhich": ["Sentencing Council’s Definitive Guideline applies to all drug offences", "Regulation of Investigatory Powers Act 2000"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["no arguable grounds for appealing the sentence"]}
415
Case No: 200803755/A3 Neutral Citation Number: [2008] EWCA Crim 2019 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 19th August 2008 B e f o r e : MR JUSTICE GAGE MR JUSTICE TREACY MR JUSTICE BEAN - - - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NO 45 OF 2008 - - - - - - - - - - - - - - - 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 M Aldred appeared on behalf of the Attorney General Mr S Akinsanya appeared on behalf of the Offender - - - - - - - - - - - - - - - J U D G M E N T 1. Lord Justice Gage: This is a reference by HM Solicitor General of a sentence which she regards as unduly lenient. She seeks the leave of the court to refer the sentence to this court. We grant leave. 2. The offender, Amar Brahimi, is aged 16. He was born on 6th December 1991. On 18th May 2008 he pleaded guilty to two offences: first, possession of a prohibited weapon, namely a handgun, which had a barrel of less than 30 cms in length contrary to section 5(1) (aba) of the Firearms Act 1968 ; secondly, possession of ammunition without a firearm certificate contrary to section 1(1)(b) of the Firearms Act. On 13th June he was sentenced to a 12-month detention and training order on each count concurrently. He had been in custody for 70 days at the time of the sentence. The judge made allowance for this period when passing sentence. 3. The facts are as follows. On Tuesday 4th March 2008 police officers executed a search warrant under section 23 of the Drugs Act 1971 at the home address of the offender. During the search floor boards were lifted in the hallway of the premises. There, a white sock was found containing a converted 8 millimetre blank firing pistol hidden beneath the floor boards. The offender told the police that he would talk about the gun at interview after he had spoken to a solicitor. It was later discovered that within the pistol's magazine was a round of ammunition capable of being discharged. In addition, there was recovered from the offender's wardrobe a set of body armour. 4. The offender was arrested. He was detained at South Norwood police station where he was interviewed. He gave the following account. He said that an incident had occurred in October/November 2007 where three men entered his home armed with a firearm and assaulted his father and brother, hitting them repeatedly over the head with the firearm. As a result of this incident, a boy, who he did not name, save only to say he was called John, gave him the firearm wrapped in the sock as protection should the assailants ever return. He knew it was a gun. Initially he said that he did not know whether it was real. However, he said that he looked at the handle and may be touched it and looked at it again a couple of weeks later. He accepted that he had it for his own protection. He said he was considering giving the weapon back to John but did not consider taking it to a police station. He thought that it was an offence to have a weapon. He bought the body armour for his protection approximately two months before his arrest. 5. The firearm was examined by the Forensic Science Service. It was found to be a modified blank firing 8 millimetre pistol. Originally it had a solid barrel to prevent the discharge of any projectile. When recovered the barrel had been replaced with a piece of steel tubing making it possible for bulletted ammunition to be fired. Accordingly, it was classified as a firearm as defined in section 57(1) of the Firearms Act 1968 and as a prohibited weapon by virtue of section 5(1) (aba) of the Firearms Act 1968 . The magazine was also examined. It was found to contain an improvised projectile. The firearm was test fired with that particular projectile, among others, and found capable of discharging projectiles with sufficient force to cause lethal injury. Accordingly, the projectile was classified as ammunition as defined under the provisions of section 1(1)(b) of the Firearms Act. 6. So far as the offender is concerned, as we have said, he was 16 years old at the date of the offence and the date of the sentence. He has a number of previous convictions, including offences of violence and possession of weapons, namely two offences of a robbery in 2005, for which he received a six month referral order for each offence; possession of an offensive weapon, a bladed article, on school premises in 2006, for that he received a supervision order of 12 months; and common assault, committed in February 2008, for which he was remanded on police bail on the same day and sentenced on 11th April 2008 for this offence to a fine of £100 and subject to a compensation order of £10. 7. There was a pre-sentence report before the court. In that report the author commented on his assessment of the risk posed by the offender at paragraph 4.1. The author of the report said: "Through the commission of this offence, it is clear that Amar was in contact with more criminally entrenched, sophisticated offenders than himself. However, the level of his association and involvement with them remains unclear and it is, therefore, difficult to determine whether reoffending of this magnitude is imminent and whether Amar will cause serious harm when he is released. 4.2. Amar has stated on many occasions that the firearm was never used by him and that he was merely in possession of it. However, by his own admission, he has stated that he would have used the weapon to prevent harm being caused to himself and his family and, having not thought through the implications of this, this is very concerning. Amar has previous minor offences involving violence recorded against him and this offence represents a significant escalation in seriousness, with the common and underlying features of recklessness, impulsiveness and a lack of understanding about the longer term consequences prevailing throughout." 8. Finally, at paragraph 4.4 it is stated: "In the absence of this, it is my view that this somewhat naive and immature young person will struggle with leading a law aiding life on his release. For all these reasons, I would currently assess Amar as presenting a high risk of reoffending and high risk of serious harm." 9. The judge in the course of discussions with prosecuting counsel correctly identified that the offence attracted a minimum term of three years' detention in the absence of exceptional circumstances. In the course of his sentencing remarks he referred to the previous attack on the offender's family. He found that the offender's possession of the firearm in the light of the previous attack, coupled with his age and immaturity, amounted to exceptional circumstances. He said: "Now, I have decided that I can just consider this as an exceptional case, but it is a very borderline decision. And I do take into account your age and immaturity, alongside the explanation -- which has not been disputed and is referred to in the pre-sentence report as well -- as to how you came into possession of the weapon. And it is not a case where you actually used it or were on your way to use it; I have taken that into account as well despite all the negative things that I have said about you." Accordingly he passed the sentence to which we have referred. 10. The Solicitor General identifies the following aggravating features which appear to be present. The firearm was real; the firearm was loaded, capable of discharging the projectile with lethal force; it was a prohibited weapon with no lawful use; the weapon was kept with a view to use; the offender has previous convictions for violence and weapons, and the offence was committed whilst he was on police bail for the common assault to which we have referred. 11. The following mitigating features are identified as being present. The offender was 16 years old when the offence was committed, he admitted the offences in interview and pleaded guilty and the firearm was not used. 12. The Solicitor General through counsel on her behalf, Mr Aldred, draws attention to a number of decisions of this court to which we will refer briefly later in this judgment. It is submitted that the judge was wrong to find exceptional circumstances. 13. So far as the offender is concerned, Mr Akinsanya, who appears on his behalf, has said everything that can possibly be said in his favour in concise and persuasive submissions. Principally his submission is that the judge in this case, a very experienced judge, was fully aware that the appropriate sentence, absent exceptional circumstances, was one of a minimum term of three years. Before him were all the facts of the offence and he reached the conclusion that he was able in the circumstances to find that there were exceptional circumstances. The submission is that this court should not interfere with that finding. 14. Mr Akinsanya accepts that the authorities would appear to suggest that the sentence was unduly lenient. However, he submits that if this court were to take that view it should exercise its discretion not to interfere with the sentence. 15. As we have said, we have been referred by counsel for the Solicitor General to a number of decisions of this court. They are R v Jordan [2005] 2 Cr App R(S) 44, Attorney General's Reference No 5 of 2005 [2005] EWCA Crim 880 , R v Rehman and another [2006] 1 Cr App R(S) 77, R v Blackall [2006] 1 Cr App R(S) 22, and R v Lucas [2007] 2 Cr App R(S) 81. These cases comment on the principles involved where mandatory minimum terms apply. They also provide examples where the court has found either that there were exceptional circumstances justifying the imposition of a sentence of less than the minimum term, or that no such exceptional circumstances existed. 16. In Rehman the court said in the judgment given by Lord Woolf, Lord Chief Justice, that the court should adopt a holistic approach. It would not look at each circumstance separately. At paragraph 11 the judgment contains the following passage: " ... it is not appropriate to look at each circumstances separately and to conclude that it does not amount to an exceptional circumstance. A holistic approach is needed. There will be cases where there is one single striking feature, which relates either to the offence or the offender, which causes that case to fall within the requirement of exceptional circumstances. There can be other cases where no single factor by itself will amount to exceptional circumstances, but the collective impact of all the relevant circumstances truly makes the case exceptional." 17. Later in the judgment the court stated what the proper approach of this court should be when considering a decision that there were exceptional circumstances. At paragraph 14 the court stated: "The section makes clear that it is the opinion of the court that is critical as to what exceptional circumstances are. Unless the judge is clearly wrong in identifying exceptional circumstances when they do not exist, or clearly wrong in not identifying exceptional circumstances when they do exist, this court will not readily interfere." 18. The other decisions show that age on its own will not provide an exceptional circumstance: see Lucas . 19. Mr Aldred on behalf of the Solicitor General points to the fact that the facts in Lucas were not dissimilar to the facts in the instant case. In that case the court refused to hold that there were exceptional circumstances for interfering with a mandatory minimum term. In the case of Blackall the fact that an offender has in his possession a firearm for the purpose of defending himself was held not to be a circumstance amounting to exceptional circumstances. 20. As we have said, the judge in the case before us described the decision as to whether there were facts justifying a finding of exceptional circumstances as a "borderline" one. With respect to this very experienced judge, we disagree. Whilst it is understandable that the court should wish to find exceptional circumstances in view of the offender's age, in our judgment neither of the two factors, namely the age of the offender nor his reason for possessing the firearm, either on their own or cumulatively can amount to exceptional circumstances. We should add that the judge did not appear to have had the benefit, as we have had, of the citation of the authority. If he had, in our judgment, he would probably have reached a different conclusion. 21. These are very serious offence. The prevalence of crimes involving firearms committed by young offenders in areas of our cities requires substantial sentences to be passed even in the case of young offenders. Taking into account the facts of these offences, the offender's previous convictions and the assessment of him by the author of the pre-sentence report, we would have expected a sentence at first instance of rather more than three years to have been passed and probably in the region of four years or more. 22. Taking into account the offender's guilty plea and the element of double jeopardy, we quash the sentence of 12 months' detention and training order passed by the judge and for it substitute a term of three years' detention pursuant to section 91 of the Powers of the Criminal Courts (Sentencing) Act 2000 . Accordingly, the reference is allowed to that extent. In arriving at that conclusion we also take into account the time that he spent on remand.
{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["18th May 2008"], "ConvictOffence": ["possession of a prohibited weapon", "possession of ammunition without a firearm certificate"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["in custody"], "RemandCustodyTime": ["70 days"], "SentCourtName": ["data not available"], "Sentence": ["12-month detention and training order on each"], "SentServe": ["concurrently"], "WhatAncillary": ["training order"], "OffSex": ["He"], "OffAgeOffence": ["aged 16"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["home address"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["police officers executed a search warrant"], "DefEvidTypeTrial": ["for his protection"], "PreSentReport": ["high risk of reoffending", "high risk of serious harm"], "AggFactSent": ["prohibited weapon with no lawful use", "firearm was loaded", "previous convictions", "capable of discharging the projectile with lethal force", "committed whilst he was on police bail"], "MitFactSent": ["16 years old", "admitted the offences", "pleaded guilty"], "VicImpactStatement": ["data not available"], "Appellant": ["ATTORNEY GENERAL"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["sentence"], "AppealGround": ["unduly lenient", "the judge was wrong to find exceptional circumstances"], "SentGuideWhich": ["section 91 of the Powers of the Criminal Courts (Sentencing) Act 2000.", "section 5(1)(aba) of the Firearms Act 1968"], "AppealOutcome": ["quash the sentence", "allowed to that extent.", "substitute a term of three years'"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["Taking into account the facts of these offences, the offender's previous convictions and the assessment of him"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["2008-05-18"], "ConvictOffence": ["possession of ammunition without a firearm certificate", "possession of a prohibited weapon"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["70 days"], "SentCourtName": ["data not available"], "Sentence": ["12-month detention and training order on each"], "SentServe": ["Concurrently"], "WhatAncillary": ["training order"], "OffSex": ["All Male"], "OffAgeOffence": ["16"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Police evidence"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["High risk of harm", "High risk of reoffending"], "AggFactSent": ["committed whilst he was on police bail", "capable of discharging the projectile with lethal force", "prohibited weapon with no lawful use", "firearm was loaded", "previous convictions"], "MitFactSent": ["pleaded guilty", "admitted the offences", "16 years old"], "VicImpactStatement": ["data not available"], "Appellant": ["Attorney General"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["sentence"], "AppealGround": ["the judge was wrong to find exceptional circumstances", "unduly lenient"], "SentGuideWhich": ["section 91 of the Powers of the Criminal Courts (Sentencing) Act 2000.", "section 5(1)(aba) of the Firearms Act 1968"], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence", "quash the sentence", "allowed to that extent."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["Taking into account the facts of these offences, the offender's previous convictions and the assessment of him"], "ReasonDismiss": ["data not available"]}
438
No: 201505014 B1 Neutral Citation Number: [2016] EWCA Crim 678 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 12th April 2016 B e f o r e : VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION LADY JUSTICE HALLETT DBE MR JUSTICE JEREMY BAKER RECORDER OF MIDDLESBROUGH HIS HONOUR JUDGE BOURNE-ARTON QC (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - R E G I N A v LIAM KARL O'BRIEN - - - - - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - - - - - Miss J Smart appeared on behalf of the Appellant Mr H MacLean-Watt appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: 2. Background 3. The applicant appeared at the Blackfriars Crown Court charged jointly with Junior Owusu-Sekyere and Kadeem Simon Brown with an offence of robbery. Brown pleaded guilty. On 5th October 2015 the appellant and Owusu-Sekyere were convicted. The issue for this court is whether Brown's plea of guilty should have been admitted in evidence at the appellant's trial. 4. We can state the facts briefly. Mr Luck and his friend Mr Desiato were walking along Islington High Street, looking for a taxi, in the early hours of the morning when they were approached by a group of four men: the three accused, and a fourth man (arrested but not charged). The encounter was captured on CCTV. 5. The appellant accused Mr Luck of having thrown water over him. Mr Luck denied having done so. According to Mr Luck, the men became more aggressive, surrounded him and separated him from his friend. They told him he could not ‘get away with’ what he had done and he should tell them who threw the water or he would have to pay. One of the men, whom he described as "the Turkish guy" (agreed to be the appellant), punched him hard to the side of the face and, with the others, pushed him towards a cash machine, demanding he pay them £250. He was threatened that if he did not go to the cash point he would be stabbed and killed. He withdrew £100, which he gave to the appellant. Brown demanded his bank card and PIN. His bank records later revealed that two amounts of £100 were withdrawn from his account followed by several unsuccessful attempts to withdraw a further £50. 6. The appellant gave evidence at trial that he had gone to Upper Street to get something to eat with his co-accused. In the queue at the hot dog stand he and Owusu-Sekyere were hit by liquid. He asked Mr Luck and Mr Desiato who had thrown the water. They denied responsibility but he refused to accept their answer and kept asking them who was responsible. He threw a punch at the victim, he claimed in self-defence because the victim had "invaded his personal space" and waved his arms. He said he overheard a conversation between Mr Luck and Brown in which Mr Luck offered compensation of £50 for his wet hoodie. He, the appellant, insisted on £250. He saw Mr Luck and Mr Brown at the cash point. He believed Mr Luck was withdrawing the money he had offered. He did not threaten Mr Luck at any time, he did not see or hear Brown make any threat. When Mr Luck gave him £100, he protested the agreement was for £250, and so Mr Luck withdrew another £100. Mr Luck claimed he had reached his limit, handed the appellant his cash card, told him his PIN and invited him to check that was the case. The appellant then tried to withdraw £50 but found he had been given the incorrect PIN. By this time the victim had left. Owusu-Sekyere then tried to withdraw £200 from the victim's account. 7. Admission of guilty plea 8. At the outset of the trial the prosecution applied to admit Brown's plea of guilty into evidence pursuant to section 74 of the Police and Criminal Evidence Act 1984 (“PACE”). The Recorder considered the matter overnight and provided a very carefully structured and thorough ruling. He referred to the relevant passages in Archbold and decisions put before him by Miss Smart in R v Kempster [1990] 90 Cr App R 14 , R v Nathan Smith [2007] EWCA Crim 2105 , and case comment on the decision in R v Curry [1988] Crim LR 527. He ruled that the guilty plea was relevant to an issue in the case: it was evidence that Brown committed the robbery and it was relevant to whether his co-accused did so. He then considered whether the guilty plea should not be admitted because of its adverse effect on the fairness of the proceedings. He reminded himself he must balance any potential unfairness to the appellant against the potential unfairness to the prosecution and the wider interests of justice. It was his judgment that a failure to allow the evidence to be admitted would allow the appellant to present a false defence that neither he nor Brown had committed an offence. He applied the test under section 78 of PACE and asked himself whether admitting the evidence would have such an adverse effect on the fairness of the trial that otherwise relevant and admissible evidence should be excluded. Whilst he acknowledged the admission of the guilty plea made it more difficult for the appellant to assert there was no robbery, he did not accept that admission of the plea would deprive him of a defence. It was left open to the appellant to argue that, to his knowledge, there was no robbery and that he participated in no robbery. 9. Grounds of Appeal 10. The grounds of appeal advanced by Miss Smart, in helpful and succinct submissions both orally and in writing, focused on the judge's allowing Brown’s guilty plea to be admitted in evidence. Even if the plea was relevant and admissible under section 74, it was her contention it should have been excluded under section 78. 11. Section 74 provides, where relevant: 12. "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 or by a Service court outside the United Kingdom shall be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that that person committed that offence, whether or not any other evidence of his having committed that offence is given." 13. Section 78(1) provides: 14. "In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it." 15. Ms Smart took us through a number of decisions of this court on the application of s.74, as she had with the trial judge. The most helpful recent summary of those decisions appears in the case of Nathan Smith. Although the court noted that the line of cases considered had been decided before the passing of the Criminal Justice Act 2003 (“CJA”), which extended the ambit of evidence ‘with which a jury can be trusted,’ it did not follow the decisions were out of date. Section 74 should be “sparingly applied". The reason given at paragraph 16 is: i. "... because the evidence that a now absent co-accused has pleaded guilty may carry in the minds of the jury enormous weight, but it is nevertheless evidence which cannot properly be tested in the trial of the remaining defendant. That is particularly so where the issue is such that the absent co-defendant who has pleaded guilty could not, or scarcely could, be guilty of the offence unless the present defendant were also. In both those situations the court needs to consider with considerable care whether the evidence of the conviction would have a disproportionate and unfair effect upon the trial. With those cases can be contrasted the kind of case in which there is little or no issue that the offence was committed, and the real live issue is whether the present defendant was party to it or not. In those circumstances, commonly, the pleas of guilty of other co-defendants can properly be admitted to reinforce the evidence that the offence did occur, leaving the jury independently to consider whether the guilt of the present defendant is additionally proved." 16. Thus, the focus of the court remains: what is the issue to which the guilty plea is said to be relevant? Would the admission of the plea of guilty of a now absent co-defendant have an unfair impact upon the fairness of the trial by closing off much or all of the issues? (See paragraph 17). On the facts of Nathan Smith the court concluded that it did. The court was also critical of the judge’s directions to the jury to the effect that the only significance of the co-defendant’s plea was that the girl had admitted her guilt. If that was so, the requirements of section 74 (by which the judge had purported to admit the evidence) had not been met. 17. Miss Smart does not submit that the Recorder’s directions here were wrong; he directed them in clear terms that (pursuant to s.74) the plea of guilty was admissible to prove that Brown had committed the offence of robbery. However, she maintained that simply by admitting the evidence, the judge has effectively closed off the issue that the jury had to try. She had no opportunity to challenge Brown or test the basis upon which he pleaded guilty. The fact that he was guilty of robbery meant that the appellant must have been involved with him. The appellant's case was inextricably bound up with that of Brown. Brown could not have been guilty of robbery simply by standing by the cashpoint and adding his threatening presence unless the appellant was in the process of committing a robbery. Accordingly, if Brown was guilty of the offence, the jury would inevitably conclude that so must the appellant be. No directions could rectify the unfairness to the appellant. 18. Conclusions 19. As in the case of Smith , we have no doubt that the evidence of Brown's plea of guilty was relevant and admissible at the appellant's trial. It went to the issue of whether there was a robbery. The question for us, however, is whether its admission into evidence has closed off the very issue that the jury had to try and should therefore have been excluded under section 78. In our view, on the facts of this case, it did not. There were up to four people allegedly involved in the robbery. Words may have been uttered and threats issued not heard by all. It did not follow from the plea of one of the four that all four must be guilty. 20. The appellant's case throughout, from the defence case statement to his evidence at trial, was that, whatever Brown and others were up to, he was not involved in a robbery. As far as he was concerned, Mr Luck was withdrawing cash to hand to him as compensation for his wet hoodie. He insisted he was unaware of any threats and that any violence in which he had been involved had been in the course of self-defence. The evidence of Brown's plea did not remove that defence from him. It was open to Miss Smart to argue on his behalf that even if Brown was a robber, the jury could not be sure the appellant was also one. Even if Miss Smart's task was made more difficult by the admission of the plea, as she claims, she still had a defence to run. The fact that the appellant's account lacked credibility had nothing to do with Brown's plea. 21. Accordingly, although the individual members of this court would not have agreed to the plea of guilty being admitted in evidence, and we understand why the single judge has given leave, we were not persuaded the trial judge fell into error. It was open to him to admit the plea of guilty. 22. Even if we had been satisfied that the judge had fallen into error in admitting the plea, the ultimate question for us is whether the conviction is unsafe. It is not. The evidence was overwhelming: the incident was captured on CCTV and the appellant admitted punching Mr Luck for no obvious reason and when he was under no real threat. Further, the idea that Mr Luck would have been prepared to pay £250 for spilling water on the appellant’s hoodie and would have willingly left his credit card and pin number behind or that the appellant could have thought, even in drink, that he was entitled to £250 for a wet hoodie, stretches credulity to breaking point. The defence, as the prosecution at trial argued, bears all the hallmarks of the appellant having fabricated a story to meet the objectively verifiable facts, namely the appellant’s aggressive behaviour caught on camera and the withdrawals and attempted withdrawals from Mr Luck’s bank account. We doubt the jury would have placed any great reliance on Brown's plea, they could see for themselves the circumstances in which Mr Luck's money and card were taken. 23. For all those reasons, therefore, as indebted as we are to Miss Smart for her submissions, and to Mr MacLean-Watt for stepping into the breach at the last moment for today’s hearing, this appeal must be dismissed.
{"ConvCourtName": ["Blackfriars Crown Court"], "ConvictPleaDate": ["5th October 2015"], "ConvictOffence": ["offence of robbery"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Blackfriars Crown Court"], "Sentence": ["data not available"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["LIAM KARL O'BRIEN"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["The appellant accused Mr Luck of having thrown water over him. Mr Luck denied having done so. According to Mr Luck, the men became more aggressive, surrounded him and separated him from his friend. They told him he could not ‘get away with’ what he had done and he should tell them who threw the water or he would have to pay."], "VicNum": ["Mr Luck and his friend Mr Desiato were walking along Islington High Street, looking for a taxi, in the early hours of the morning when they were approached by a group of four men: the three accused, and a fourth man (arrested but not charged). The encounter was captured on CCTV."], "VicSex": ["Mr Luck and his friend Mr Desiato"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["data not available"], "DefEvidTypeTrial": ["The encounter was captured on CCTV."], "PreSentReport": ["data not available"], "AggFactSent": ["punched him hard to the side of the face", "He was threatened that if he did not go to the cash point he would be stabbed and killed.", "demanding he pay them £250."], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["The applicant appeared at the Blackfriars Crown Court charged jointly with Junior Owusu-Sekyere and Kadeem Simon Brown with an offence of robbery"], "CoDefAccNum": ["the three accused"], "AppealAgainst": ["The applicant appeared at the Blackfriars Crown Court charged jointly with Junior Owusu-Sekyere and Kadeem Simon Brown with an offence of robbery. Brown pleaded guilty. On 5th October 2015 the appellant and Owusu-Sekyere were convicted. The issue for this court is whether Brown's plea of guilty should have been admitted in evidence at the appellant's trial."], "AppealGround": ["The grounds of appeal advanced by Miss Smart, in helpful and succinct submissions both orally and in writing, focused on the judge's allowing Brown’s guilty plea to be admitted in evidence. Even if the plea was relevant and admissible under section 74, it was her contention it should have been excluded under section 78."], "SentGuideWhich": ["Miss Smart in R v Kempster [1990] 90 Cr App R 14, R v Nathan Smith [2007] EWCA Crim 2105,", "section 74 of the Police and Criminal Evidence Act 1984 (“PACE”)."], "AppealOutcome": ["this appeal must be dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The evidence was overwhelming: the incident was captured on CCTV and the appellant admitted punching Mr Luck for no obvious reason and when he was under no real threat. Further, the idea that Mr Luck would have been prepared to pay £250 for spilling water on the appellant’s hoodie and would have willingly left his credit card and pin number behind or that the appellant could have thought, even in drink, that he was entitled to £250 for a wet hoodie, stretches credulity to breaking point. The defence, as the prosecution at trial argued, bears all the hallmarks of the appellant having fabricated a story to meet the objectively verifiable facts, namely the appellant’s aggressive behaviour caught on camera and the withdrawals and attempted withdrawals from Mr Luck’s bank account. We doubt the jury would have placed any great reliance on Brown's plea, they could see for themselves the circumstances in which Mr Luck's money and card were taken."]}
{"ConvCourtName": ["Blackfriars Crown Court"], "ConvictPleaDate": ["2015-10-05"], "ConvictOffence": ["offence of robbery"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Blackfriars Crown Court"], "Sentence": ["Don't know"], "SentServe": ["Don't know"], "WhatAncillary": ["Don't know"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Don't know"], "VictimType": ["Individual person"], "VicNum": ["2"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["data not available"], "DefEvidTypeTrial": ["Don't know", "CCTV"], "PreSentReport": ["Don't know"], "AggFactSent": ["He was threatened that if he did not go to the cash point he would be stabbed and killed.", "punched him hard to the side of the face", "demanding he pay them £250."], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["3"], "AppealAgainst": ["appeal against conviction"], "AppealGround": ["guilty plea of co-accused should not have been admitted into evidence"], "SentGuideWhich": ["Miss Smart in R v Kempster [1990] 90 Cr App R 14, R v Nathan Smith [2007] EWCA Crim 2105,", "section 74 of the Police and Criminal Evidence Act 1984 (“PACE”)."], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["conviction was not unsafe"]}
582
Neutral Citation Number: [2021] EWCA Crim 597 Case No: 201904259 B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT INNER LONDON HHJ DONNE QC T20190056 Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/04/2021 Before: LADY JUSTICE THIRLWALL MR JUSTICE KERR and MR JUSTICE FREEDMAN - - - - - - - - - - - - - - - - - - - - - Between: Bruce Chipunza Applicant/Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Audrey Cherryl Mogan (instructed by Laurence & Co Solicitors) for the Applicant/Appellant Paul Casey (instructed by the Crown Prosecution Service) for the Respondent Hearing dates: 02.02.2021 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties’ representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 12:30pm on 23 April 2021. Lady Justice Thirlwall: 1. This is a renewed application for permission to appeal against conviction. We give leave. We are grateful to Mr Casey for the respondent and Ms Mogan for the appellant for their submissions on the appeal. 2. The issue for the jury in this case was whether the burglary of a hotel room was a burglary of a dwelling. 3. On the morning of 12 June 2018, the appellant entered a hotel room in Canary Wharf, London. The hotel guest had checked in the evening before and had gone to work. The housekeeping staff were cleaning her room. The appellant walked in unchallenged. He remained there for a while and rang reception to ask to extend the booking. He was told that the booking was already for three nights. He said he was ringing on behalf of his boss. Shortly afterward he rang and asked for someone to come up and open the safe. The manager went upstairs into the room and opened the safe. There was nothing in it. As the manager left the room, he noticed women’s clothing. He went downstairs and checked the CCTV. He realised that the appellant was an intruder. He went back upstairs and confronted him. The appellant left the hotel and was arrested at a later date. He was interviewed in December 2018 and made no comment. He was charged with burglary. 4. The case was sent by the Magistrates to the Crown Court at Inner London. At the Plea and Trial Preparation Hearing on 15 th April 2019 the appellant pleaded guilty to count 2 on a two-count indictment, burglary contrary to section 9(1)(a) of the Theft Act 1968 . Count 2 was an alternative to Count 1 which was also burglary contrary to section 9(1)(a) of the Theft Act. The facts in support of the two counts were identical. In count 1 the appellant was said to have entered a dwelling, namely Room 2515 in the hotel. In count 2 he was said to have entered part of a building, namely Room 2515 in the hotel. Nothing was stolen. 5. The appellant’s plea of guilty with admission of all the facts was not acceptable to the Crown and the case was adjourned for trial. This took place over 2 days at Inner London Crown Court in October 2019. The appellant was convicted by a majority of 11 to 1. He was sentenced on a third day, 11th October 2019. He had a long history of dishonesty, including for offences of burglary. The trial judge sentenced him to a total of 3 years and 2 months’ imprisonment made up of 30 months’ imprisonment for the burglary on count 1 with a sentence of 8 months’ imprisonment to run consecutively in respect of a separate count of burglary (of the office area of a different hotel) to which he had pleaded guilty. 6. Before the trial, the judge asked the prosecution why it was necessary to proceed with the trial, given the admissions. He was told that it would make a difference to sentence because if convicted of burglary of a dwelling the appellant was liable to a minimum custodial sentence of three years because the conviction would be a third qualifying “domestic” burglary where all three offences were committed after 30 November 1999 ( Powers of Criminal Courts (Sentencing)Act 2000, s.111 ) – unless such a sentence would be unjust. It was the prosecutor’s view that it was in the public interest to have a trial on this issue. The judge told the jury after the verdict “the defendant is actually not going to get any sort of different sentence from the one he would have got as a result of his plea of guilty in any event.” 7. Before the jury heard any evidence the judge drew to the attention of counsel the case of R v Addai Kwame [2018] EWCA Crim 2922 in which a hotel building contractor had used a master key to enter a number of hotel bedrooms and steal items, including a diamond ring. He was charged and convicted of non-dwelling burglary. On the appeal against sentence this court described the offences as similar to dwelling house burglaries. There was no suggestion that the charges were incorrect. 8. The judge pointed out that the Home Office recorded hotel room burglaries as commercial burglaries. He was concerned that the bringing of this case reflected a difference of approach between different CPS areas. During the hearing of the appeal, we asked how many burglaries of hotel rooms had been charged as burglaries of dwellings in the last two years. Despite Mr Casey’s efforts after the hearing, the CPS was unable to provide that information because of the way offences are recorded. We think it likely that there have been very few such charges. 9. The parties referred the judge to the decision of this court in R v Flack [2013] 2 Cr App R (S) 56 CA. The appellant had pleaded guilty to burglary of a dwelling. Nonetheless it was his case that the building he had burgled was not a dwelling, but a building site. The building was a house. From the outside it looked like a dwelling. There were net curtains up in the window. There was a skip outside the house full of builder’s rubbish. No one appeared to be living in the house and the only person present at the time of the burglary was a builder who was laying the floor. The appellant stole his phone from the porch and ran away. The builder chased him and caught him. He was arrested and charged with burglary of a dwelling to which he pleaded guilty on the basis that the house was not a dwelling but a building site. When the case came to the Crown Court for sentence, the judge held a Newton hearing and found that the house was a dwelling and sentenced the appellant accordingly. 10. On the appeal against sentence the court found that the approach taken was incorrect. If there was an issue about whether the house was a dwelling the appellant should not have pleaded guilty to burglary of a dwelling. There should have been two counts on the indictment and a trial could have taken place in which the issue of whether the house was in fact a dwelling would have been decided by the jury. 11. The court in Flack was invited to give guidance as to “how the issue of whether a property is a dwelling-house should be approached, when and where and if it is in dispute.” The court declined to do so on the basis that Flack was not a suitable case. “In an appropriate case it would be a matter for a jury to determine and the directions given by the judge could, if appropriate, be considered by this court. It is however largely a question of fact in each individual case which the jury would have to decide.” The appellant in Flack was subject to the minimum term provisions but in the event the court reduced his sentence, finding it would be unjust to impose a term of three years in that case. 12. The same question came before the Divisional Court in slightly different circumstances in R v Crown Prosecution Service ex parte Hudson [2017] 2 Cr App R 21 (269). In that case the appellant had accepted that he had burgled a house but had pleaded not guilty to burglary of a dwelling because at the time of the burglary it was unoccupied: the tenants had moved out and the next tenants had not been identified. The Deputy District Judge (Magistrates’ Courts) (DDJ (MC)) found that the house was a dwelling and convicted the appellant of burglary of a dwelling. The appellant appealed to the Divisional Court by way of case stated. His appeal was dismissed. The court found that current use as such was not necessary for a building to be a dwelling. It was a matter of fact and degree. The DDJ(MC) was entitled to come to the conclusion that the building was a dwelling. There is a reference in the judgment, obiter, to the fact that a hotel room had been found to be a dwelling in the case of R v Massey [2001] EWCA Crim 531 . This is a misreading of that decision. R v Massey was an appeal against sentence where the appellant had pleaded to the burglary of two hotel rooms. He had not pleaded guilty to burglary of a dwelling. He was sentenced to 5 years’ imprisonment which this court reduced to 4 years’ imprisonment. The appellant had argued that the burglaries were of relatively small commercial premises and should attract a lower sentence. This court considered that on the facts they were "more akin to” domestic burglaries which aggravated the sentence, but not to the extent the judge had determined. The court did not suggest that these were burglaries of a dwelling. The same approach was taken in Addai Kwame. Dwellings 13. The only issue at trial was whether the hotel room was a dwelling at the time of the burglary. The word dwelling is an ordinary word, albeit somewhat old fashioned in 2021. It was not very much in use 20 years ago. In Uratemp Ventures Limited v. Collins (Ap) [2001] UKHL 43 (11th October, 2001) Lord Millett explained its meaning thus, at paragraph 30: “The words "dwell" and "dwelling" are not terms of art with a specialised legal meaning. They are ordinary English words, even if they are perhaps no longer in common use. They mean the same as "inhabit" and "habitation" or more precisely "abide" and "abode", and refer to the place where one lives and makes one's home. They suggest a greater degree of settled occupation than "reside" and "residence", connoting the place where the occupier habitually sleeps and usually eats, but the idea that he must also cook his meals there is found only in the law reports. It finds no support in English literature.” 14. In most cases, it is obvious whether or not a building is a dwelling. Houses and flats are generally built to be lived in, to be used as dwellings. The fact that no one is living in it at the time of a burglary does not necessarily render a building other than a dwelling (see ex parte Hudson above). We can envisage a situation where, for example, a newly built house may not yet be a dwelling. It may well be possible for a building built and previously used as a dwelling to become derelict, or to become a building site. Whether the newly built house has become a dwelling, or the latter remains a dwelling would be a question of fact for a jury if it were felt necessary to litigate the issue. It is not apparent that there has been any concern about the adequacy of sentencing powers in this regard. The maximum sentence for burglary of a dwelling is 14 years’ imprisonment. For a non-dwelling, it is 10 years’ imprisonment (see Section 9(3) Theft Act). In the definitive guideline, Burglary Offences, for domestic burglary (i.e. burglary of a dwelling the sentence range is a community order to six years’ custody. For non-domestic burglary, the range is a fine to five years’ custody. 15. Hotels are not generally built to be used as dwellings. Their commercial function is to provide a temporary place to stay: generally private rooms and bathrooms with access to communal parts and ancillary services in exchange for a nightly payment. We are confident that where no one has checked into it, a standard hotel room cannot be said to be a dwelling. Where someone lives in a hotel long term and uses it as their home, the hotel or a part of it may be a dwelling. Some rooms may be provided within a hotel for staff to live in. Such rooms could be dwellings. Much would depend on the configuration of the rooms and the particular arrangements in each case. The Trial 16. The trial proceeded on the basis that the question of whether the hotel room was a dwelling was a matter of fact for the jury. There were some agreed facts about the hotel. It was a large chain business hotel in Canary Wharf which provided all the usual hotel services in addition to bedrooms with bathrooms. Room 2515 was a standard hotel room. 17. The evidence relied on in support of the prosecution case that this was a dwelling was contained in two statements from the hotel guest which were read to the jury. 18. In her first statement dated 17th December 2018, six months after the offence, the hotel guest said that on 14 June 2018 she was staying as a guest in the hotel in room 2515 on the 25 th floor. She had left the premises at 8am and was contacted at 11.30am and asked to return to the hotel. She returned and was told about the burglary. She was moved at her request to a different room. 19. The next statement is dated June 2019, a year after the burglary and after the PTPH at which the question of whether the hotel room was a dwelling had been raised. She provided further details about her stay. She had arrived at about 7pm on the Monday, the day before the burglary. She could not remember the room number. She would usually stay three nights and spend the rest of the week at her home address in Birmingham. She said “my job is currently based in London in Canary Wharf and has been since November 2017. Consequently, I usually travel from my address in the Birmingham area to Canary Wharf on a Monday morning, and stay at a hotel in the Canary Wharf area until the following Thursday morning, for three (3) nights, before returning to my address in the Birmingham area.” 20. She was asked to describe what she generally did in the room. She said that if she was not out socialising after work with colleagues, she relaxed and slept there, occasionally working there or reading. She ate in the hotel bar area and sometimes worked there too. She used the hotel gym on occasion. She said “I treat my room in the hotel, just like I would any normal room in my house. I use it for relaxing and for my private time”. She had with her just sufficient clothing and other belongings required for a three-night stay. 21. The statements of the hotel manager were also read. The defendant did not give evidence. The Appeal 22. There are two grounds of appeal:- Ground 1: The judge misdirected the jury in providing a definition of “dwelling”. Alternatively, the definition placed undue emphasis on the concept of habitation. Ground 2: The learned judge’s comments on the evidence in the summing up were unfair. 23. As envisaged in Flack it falls to us to review the judge’s directions. The summing up was short, and we take the directions in turn. 24. The judge told the jury “There is no definition of “dwelling” in the Theft Act. It is an ordinary English word and whether a building or part of a building is a dwelling is a question of fact and degree to be determined by you, the jury.” This was correct. 25. The judge sought to give assistance to the jury about what constitutes a dwelling. In our view, assistance was essential. He told the jury, “Section 9(4) of the Act does extend the definition of a “building which is a dwelling” to an inhabited vehicle or vessel. Now, a vehicle, truck, car, train, I suppose, for that matter, or a vessel, a boat or a ship, would not necessarily be thought of as a building, but where it is inhabited, it becomes a building for the purposes of the Theft Act, so you have that extension and that applies to any vehicle or vessel at times when the person having a habitation in it is not there as well as at time when she or he is.” 26. Given that the hotel room was a part of a building it was unhelpful to distract the jury with an inexact summary of a subsection of the Theft Act, the purpose of which was to deem a building a vehicle or vessel. The introduction of the concept of habitation might have been useful, but left unanchored to the facts of the case it was not. 27. The judge went on to say that the jury might think “It also follows that it is primarily the use to which the space is put by the occupier that determined whether it is a dwelling.” 28. It was the Crown’s case (as the judge reminded the jury) that every hotel room in which the witness stayed was a home from home (and so, we infer, a dwelling). It seems to have been overlooked that the witness did not use that phrase herself and it is not easy to see that it was apt. The use to which the room was put was sleeping and relaxing, occasionally working and storing belongings needed for a three-night stay. 29. The judge added “Now the reason a distinction is made between dwellings and other premises is that a dwelling is a space and I use space as a neutral expression, I am sure you understand it is amongst other things considered to be private and secure and an unauthorised intrusion into such a space by someone intent on stealing is likely to lead to greater feelings of distress, violation and possibly endangerment than would be the case for an occupant of other premises, an office, for example”. This direction was agreed with counsel. It is not easy to see how it was helpful or why it was necessary here. Having given the direction the judge did not remind the jury of two matters which supported the defendant’s case that the room was not a dwelling: first, that in this case there was no evidence of any distress, violation or endangerment. At its highest the witness put it, “I no longer felt comfortable staying in that room.” Second, the witness insisted on an immediate change of room, an option which is not generally available after the burglary of a dwelling. 30. The judge singled out for mention a number of arguments made by defence counsel during her speech. The first was the contention that the room could not be a home from home, as the prosecution asserted, because the guest could not remember the number of the room. The judge said “Does that make a difference as to whether it is actually a dwelling or not”. He went on “You might, many years ago, have lived at an address in a particular road. You can remember living there. You might have grown up there. Can you remember the precise number of the address? Maybe not. Does that mean it is not a dwelling? That is a matter for you, but that is an argument that is advanced”. The judge’s view was clear: if a building is a dwelling, a failure to remember its number is irrelevant, but that was not the issue. The relatively small point being made was whether a failure to remember the number of a hotel room occupied for one night might be an indicator that the room was not a dwelling. 31. Counsel for the appellant also relied on the fact that many people had access to the hotel room, unlike a home (cleaning teams, housekeeper, supervisor, managers, security etc). The judge likened this to having a cleaner in one’s home. This was inapposite. A hotel guest does not choose which staff come into their room. That is a matter for the hotel. A householder generally decides who to allow into their home. 32. The judge turned to the fact that Ms Mogan had said that the hotel provided all the furniture, fixtures and fittings in the room and that there was a hotel policy of no smoking with which hotel guests had to comply, unlike a person at home. The judge said “various items, permanent items in the room do not belong to [the hotel guest] but what about university halls of residence, for example, where a student probably spends at least half the year if not a little bit more. Does that mean their room is not a dwelling because the bed and the fittings and the fixtures are provided by the university management?” 33. He then referred to bedsits in multi occupancy with a landlord. “Does it mean it is not a dwelling because the landlord is using the building for commercial purposes and has provided these fixtures and fittings. Does that make it not a dwelling”? 34. A room in a university hall of residence in which a student lives for about half a year is a very different proposition from a hotel room which has been occupied for a single night and in which the same guest is to stay for another two nights before returning to their home. A bedsit or a house in shared occupation where a number of people live all the time are self-evidently dwellings, as is the childhood home referred to earlier. The judge started from the premise that if a place is a dwelling then the fact that the furniture etc was provided by the landlord does not stop it being a dwelling, all of which was undoubtedly correct, but the question for the jury was – was room 2515 a dwelling? It was upon that question that the jury required assistance. 35. The jury would have been helped by a comparison between the childhood home or a home occupied for many years and the hotel room in this case. It would have assisted had the judge identified the features which may make rooms in a hall of residence or a house in shared occupation a dwelling, but he did not do so. He confined his assistance to the direction to which we referred earlier that it was principally the use to which the “space” is put by the occupier that determined whether it is a dwelling. It is unfortunate that nowhere in the summing up did the judge direct the jury about the absence of features that usually characterise a dwelling or the presence of features which pointed away from it being a dwelling. 36. The most striking feature which pointed away from the hotel room being a dwelling was the transient nature of the hotel guest’s occupation of it. She had arrived the previous evening, intending to stay for three nights. In our judgment the judge was bound to invite the jury to consider whether such occupation was consistent with the room being a dwelling rather than simply a place to stay when working away from home. 37. Other factors which pointed away from the hotel room being a dwelling were these: The guest’s home address was in Birmingham. She referred to “staying” in hotels, rather than living there. She stayed in different rooms in different hotels every week. She had no control over which room she had or even which hotel she stayed in. This was all determined by the hotels. Check in and check out times were determined by the hotel 2pm and 12 pm respectively. She had no control over who went into the room when she was not there. Hotel employees had a master key. She was bound by the rules of the hotel as to smoking, fire drills and so on. She had no choice over the décor or furniture in the hotel room. 38. Some of those points would be less important in a case where a person is living in a hotel, using it as their home, receiving mail there. They are nonetheless relevant factors here in determining whether, in the absence of any settled occupation, the hotel room was a dwelling. The points Ms Mogan sought to make to that effect were effectively dismissed by the judge. 39. The omissions in the summing up are surprising given what the judge said to counsel before the evidence was read and what he said to the jury after they had convicted when he told them that he had been looking at the way the government records statistics in respect of criminal offences. He referred particularly to the Home Office statistics in respect of burglaries “If a hotel room is used as it were a permanent residence, a long-term hotel residence, you remember Fawlty Towers, I think the Major used to live there…well that is recorded by the Home Office as a dwelling burglary. But if it is just somebody staying in a hotel for one or two nights it is not, it is recorded as a commercial burglary.” He then referred to this court’s decision in Addai Kwame and commented that the court did not demur from the prosecution’s decision not to prosecute the defendant for burglary of a dwelling. The points he made about the features of the Major’s occupation of the hotel would have been helpful to the jury during the summing up. 40. The judge opined that there should be a protocol to assist consistency, perhaps by reference to the Home Office approach “If, for example, it is the burglary of – I use the halls of residence example earlier on but long-term hostel type accommodation or hotel accommodation then that should be charged as a dwelling. If it is just somebody staying in a hotel for one or two nights then that should not be charged as a dwelling, but the Judge can take into account the fact that it was an occupied room, and I think that will lead to much greater consistency.” Those considerations would have assisted the jury too. Whilst the Home Office Classification Rules and Guidance do not determine the matter since they refer to the rules for counting recorded crime, there are features included which would have assisted the jury in their task in this case. The guidance reads as follows: “A burglary in a ‘long-stay hotel’ whose rooms are let out on a permanent basis (i.e. so that the hotel is the resident’s permanent postal address) should be recorded as a burglary (or aggravated burglary) – residential. A burglary in a hotel whose rooms are let out to guests on a ‘short-stay’ basis (i.e. so that the hotel is not the guest’s permanent address) should be recorded as a burglary (or aggravated burglary) – business and community. A combination of the above two types should be classified according to the victim or victims. In general, burglary of common areas in hotels should be classified as burglary – business and community; and burglary of living quarters inhabited by the proprietor, manager or employees (so that the hotel is their permanent postal address) should be recorded as burglary residential.” 41. We consider it unlikely that there will be many instances where facts such as those in this case will be considered by a jury. For that reason, our observations on the factors which may have assisted the jury should be confined to the facts of this case. 42. We are satisfied that, contrary to the defence submission, the judge could and should have explained to the jury what a dwelling is. It would have been sufficient to say a dwelling is a building or part of a building in which a person is living and makes his/her/their home. The most usual examples of dwellings are houses and flats in which people live and make their homes. Other buildings or parts of buildings may be dwellings. This should have been followed by a list of the features to which we have referred which the jury may have considered pointed towards or away from the room being a dwelling. The judge told the jury on a number of occasions that the decision about whether the room was a dwelling was a matter for them, but the failure to put before them a balanced account of the features which pointed away from the hotel room being a dwelling while focussing entirely (and not just principally) on what the guest generally did when she was in a hotel room rendered the summing up unfair. It follows that we are satisfied that the conviction is unsafe. Conclusion 43. Accordingly, we allow the appeal and quash the conviction on Count 1 of the indictment. Mr Casey does not seek a retrial on the grounds that it is not in the interests of justice. We agree. The original plea of guilty to count 2 was vacated and the count was ordered to lie on the file not to be proceeded with without leave of the court. We give leave to proceed on count 2 and direct that the case be returned to Inner London Crown Court for further listing.
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{"ConvCourtName": ["Crown Court At Inner London"], "ConvictPleaDate": ["2019-04-15"], "ConvictOffence": ["burglary"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No", "Yes"], "PleaPoint": ["Plea and Trial Preparation Hearing"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Inner London"], "Sentence": ["made up of 30 months’", "total of 3 years and 2 months’ imprisonment"], "SentServe": ["Don't know", "Consecutively"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Stranger"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Female"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know", "Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Victim testimony", "Witness testimony", "CCTV"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["long history of dishonesty,"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["conviction"], "AppealGround": ["summing up were unfair.", "judge misdirected the jury"], "SentGuideWhich": ["(Powers of Criminal Courts (Sentencing)Act 2000, s.111)", "Theft Act 1968."], "AppealOutcome": ["quash the conviction on Count 1"], "ReasonQuashConv": ["satisfied that the conviction is unsafe."], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
207
Neutral Citation Number: [2021] EWCA Crim 564 Case No: 201901609 B2 & 202000683 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM the Crown Court at Canterbury Mr Recorder Jonathan Davies T20170037 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/04/2021 Before: VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) LORD JUSTICE FULFORD MR JUSTICE JEREMY BAKER and MR JUSTICE GRIFFITHS - - - - - - - - - - - - - - - - - - - - - Between: Adrian Fanta and Gabriel Iutes First Appellant Second Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr B Kelly Q.C. and Ms F Kenyon (instructed by Henningans Solicitors ) for the First Appellant Mr N Beechey (assigned by the Registrar of Criminal Appeals ) for the Second Appellant Mr A Johnson (instructed by CPS Criminal Appeals Unit ) for the Respondent Hearing dates: 11 th March 2021 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Judgment Approved by the court for handing down. Lord Justice Fulford VP: Introduction Double-click to enter the short title 1. On 25 May 2018 in the Crown Court at Canterbury before Recorder Jonathan Davies and a jury the applicants, Adrian Fanta (now aged 35) and Gabriel Iutes (now aged 23), were convicted of being knowingly concerned in the fraudulent evasion of a prohibition on the importation of goods (cocaine) contrary to section 170(2) Customs and Excise Management Act 1979. 2. On the same day they were each sentenced to 11 years’ imprisonment. 3. Mr Fanta applies for an extension of time of 312 days for leave to appeal against conviction, his case having been referred to the full court by the single judge. Mr Iutes applies for an extension of time of 612 days to appeal against his conviction, his case having been referred to the full court by the Registrar. The Facts 4. On 9 September 2015 in Cochera, France, a lorry bearing Romanian number plates (TMX 16 WXE), was randomly stopped by UK Border Force Officers. The trailer was scanned. Mr Fanta was driving the tractor. He produced a handwritten CMR document to the Border Control Officers (this is, in effect, a consignment note which gives an outline of the nature of the load being carried). It did not accord with the original typed version; in particular, it created the untrue impression that the lorry had been loaded on 9 September 2015 rather than 2 September 2015 as was, in fact, the case. An anomaly in the load was noted. On examination, whilst the trailer legitimately had approximately 24 tonnes of wheat starch on board, 2 hidden supermarket carrier bags were discovered which contained 15 kilograms of cocaine with a street value of over £2 million and a wholesale value of £500,000. 5. A further carrier bag was found in the tractor cab; this was from the same supermarket chain as one of the bags which contained the drugs found within the load. Mr Iutes’s fingerprint was on this bag, although he was not in the vehicle and was accordingly arrested later in the investigation. 6. Michael Trott, the prosecution’s tachograph expert, gave evidence as to the movements of the lorry from 1 to 9 September 2015. Much of his evidence was uncontroversial. It revealed an inconsistency, however, in that Mr Fanta had said that he met Mr Iutes in Ghent on 3 September 2015 whereas the tachograph showed that the lorry was not in Ghent on that date but at Les Bulles. Mr Trott was satisfied that on 1 September 2015 – at which point Mr Iutes’s driver’s card was being used in substitution for Mr Fanta’s – the vehicle was driven from Belgium to Holland, where it was parked overnight. On 2 September 2015 after various manoeuvres in the Sas van Gent area, it was driven back to Les Bulles. The typed CMR document recorded the load being collected on that day. The vehicle remained in Les Bulles from 2 to 9 September 2015. On 3 September 2015 the lorry was manoeuvred in the vicinity of Les Bulles. 7. Fanta used a satellite-navigation device for a trip to Romania, starting on 3 September 2015. On 8 September 2015 the device was in Austria and from there a destination of Les Bulles was selected. It was seized from the cab of the lorry TMX 16 WXE when Fanta was stopped by the authorities. 8. In the early hours of 9 September, with Mr Iutes’s card being used, the lorry TMX 16 WXE was driven from Les Bulles to Sas van Gent, making two stops in the area, although neither were small manoeuvres of the sort one might expect if the vehicle was simply being loaded. At Henri Farmanstraat in Ghent, the tachograph showed that Mr Iutes’s card was removed and Mr Fanta’s inserted. The tracker log recorded the route travelled by the lorry towards the Channel Tunnel. The prosecution submitted the journey to Sas van Gent was a “ distractionary diversion ”, designed to facilitate the lie that the vehicle was driven from the point of loading to the frontier controls. 9. Mr Fanta was arrested and interviewed. He denied any wrongdoing and said that he worked with his father and owned a company called CSM Trams which had been in operation since 2011. He stated that he leased two tractor units and had secured work via a website for a Romanian company, Fircam. He had previously worked for this company. As regards the present events, he was required to collect a lorry from a company called Cargill in Holland and to deliver it to a company called Hi Kim in Devon. He had obtained the details of Mr Iutes from a Romanian website of drivers who were available for work. In August 2015 Mr Fanta met Mr Iutes in a car park in Romania to discuss the possibility of the latter working for Mr Fanta. Some two weeks later they met again, and Mr Fanta gave Mr Iutes the keys to the lorry TMX 16 WXE at Les Bulles, and he agreed to pay him €50 per day. Mr Iutes had shown him some paperwork. 10. Mr Fanta maintained in interview that he had, in the event, driven the lorry because Mr Iutes had been unable to undertake the journey. Mr Fanta had then been delayed because he lost his National Identity Card and had returned to Romania for a replacement. 11. Although he suggested to the officers that he knew nothing about Mr Iutes, he was unable to explain why the latter’s details were stored in his mobile telephone or why they were under the name “Cocoss.” There was conflicting evidence in the case as to whether this potentially referred to “cocaine” or whether it was the Romanian word for a male chicken. 12. Mr Iutes in interview suggested that he met Mr Fanta by chance in a shopping mall in Timisoara. He denied he had put an advert online advertising for work as a driver. He told the officers (during a somewhat inconsistent account) that he had driven the lorry to a location near Antwerp for it to be loaded with some sort of powder. He had returned the vehicle to Mr Fanta. He denied any knowledge of the drugs and said he might have touched the bag in the cab on which his fingerprints were found. 13. Mr Fanta gave evidence at trial that he had created a company in Romania called CFM Transport. He purchased two lorries, one of which he had been driving on 9 September. There were two sets of keys for the vehicles. Over time, he had employed other drivers on full time contracts. He co-ordinated their work, although he also acted as a backup driver. Since 2013 a company called Ewals had provided him with work, usually in Germany and the Benelux Union. When necessary, he visited Romania to obtain the equivalent of an MOT for the vehicles. He had no particular storage site for his lorries, although he parked them from time to time in Les Bulles in Belgium where he knew the owner of premises, a man he referred to as Vasile. This was where, during August and September 2015, the lorry in the instant case was parked. 14. Bursa Transport was the client for the present trip, having placed an advert on their website. The fact that Mr Fanta’s card had been put into the tachograph did not mean that he was with the vehicle at the time between 28 August 2015 and 1 September 2015, and he denied having been with the lorry during that period. It had been arranged by telephone that Mr Iutes was to drive the load. 15. Mr Fanta expected the goods to be delivered on 2 September 2015. However, he received a telephone call from Mr Iutes during which the latter said that he would be unable to undertake the journey because of a “ family problem .” Mr Fanta did not question this as he had had “ all sorts of unpleasant experiences with drivers. ” He decided to deliver the goods himself. He gave instructions to Mr Iutes to take the lorry to Les Bulles. Mr Fanta arrived on 3 September 2015, but he then realised he needed to travel to Romania to collect a new identity card. He produced at trial his identification card which showed a date consistent with this account (8 September 2015). Although he saw Iutes on 3 September 2015, they did not discuss why he was unable to undertake the journey. Mr Fanta joined the lorry near Ghent on 9 September 2015, Iutes having been asked to drive as far as he could towards Calais. Mr Fanta placed the seal on the lorry. 16. He was questioned as to a message sent to the company with whom he had contracted to transport the load: “ Driver lost all document. I sent other driver. Now he crossing GB. Later or tomorrow will be at unloading place. I holiday. Arrive yesterday at office. Thousand apologies.” Mr Fanta explained that the reference to lost documents and the other driver were references to himself. He suggested he was trying to explain why the load was delayed without going into too much detail. 17. He accepted that he had written the CMR when he took over the journey on 9 September 2015. This was for his own records. He accepted that there were errors in the details supplied. 18. When he arrived in Coquelles he had crossed through to the British Border Control where the vehicle was selected for testing. He had indicated to the officials that he had not stopped, by which he meant that he had not stopped on the way to Calais. In relation to the CMR, he handed over the handwritten version because he had personally written it. There was no other reason why he had not handed over the typed version. 19. He accepted that in the first three interviews he had not told the truth as to where the lorry had been parked between 3 and 9 September. He said that he did not wish to be associated with the drugs because this would have led to his being unable to return to Les Bulles. He did not want to mention anything about the garage in Les Bulles. He had lied about giving the keys to Iutes. 20. In cross-examination by counsel, Mr Body (for Mr Iutes), Mr Fanta said it had not occurred to him that Vasile might be responsible for the drugs and he rejected the suggestion that he had been “ in on it .” When cross-examined by counsel for the Crown, he suggested that significant parts of Mr Iutes’s case involved lies by the latter, who he blamed for loading the drugs. 21. Mr Iutes testified that he was a professional driver and lived in Maidstone. He worked for a company called Opal Dial. He had driven lorries within Europe many times and often tried to combine these trips with his return to Maidstone. He said he had met Mr Fanta in Timisoara. He had been on his way back to the UK in his own vehicle when he overheard a discussion between Mr Fanta and others as to a shortage of drivers. He showed Mr Fanta his driving licence and the latter promised to ring him saying that there was a possibility of work. There had been no previous contact between them. 22. He subsequently received a telephone call from Mr Fanta asking him to meet him at an address in Belgium. Mr Iutes decided to go there early as it was on his way back to the United Kingdom. He met a man called Vasile who was a friend of Mr Fanta’s. Mr Iutes undertook some work for him and was given lodgings. He received a message from Mr Fanta via Vasile to load the lorry with wheat flour in Sas van Gent. He then drove the lorry to Holland, loaded it and returned to Les Bulles. There had not been a definite offer of work at this stage. He continued assisting Vasile, hoping that work from Mr Fanta would transpire. His evidence was that he had not agreed to take the lorry to England and at no stage had he said that he had family problems. 23. On 3 September 2015 Mr Fanta arrived in Les Bulles but after an hour or so he realised that he had left his ID card in Romania and would have to return. Mr Iutes stayed in Les Bulles and Vasile asked him to drive the lorry towards Calais to save Mr Fanta driving hours. Mr Iutes drove to the loading place because he knew there would be a parking space. Mr Fanta subsequently rang him and told him to go to the address of a company called Ewals. He did so, gave the lorry to Mr Fanta and returned to Les Bulles. 24. He had looked in the cupboards inside the lorry and had innocently touched the bag on which his fingerprint was found. He had no knowledge of how the drugs were put into the lorry. 25. It follows that the accounts of the two appellants were markedly at variance. The defence for each applicant, moreover, was not simply that he was an innocent “ dupe”, lacking any responsibility for the drugs found on the trailer. Instead, they implicated each other in this offending. During Mr Fanta’s evidence, whilst being cross-examined by Mr Wright, he blamed Mr Iutes for placing the drugs on the vehicle: “MR WRIGHT: Well, there were only two people involved with that lorry, weren't there; there was you and Mr Iutes. INTERPRETER: Yes. MR WRIGHT: There were only two people involved in that load of 24 bags of wheat starch, weren't there? INTERPRETER: The loading was performed by (inaudible) yes. MR WRIGHT: That wasn't quite the question I asked. Both of you were involved with that vehicle that had the 24 bags of wheat starch, weren't you? INTERPRETER: Yes. MR WRIGHT: Nobody else was involved? INTERPRETER: No. MR WRIGHT: No. You say it's not you. INTERPRETER: Yes. MR WRIGHT: Then who's left? INTERPRETER: Iutes. MR WRIGHT: Yes. So are you saying that if it wasn't you it was Mr Iutes? INTERPRETER: It is a possibility. MR WRIGHT: Well, what other possibility is there? INTERPRETER: I don't know.” 26. Although Mr Fanta tried in this passage to hedge the position slightly, the exchange involved the clearest implication of Mr Iutes. Mr Fanta contended that his friend Vasile was uninvolved with the cocaine. Mr Body suggested during cross-examination of Mr Fanta that he had put the cocaine on the lorry whilst en route to Calais (“ You weren’t loading drugs then, into your lorry? ) and that he was telling lies because he was in trouble, thereby blaming someone else. In his speech to the jury, Mr Body contended that it was most likely that either Vasile or Mr Fanta had placed the drugs on the vehicle. Mr Body accused Mr Fanta of a pattern of deceit. It follows that the case of each appellant was that his co-accused had either committed the offence or was likely to have done so. This was, therefore, a paradigm “ cut-throat ” defence. 27. In this regard, it is revealing to note that on 8 February 2018 there was an application to break the trial date. Mr Iutes was in custody in Spain and the Crown Court Attendance Note reveals that Judge O’Mahoney ordered a joint trial given there were cut-throat defences. As a result, the trial date of 5 March 2018 was broken and the case was refixed for 14 May 2018. It appears, therefore, that the court fully appreciated the inevitable nature of the defences to be advanced. The Bad Character Application 28. Against this background, on 4 September 2017 Mr Keogh, who represented Mr Fanta at trial, uploaded an application for evidence of Mr Iutes’s bad character to go before the jury. Perhaps unsurprisingly, this was opposed by Mr Iutes. The evidence in question related to an importation of 43 kilograms of cocaine into the UK on 18 July 2015 (some 6 weeks before the present importation). A fingerprint of Mr Iutes had been found on a cash receipt in the cab of the lorry from which the drugs were seized. Mr Iutes maintained that his print was on the receipt because he had provided some assistance (at the request of his employer) to a new driver he had not met before. The driver was a Romanian man, Savin Bulubasa, who was employed by a transportation company called Opal Dyall. The cash receipt was for a return ferry ticket bought by Mr Iutes from an agency in Dover on 14 July 2015 ( viz . four days before the importation of cocaine). The company was called Kadir Demir Ltd, a road transportation company operating in the UK, Western Europe and Turkey. Just over a month earlier, on 9 June 2015, Mr Bulubasa had entered the United Kingdom driving the lorry at 3.20pm (Calais to Dover) and Mr Iutes arrived on the same day at 8.15pm in a BMW motor car (Calais to Dover). 29. Mr Bulubasa, who coincidentally had been represented by Mr Keogh at his trial, was acquitted of this importation of drugs. His acquittal was set out in the schedule of relevant non-sensitive unused material in the present trial at item 109, “Bulubasa was charged with being knowingly concerned in the importation (of cocaine) and subsequently stood trial at Snaresbrook Crown Court in January 2016. The jury returned a verdict of not guilty.” This record was prepared by the prosecution and was available to all counsel and solicitors in the present trial. When Mr Keogh represented Mr Bulubasa he was unaware of the existence of Mr Iutes, still less that his fingerprint was on the receipt in the lorry’s cab. He became aware of this via item 116 on the schedule to which we have just referred, “ Further to Item 109 above, relating to Savin BULUBASA and detection of 43.25 Kg of cocaine. A piece of paper found in the cab of Bulubasa’s tractor unit – specifically a cash payment receipt to be presented to the ferry company for travel, referenced KC/01/18/07/15 was found to contain a fingerprint matching that of Gabriel Ionut IUTES DOB 05/01/1977 ”. The entry on the schedule was dated 19 April 2017 by the officer who completed it and it was signed by the reviewing lawyer on 28 April 2017. Mr Keogh received what is called a “ Fingerprint Identification Notification ”. 30. The application was made pursuant to section 101(1)(e) Criminal Justice Act 2003 (“ CJA ”), which provides that: “101 Defendant's bad character (1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if— […] (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant, […] 31. In the written application, the matter was put as follows: “This is a cut throat case in which Fanta immediately in police interview suspects Iutes as responsible for the placing of the cocaine in the load. The issue as between defendants is which of them put the cocaine in the load. Iutes’ print is on a bag in the (lorry) cab; that bag is of the same type as the bag wrapping the cocaine in the load. The discovery of Iutes’ print in a cocaine load (cab) 6 weeks earlier has substantial probative value on the issue of which of the defendants has an association with cocaine smuggling and which put the cocaine in this load.” 32. Mr Body, on behalf of Mr Iutes, maintained in his written response to the application that as far as his lay client was concerned there was no cut-throat defence: “ It is not Mr Iutes case that Mr Fanta is responsible for the drugs being in the lorry it is his case that he is not responsible and does not know who is .” However, we interpolate to observe that in the event neither applicant identified a potentially credible “third party” who had the opportunity to place the drugs on the lorry and to retrieve them on arrival in the UK. It is unremarkable in those circumstances – indeed, we would suggest it was inevitable – that Mr Body was, in due course, to allege repeatedly that Mr Fanta bore responsibility for the importation of the drugs. 33. Section 112 CJA defines an “ important matter ” as “ a matter of substantial importance in the context of the case as a whole .” Therefore, the judge assessed whether the evidence of Mr Iutes’s bad character was of substantial probative value, and he posed for himself the question whether the evidence had an enhanced capacity to prove or disprove a fact in issue. He indicated that the purpose of the first requirement under section 101 (1) (e) was to ensure so far as possible that the probative strength of the evidence removed the risk of unfair prejudice. The Recorder was satisfied that in assessing probative value, he was not required to assess each piece of evidence in isolation from the rest of the evidence. 34. The judge determined that the important matter in issue in the case was that each of the accused blamed the other. The contention by Mr Fanta was that Mr Iutes’s fingerprints had been found in similar circumstances on these two occasions, and this supported Mr Fanta’s case that he was an innocent dupe and that Iutes was solely responsible for the drugs in the lorry. The judge concluded that the evidence in those circumstances had substantial probative value in relation to the issue of who put the cocaine in the lorry and whether one of them was unconnected with this venture. He determined this evidence was of substantial importance in the context of the case as a whole. 35. Given the conclusion as to substantial probative value and substantial importance, there was no discretion to exclude the evidence. Section 104 CJA was not relevant as this was not a propensity case and it would be a matter for the jury whether the evidence assisted them in their consideration of the issues. The Addendum Defence Statement 36. On 6 September 2017, an addendum Defence Statement, which was unsigned and undated, was uploaded by Mr Keogh onto the Digital Case System. This occurred eight months before the trial and two days after the bad character application was uploaded. The first Defence Statement was dated 15 April 2017, four days before the officer, Mr Chisholm, signed entry 116 on the schedule of relevant non-sensitive unused material which revealed Mr Iutes’s fingerprint on the receipt in Mr Bulubasa’s cab. Mr Keogh in his oral evidence before us stated that the entirety of the contents of the addendum Defence Statement reflected his instructions from Mr Fanta, albeit he had overlooked to send the completed document to Mr Fanta. He accepted this was an error on his part. It set out the following: “ Section 5(A)(1)(a) of CPIA 1996 as amended by the CJA 2003 – The General Nature of the Accused Defence The defendant in his first DCS stated that he was unaware of the drugs. At that stage given that the DCS was to set out his defence it was considered that this assertion of lack of knowledge was sufficient. As matters have progressed the defendant submits this further addendum DCS to clarify matters. The prosecution case is that the drugs were wrapped in a plastic bag that was the same as the plastic bags in the drivers cab. The prosecution invite thereby an inference that a person associated with the drivers cab must be responsible for the insertion of the drugs. The 2 people associated with the drivers cab are Mr Fanta and Mr Iutes. In police interview Mr Fanta stated that he suspected Mr Iutes was responsible for the drugs. Subsequently Mr Iutes’ fingerprints have been discovered on a cash receipt in the drivers cab of a lorry driven by Savin Bulubasa that was carrying 43 kg cocaine. The Bulubasa importation was 6 weeks before the arrest of Mr Fanta. Mr Fanta submits that this association between Mr Iutes and the driver cabs in this present case and the Bulubasa case is probative of the issue between the defendants namely which of them was responsible for the drugs being put in the load. […]” The Appeal Fanta 37. This applicant’s appeal has changed significantly in its substance between the matters relied on in the Grounds of Appeal dated 18 April 2019 and the Skeleton Argument and Perfected Grounds of Appeal Against Conviction dated 15 February 2021 (the latter document was uploaded onto DCS 11 days before the hearing of this application), on the one hand, and the submissions during the hearing before this court, on the other. As set out in writing, a number of grave assertions were made against the appellant’s trial counsel, Mr Keogh, of which only a limited number formed part of the appeal as finally presented by Mr Kelly Q.C. and Ms Kenyon. The applicant relied substantively in his written submissions on a police caution which Mr Keogh accepted on 2 May 2018 for possession of Class A drugs (cocaine) on 10 April 2018, about a month before the trial. Put shortly, he had inadvertently placed a wrap of a small quantity of cocaine in an envelope containing a cheque which he sent to a set of barristers’ chambers. Following the caution, on 19 December 2018, he was convicted by his professional body of i) having failed to act with integrity; ii) having behaved in a way which was likely to diminish the trust and confidence which the public places in him and his profession; and iii) having behaved in a way which could reasonably be seen by the public to undermine his integrity. He was reprimanded and fined £750. 38. In the written grounds, the appellant maintained that he was unaware of Mr Keogh’s caution. He complained that throughout the trial Mr Keogh’s conduct was erratic, and at times aggressive particularly whenever he asked for clarification of, or questioned, the decisions that Mr Keogh had taken on his behalf. He suggested that he was rebuffed by Mr Keogh, who inter alia stated, “I’ve been doing this for years, I know better, don’t ask” . Fanta also asserted that Mr Keogh’s overall “ demeanour and presentation ” at trial was bombastic, brusque, flushed, and he appeared to be in a rush, including when he was making submissions or presenting the appellant’s case. 39. It was suggested that Mr Keogh had “ arguably (been) under the influence of drugs in the weeks leading up to the trial” which directly affected his overall conduct and competence during the proceedings. It was contended Mr Keogh displayed a serious lack of judgment when making decisions. He acted, furthermore, in defiance of, and without instructions from, the applicant. The applicant additionally relied on three convictions of Mr Keogh for common assault committed against three members of the public in September 2018. It was suggested in the written Grounds of Appeal that these convictions “ were […] relevant by proximity in time to Mr Fanta’s trial and his complaint that he found (Mr Keogh) to be brusque in his manner. This evidence further sheds light on (Mr) Keogh’s overall conduct and state of mind at the time, in the space of 6 months accumulating four convictions ”. As it transpired, these three latter convictions were not the subject of any submissions during the hearing of the appeal. 40. It would be wrong to downplay, still less to dismiss, the seriousness of these assertions. The appellant’s original contention was that Mr Keogh had behaved in a wholly unprofessional way, in part because he was labouring under the influence of cocaine, either whilst preparing the case or during the trial, or both. Either way, it was asserted that cocaine had impaired his competence and performance. Additionally, it was submitted that his convictions for common assault supported the suggestion that his personal conduct, for instance by behaving brusquely, was wholly unprofessional. In the event, in essence none of these allegations have been supported by evidence. The single judge in referring the application to the full court ordered, inter alia : “ 12. At present there is no witness statement from the applicant to substantiate the assertions in the grounds of appeal. This must be remedied, to a timetable set by the Registrar ”. Although it was quite clear, therefore, that a sustainable foundation for the allegations against counsel needed to be provided, no application to introduce evidence from Mr Fanta (by way of Form W) was submitted in advance of the hearing of the appeal. Instead, a completed Form W was received 7 days after the hearing of the appeal, dated 17 March 2021, following an enquiry by the Criminal Appeal Office as to whether one had been provided. Although a statement from Mr Fanta dated 18 September 2020, entitled “ Statement in Support of Appeal Grounds ”, was sent to the Criminal Appeal Office, the leave of the court was not sought to introduce this evidence. On the morning of the hearing, the court was told that the appellant did not propose to seek leave to give evidence in person. In the result, there is no support for the assertions as to the alleged behaviour by Mr Keogh towards Mr Fanta. There is, therefore, simply no substance to the truly serious contention that Mr Keogh had prepared or conducted the appellant’s defence impaired by, or under the influence of, class A drugs. No evidence has been called from any of those who attended the trial to support the allegedly bombastic, brusque, flushed, erratic, rushed and aggressive behaviour as alleged in the Grounds of Appeal. None of these allegations were put to Mr Keogh when he gave evidence. The court refrained from enquiring into matters covered by legal professional privilege, but it has been a source of particular concern to us that there was a significant lack of clarity as regards the basis on which this appeal was to be presented until the commencement of the hearing. Allegations of the utmost seriousness were advanced in writing, only to be abandoned at the last moment. Mr Keogh would have been expecting to be crossexamined in accordance with these grave assertions. 41. It has been necessary, therefore, to disentangle the grounds that were advanced during the hearing from the grounds that have not been pursued. The matters relied on by Mr Kelly in his oral submissions are all linked to the strategic approach Mr Keogh adopted as regards Mr Iutes, together with a suggestion that he misled the court as to whether Mr Bulubasa had been convicted. They can be summarised as follows: i) Mr Keogh pursued a cut-throat defence in a joint enterprise case when this tactic was unjustified. ii) Mr Keogh uploaded an addendum to the Defence Statement on 6 September 2017 without the appellant’s knowledge or consent. iii) Mr Keogh advanced the bad character application against Mr Iutes “ without any authority or instructions ” from the appellant. iv) In making the bad character application Mr Keogh misled the judge and the jury into concluding that Mr Bulubasa had been convicted of being knowingly concerned in the importation of cocaine into the United Kingdom. 42. Notwithstanding the submissions or assertions that have been advanced as to what the appellant allegedly knew or did not know or what Mr Keogh said or did not say, the only evidence before this court, in addition to the evidence at trial and Mr Keogh’s disciplinary and criminal findings, came from Mr Keogh and Ms Sabina Postolache who testified before us and were both cross examined, first, by Mr Johnson for the respondent and, thereafter, by Mr Kelly for the appellant. We intend to limit our analysis to the evidence that is properly before this court, as opposed to allegations that were unsupported by fresh evidence. 43. Mr Keogh testified that he acted for Mr Fanta throughout the proceedings, and he indicated Mr Fanta did not express any dissatisfaction with his representation. He was not under the influence of cocaine whilst preparing for the trial or during it (and, as just rehearsed, he was not cross examined to the contrary). He conferred regularly with Mr Fanta, before and after court and during breaks. Their working relationship was good. 44. The amended defence statement was not seen in advance or signed by Mr Fanta, which, as set out above, Mr Keogh accepted was an error, albeit it reflected his instructions (see [36] above). Furthermore, the bad character application was made in accordance with Mr Fanta’s express instructions, and it was discussed with him, originally in conference and subsequently during the trial. There was a conference on Friday 1 September 2017, which was reflected in a brief note prepared by Ms Postolache. The risks of a cut-throat defence were canvassed, and they were considered worth taking. Mr Keogh explained that the evidence suggested that at least one of the defendants was involved, and Mr Fanta’s express instructions were that Mr Iutes had been a party to the importation. 45. Mr Keogh had previously represented Mr Bulubasa, but he had not heard the name of Mr Iutes before Mr Fanta’s prosecution. Again, as set out above, he became aware of the Iutes fingerprint evidence only through prosecution disclosure of unused material in the present trial at some point after 28 April 2017 (see [29] above). Mr Bulubasa’s acquittal was referred to explicitly in the unused material; all counsel in the Fanta and Iutes cases were aware of it. Mr Keogh believed the judge had also been informed, although he could not be sure. He considered Mr Bulubasa’s acquittal to be inadmissible, although he would have wished to introduce it in evidence. 46. Ms Sabina Postolache is now a solicitor at Alexander JLO, and at the time of the trial she was a paralegal under the supervision of a partner at the firm. She was with Mr Keogh at the conference with Mr Fanta on Friday 1 September 2017, shortly before the trial was originally due to begin. She remembered Mr Fanta saying that Mr Iutes was the only person other than him who could have placed the drugs on the lorry. She thought this was important, and hence she made a note of it in a brief attendance note (“ Iutes only one that could’ve done ”) as shown to the full court. Mr Keogh told Mr Fanta about the Iutes fingerprint evidence in the unused material. Mr Fanta said that this discovery confirmed his suspicions (“ this is it ”) and agreed that this evidence should be part of his case, and that Iutes should be blamed for the drugs in the lorry. Ms Postolache attended some of the trial. Mr Fanta seemed pleased with the way it was being run. 47. Mr Kelly submits that it was “ wholly unreasonable ” for Mr Keogh to have advanced a cut-throat defence. He argues that the defence presented by Mr Keogh “ ran wild ” and the tactics amounted to “ real incompetence ”. We profoundly disagree with Mr Kelly’s analysis. In our view, there was no choice but to recognise the inevitable logic dictated by the evidence in the case. The two applicants disagreed about how and where they met, along with the arrangements for the trip. They gave conflicting accounts as to whether it had originally been agreed that Mr Iutes was going to undertake the Channel crossing. Neither identified a credible third person who could have loaded the drugs onto the lorry, whilst being in a position to retrieve them in the UK. As we have already set out, this was a paradigmatic cut-throat defence; indeed, it was inescapable that each accused would ultimately be led into implicating the other in order to seek an acquittal, given they were the two most likely individuals to have committed this offence, either together or separately. Counsel for each applicant cross-examined the co-accused and made final speeches on this basis. In any event, we accept unreservedly the evidence of Mr Keogh and Ms Postolache that the case was advanced in accordance with Mr Fanta’s express instructions: he blamed Mr Iutes for the illegal importation from the start of his interviews with the police (“ someone else has, er, loaded the vehicle and all my personal suspicions are now aimed at that person ”), and he had good reason to support the introduction of the bad character evidence, which we accept he said confirmed his suspicions about Mr Iutes’s responsibility for this criminality. 48. Mr Kelly is correct to observe that cut-throat defences often involve consequential damage to those who advance them. However, this is simply one of the factors in criminal cases that sometimes need to be confronted and on occasion – as in the present case – it is an unavoidable feature of the trial process. Mr Kelly highlights that Mr Body in cross-examination of Mr Fanta asked him whether he had ever spoken to Mr Bulubasa and whether he had been recommended Mr Bulubasa’s defence lawyers. Mr Fanta denied any previous knowledge of Mr Bulubasa. Moreover, in his closing speech, when addressing the suggested coincidence of the two contemporaneous Channel crossings of Bulubasa and Mr Iutes, Mr Body made a comment to the effect that, “ It is a greater coincidence that Mr Fanta happens to be represented by the same legal team as Mr Bulubasa. Coincidences do happen. It is certainly not evidence against Mr Iutes ”. Mr Kelly contends that this comment was “ fraught with error ” which was “compounded by (Mr Keogh’s) silence ” and was “ highly prejudicial ”. He criticises Mr Keogh for not intervening and for failing to apply for the jury to be discharged. We consider this submission to be without merit. Analysed strictly, Mr Body did no more than juxtapose two different situations so as to make the remark that coincidences can be without meaning. Mr Body did not suggest that there was anything unprofessional or suspicious in Mr Keogh accepting instructions from both men or that his association as an advocate with these two accused was to be held against Mr Fanta. If there was, nonetheless, a secondary or subliminal contention being advanced by Mr Body in cross-examination and in his closing speech (by highlighting the coincidence of a connection between Mr Fanta and Mr Bulubasa via their legal representative), Mr Keogh would only have underscored any slight prejudice that had been created by raising the matter in front of the jury. An application for a retrial on this slender basis would have been bound to fail. If requested, the judge could have dealt with the point in the summing up, but this again would have served to draw attention to a passing observation in the co-accused’s closing speech which, on analysis, was directed at the fact that coincidences can be without meaning. That both men had used the same criminal lawyer was clearly a factor without any significance. 49. Additionally, the prosecution explored in cross-examination of Mr Fanta whether he had been aware of the importation of 43 kilograms of cocaine into the UK on 18 July 2015 because he had worked in “ close harmony ” with Mr Iutes. This was denied by Mr Fanta. Contrary to Mr Fanta’s written submissions, the prosecution were entitled to explore this line of questioning, which in any event was wholly unproductive. In Edwards [2005] EWCA Crim 1813 ; [2006] 1 Cr App R 3 , it was held that evidence admitted at the accused’s behest could thereafter be used for any relevant purpose: “3. […] It should be explained why the jury has heard the evidence and the ways in which it is relevant to and may help their decision, bearing in mind that relevance will depend primarily, though not always exclusively, on the gateway in s.101(1) of the Criminal Justice Act 2003, through which the evidence has been admitted. For example, some evidence admitted through gateway (g), because of an attack on another person's character, may be relevant or irrelevant to propensity, so as to require a direction on this aspect. Provided the judge gives such a clear warning, explanation and guidance as to use, the terms in which he or she does so can properly differ. […]” 50. The “ other ” suggested relevant purpose on which counsel seeks to rely should usually be canvassed with the judge before it is deployed – to ensure that the bad character material is not to be used impermissibly – but that aside, this questioning was a demonstration of the potential consequences of a defence of this kind. In the event, the suggestion that Mr Fanta knew Mr Bulubasa led to a dead end, as it was unsupported by any evidence. This complaint is without credible foundation. 51. Mr Kelly criticises the lack of a written record, or the lack of detail in the record, of some of the conferences between Mr Keogh and Mr Fanta leading up to and during the trial. This most particularly relates to the very brief note of the conference on 1 September 2017. Although a better recording could and perhaps should have been taken, we have borne in mind two principal considerations. First, a number of the meetings between Mr Fanta and his lawyers were reflected in seemingly properly compiled records. These included the occasions of attendance on Mr Fanta at the police station, and conferences on 9 February 2017, 18 April 2017 and 1 September 2017. More particularly, reflecting no doubt the realities of modern-day digital communication, there were 76 emails between Mr Fanta and Ms Postolache in the period 17 December 2015 – 25 May 2018. Some of these were essentially formal in nature but others dealt with the substance of the case, including the process of preparing Mr Fanta’s comprehensive proof of evidence. Second, with a few exceptions such as whether the accused is to give evidence and a decision not to call alibi witnesses, the tactical decisions during a trial are for counsel/the advocate to make: Farooqi [2013] EWCA Crim 1649 per Lord Judge CJ at [107]-[108]. It is sensible to discuss these matters with the defendant and to take into account his or her views, which should be recorded if practicable, at least in outline (as strongly recommended by this court in Anderson [2010] EWCA Crim 2553 at [52]), but ultimately decisions such as whether to advance a cut-throat defence are for counsel/the advocate. Furthermore, we are wholly satisfied that Mr Fanta was informed that there was to be a bad character application and that a cut-throat defence was to be advanced and that he positively supported these tactics. It is to be observed finally that although the note on 1 September 2017 was brief, the central record for the purposes of this application was clear: “ Iutes only one that could’ve done ”. We have no doubt that this reflected Mr Fanta’s instructions to Mr Keogh and Ms Postolache. When crossexamined, Mr Fanta was reluctant to put it any higher than expressing his suspicion that Mr Iutes was responsible for this criminality. This is unexceptional. It frequently happens that, whilst in the witness box, an accused who is running a cut-throat defence pulls back, at least to an extent, when asked to point an accusing finger directly at another occupant of the dock. 52. Mr Kelly made much of a suggested uncertainty as to whether the judge and counsel (other than Mr Keogh) knew that Mr Bulubasa had been acquitted. He sought to rely on an email provided shortly before the hearing of the present application sent, we were told, by prosecuting counsel at trial, Mr Wright, which included the observation that although he could not be 100% certain, he was “ pretty sure ” he did not know Mr Bulubasa had been acquitted. There was no application to receive fresh evidence under section 23 Criminal Appeal Act 1968, no Form W was submitted until six days after the hearing (following an enquiry from the Court of Appeal Office), and no submissions were advanced as why the court should consider a brief email rather than the witness’s live testimony. There was no explanation as to why this was being dealt with at the last moment, in this wholly unsatisfactory manner. We note that there is no indication as to whether Mr Wright had been reminded of the entry on the prosecution’s schedule of relevant non-sensitive unused material at item 109, “Bulubasa was charged with being knowingly concerned in the importation (of cocaine) and subsequently stood trial at Snaresbrook Crown Court in January 2016. The jury returned a verdict of not guilty” which we presume, as prosecution counsel, he would have read. Instead of applying to introduce evidence from Mr Wright following the relevant procedures ( viz. submitting a Form W, together with a statement from the witness in the form prescribed by section 9 Criminal Justice Act 1967) the court was provided with this brief document and “ invited to indicate its stance as to the contents of the email ”, a step the Court declined to take. This was a wholly inappropriate way to approach introducing evidence in the Court of Appeal (Criminal Division). Applications should be made in conformity with the court’s procedures, which will afford the respondent appropriate time to provide considered submissions; thereafter, the court will be able to decide whether to admit the evidence, either as a document or by way of live evidence. In the event, we decline to admit this material which, in the form presented and given the significant uncertainties, has no weight. 53. In these circumstances, we are unpersuaded that there is any substance to the complaint that Mr Keogh deliberately misled the court as to whether Mr Bulubasa had been convicted or acquitted, particularly bearing in mind the entry at item 109. We would add that since this was a cut-throat defence, it would have been advantageous (rather than, as suggested by Mr Kelly, to be disadvantageous) for Mr Bulubasa’s acquittal to have been presented to the jury, as it would have been an added pointer to Mr Iutes’ culpability in relation to the earlier trip ( viz . if not Mr Bulubasa, then it was more likely that Mr Iutes was responsible). There is no logic to the contention that Mr Keogh deliberately withheld this information. 54. It is submitted that the judge permitted the prosecution to follow an impermissible line of cross-examination, in that Mr Fanta was questioned at length on Mr Iutes’s interview when the latter had yet to give evidence and it is suggested that prosecuting counsel put the case on a wrong factual basis, without correction. Although Mr Iutes’s interview was not evidence against Mr Fanta until Mr Iutes gave evidence about its contents, in the event he did testify and he was asked about the interview. Questions, furthermore, could have been legitimately framed during cross-examination on the basis of the contents of his interview without creating the impression that its contents, at that stage, were admissible against Mr Fanta. This complaint is without substance. We consider that the complaints additionally pursued as to suggested mistakes by prosecuting counsel in the case that the Crown put in cross-examination are without substance. None of the examples cited cause us any concern as to the safety of the conviction and in the main they were corrected or neutralised, for instance by Mr Fanta in the way he answered the questions. 55. In the circumstances, the Grounds of Appeal advanced by Mr Kelly are not made out, and in our judgment Mr Fanta’s conviction is safe. Iutes 56. On behalf of Mr Iutes, it is submitted by Mr Beechey that the bad character evidence relating to the applicant’s fingerprint on a receipt should not have been admitted because: i) There was never a proper basis to trigger section 101(1)(e) CJA as Mr Fanta was not advancing a cut-throat defence either explicitly or impliedly; ii) Mr Keogh was responsible for an incompetent decision to advance a cutthroat defence when this was not justified; iii) The evidence did not in any event constitute bad character evidence as defined by the CJA; iv) The evidence did not pass the substantial probative value test in section 101(1)(e) CJA and it was not capable meeting the relevant test; v) The evidence, if it was bad character evidence, was such as to be likely to lead to satellite litigation and a loss of focus by the jury as to the real issues in the case; vi) If it was not bad character evidence, there was no basis on which the evidence could be admitted as it was irrelevant; and vii) The admission of the evidence was prejudicial and introduced the concept of propensity to commit similar offences to that with which he was charged, that did not exist on the evidence. 57. In the alternative, if the evidence was correctly admitted, then the conviction is unsafe because the judge: i) Failed to control the extent and use that the evidence could be put to, and by whom it could be deployed; and ii) Failed to direct the jury in relation to any of the matters set out in the Crown Court Compendium at Chapter 12-2 and 12-7, namely purpose, weight, prejudice, credibility and that they must not convict solely on the basis of it. 58. These submissions are broadly supported by Mr Fanta. 59. The first issue that falls for consideration has been addressed above, namely whether there was a proper basis to trigger section 101(1)(e) CJA (“ it has substantial probative value in relation to an important matter in issue between a defendant and a codefendant ”). As we have already concluded, Mr Fanta was advancing a cut-throat defence. Moreover, the authorities are clear that whether or not the accused are directly arguing that the other had committed the offence, if both were impliedly doing so because the only logical consequence was that the offence must have been committed by the other defendant, then this constitutes an important matter in issue (see Phillips [2011] EWCA Crim 2935 ; [2012] 1 Cr App R 25 (332): “44. […] The important matter in issue in a “cut-throat” case may, as in the present case, be the issue whether either or both defendants committed the offence and, accordingly, whether one is falsely (expressly or by implication) blaming the other . […]” per Pitchford LJ). 60. In our judgment, this was relevant bad character evidence. As set out above, Mr Iutes’s explanation in the present case was that he had looked in the cupboards inside the lorry and had innocently touched the bag on which his fingerprint was found, which was from the same supermarket chain as one of the bags which contained the drugs found within the load. The credibility of that explanation was potentially significantly reduced when it was known that in the relatively recent past (six weeks before the present importation, on 18 July 2015) his fingerprint had been found on a cash receipt in the cab of the lorry entering the UK from which 43 kilograms of cocaine had been seized. The cash receipt was for a return ferry ticket bought by Mr Iutes from an agency in Dover on 14 July 2015 ( viz . four days before this earlier importation of cocaine). In considering the credibility of the account of Mr Iutes, to the effect that he had not been involved in the present importation and that there was an innocent explanation for the presence of his fingerprint on the bag within the cab in the present case, it was relevant for the jury to consider Mr Iutes’s allegedly innocent association or link on another occasion in the recent past with an importation of drugs, when his fingerprint was found on one of the documents that was directly relevant to the cross-channel trip by the lorry on which the drugs were concealed. This earlier incident potentially threw light, therefore, on the truthfulness of Mr Iutes’s account that there was an innocent explanation, unconnected with the present importation of cocaine, for his fingerprint on the bag. As Mr Fanta’s case was presented at trial, it would potentially have helped expose a lying defence on the part of Mr Iutes. 61. We are conscious that Mr Iutes was not charged with an offence arising out of the importation on 18 July 2015, and we have exercised particular caution as a result. However, in this context we have found assistance in the decision of this court in R v Hay 2017 EWCA Crim 1851 . At paragraph 21 of the judgment, Simon LJ set out that: “[...] A "matter in issue" can arise when a defendant seeks to explain potentially incriminating evidence of association with someone involved in a crime as "innocent association" or to rebut coincidence. Whether or not an association is innocent or coincidental may be an important matter in issue between the defendant and the prosecution within the meaning of section 101(1)(d).” 62. It was for the jury to determine whether the evidence of the fingerprint on the cash receipt had a material impact on their evaluation of Mr Iutes’s explanation of “ innocent association ” with the supermarket bag in the cab of the lorry on which the drugs in the present case were found. This material had “ substantial probative value ” in that it was relevant, in a substantive way, to a critical item of evidence against Mr Iutes, and it raised the critical question of whether it was simply a coincidence that his fingerprints had been found in broadly similar circumstances on two occasions within six weeks. The introduction of this evidence did not lead to satellite litigation and it was not introduced to demonstrate propensity. It was not unfair to admit this evidence. 63. The judge directed the jury as follows on this issue: “The prosecution say that Mr Fanta and Mr Iutes each played their part in a joint effort to get that cocaine into the UK and the prosecution say that the evidence you have heard proves that. On the other hand, Mr Fanta says that he was innocent, an innocent dupe in all this and that he was used, must have been used to get the cocaine into the UK when he had no idea at all that it was in the back of the lorry and although his actions brought the cocaine into the UK, he was not knowingly - knowingly concerned in that importation. Mr Fanta also suggests as part of his defence that the person responsible for the cocaine in the lorry is Mr Iutes, simply because well it wasn't him, he says, and therefore it must have been Iutes. As far as Mr Fanta is concerned, no one else could be responsible. Mr Fanta has, in the conduct of his defence, attacked Mr Iutes and has adduced evidence which he says will help you in deciding that he is not responsible, that Mr Iutes is. Of course, he doesn't have to prove that Mr Iutes is guilty in order for you to conclude that he is not guilty. Mr Iutes says that he was not concerned in getting the cocaine into the UK. He did some directed driving for Mr Fanta in an effort to secure employment. He had no knowledge of the drugs at all. The fingerprint found on the bag on the 9 of September in the cab of the lorry has no significance it is suggested given that he has driven the lorry and it's not the same as the bags in which the drugs were found. It takes you nowhere it's suggested. Further, the fingerprint on the receipt from the 15 of July 2015 is just an unhappy coincidence explained, Mr Iutes says, by the help he gave to a lorry driver he had not met before. These are the issues you are going to have to resolve, members of the jury. In considering the evidence as you do that, you may if you think it right draw conclusions from facts which you find are proved and that is sometimes - we have heard the word already in the case - called drawing an inference. You must, if you do that, always be alert to consider any other possible conclusion which could be derived from those facts. You can safely derive one particular conclusion only if you are sure that all other possible conclusions must be rejected. You must decide what conclusions you can fairly and reasonably draw from any piece of evidence that you do accept, taking these pieces of evidence together. As I have said, you mustn't engage in guesswork or speculation about matters which have not been proved by any evidence, so weigh up all the evidence and decide whether the prosecution have made you sure that a defendant is guilty. In judging that evidence you will apply your experience of life and of people and your common sense.” […] “The defence, as you know, for Mr Fanta have introduced into evidence the fact that Mr Iutes, the fact of his fingerprint being found on the receipt, exhibit 14. This is because they argue that that evidence may help you answer an important issue in this case, that is who put the drugs in the vehicle. It is argued by Mr Fanta on producing that receipt and the fact that Mr Iutes' fingerprint was on it, that it is more than a lucky coincidence for Mr Iutes that his fingerprint was found in very similar circumstances on two occasions in lorries that contained cocaine. You have to decide, members of the jury, whether that evidence does help you resolve that issue and whether that helps you reach a verdict in respect of either or both defendants.” 64. It is submitted that the judge failed to direct the jury as to i) the risk of unfair prejudice against Mr Iutes as a result of this evidence; ii) the use to which this evidence could properly be put; iii) the need for the jury to make their own evaluation of the evidence and not to place over-reliance on it; and iv) the need to avoid the risk of convicting him wholly or mainly on the basis of it ( i.e. that it was only supporting evidence). We have no doubt that the judge should have given a fuller direction, broadly in line with the guidance given in Chapter 12 of the Crown Court Compendium covering expressly all of these issues. It is critical that judges, when bad character evidence is admitted, clearly explain why it has been introduced, the limits of its potential usefulness, and by their directions ensure that all of the protections for the accused against the misuse of this evidence have been properly explained. We have borne in mind the observation by Leggatt LJ in R v Donald Adams [2019] EWCA Crim 1363 : “22. Looking at the matter more broadly, the general tendency of the criminal law over time has been towards a gradual relaxation of rules of evidence and an increasing willingness to trust to the good sense and rationality of juries to judge for themselves whether particular evidence is relevant to an issue they have to decide and if so in what way. But we have not yet reached the point where evidence of a defendant's bad character can be left as a free for all. [….]” 65. It remains critical, therefore, that the legal directions ensure that the jury will approach the evidence of bad character correctly, and the courts must be careful not simply to assume that juries will understand the relevance of this kind of evidence in the same way as lawyers and judges. Materially deficient directions, particularly with complex evidence, are likely to lead to the conviction being quashed, depending always on the circumstances of the particular trial. 66. However, notwithstanding the inadequacy of the present directions, the two passages set out above from the summing up made it abundantly clear why the evidence had been introduced, namely it was relevant to the question of whether (as the judge put the matter), “ it is more than a lucky coincidence for Mr Iutes that his fingerprint was found in very similar circumstances on two occasions in lorries that contained cocaine ”. The jury were directed that it was for them to decide whether this evidence helped resolve that issue. This described the purpose of the evidence, therefore, with clarity. The fingerprint from the 15 July 2015 trip was expressed as being relevant to a particular aspect of the decision-making process. Although we have reflected carefully on the judge’s failure to direct the jury i) against placing over-reliance on this evidence, ii) not to convict Mr Iutes wholly or mainly on the basis of it and iii) to avoid unfair prejudice, in the particular circumstances of this case and in the context of the present summing up we consider that these matters would have been wholly apparent to the jury. This evidence expressly related to the fingerprints found on two occasions, and Mr Iutes’s explanation for them. He had not been charged with or convicted of criminality arising out of events on 15 July 2015, and it is inconceivable that the jury would have convicted wholly or mainly on the basis of a fingerprint found on a cash receipt relating to an entirely different journey. The judge had directed the jury not to engage in speculation or guesswork, and that they needed to reach their verdict on the entirety of the evidence. Therefore, in these very particular circumstances, we do not consider there was an appreciable risk that this evidence would have led to unfair prejudice, or that the jury would have misunderstood its true purpose as being relevant to the issue identified, or, moreover, that they would have accorded it undue evidential weight. 67. Accordingly, we are unpersuaded by Mr Iutes’s submissions that, first, the bad character application should have been refused and, second, that Mr Iutes’s conviction is unsafe because of the judge’s directions. Conclusion 68. We consider that the bad character issues merited consideration by the full court. Accordingly, having granted the extensions of time and leave to appeal to both applicants, we dismiss their appeals against conviction.
{"ConvCourtName": ["Crown Court at Canterbury"], "ConvictPleaDate": ["25 May 2018"], "ConvictOffence": ["being knowingly concerned in the fraudulent evasion of a prohibition on the importation of goods"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Canterbury", "On the same day"], "Sentence": ["11 years’ imprisonment."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["Mr"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["he worked with his father and owned a company"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["prosecution’s tachograph expert", "fingerprint", "stopped by UK Border Force Officers."], "DefEvidTypeTrial": ["Instead, they implicated each other in this offending", "a paradigm “cut-throat” defence.", "He denied any wrongdoing"], "PreSentReport": ["data not available"], "AggFactSent": ["value of over £2 million"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["co-accused"], "AppealAgainst": ["against conviction", "extension of time of 312 day"], "AppealGround": ["bad character evidence relating to the applicant’s fingerprint on a receipt should not have been admitted"], "SentGuideWhich": ["170(2) Customs and Excise Management Act 1979."], "AppealOutcome": ["dismiss their appeals against conviction."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["the Grounds of Appeal advanced by Mr Kelly are not made out, and in our judgment Mr Fanta’s conviction is safe."]}
{"ConvCourtName": ["Crown Court At Canterbury"], "ConvictPleaDate": ["2018-05-25"], "ConvictOffence": ["being knowingly concerned in the fraudulent evasion of a prohibition on the importation of goods"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Canterbury"], "Sentence": ["Each"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Expert evidence", "Forensic", "Authority evidence"], "DefEvidTypeTrial": ["Offender states co-accused is responsible", "Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["Financial value /gain"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["1"], "AppealAgainst": ["against conviction", "Other (e.g., application for extension of time to appeal)"], "AppealGround": ["bad character evidence relating to the applicant’s fingerprint on a receipt should not have been admitted"], "SentGuideWhich": ["170(2) Customs and Excise Management Act 1979."], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["the Grounds of Appeal advanced by Mr Kelly are not made out, and in our judgment Mr Fanta’s conviction is safe."]}
357
Neutral Citation Number: [2017] EWCA 1071 (Crim) Case No: 201505661 B4 201505664 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM TRURO CROWN COURT HHJ COTTLE T20147149 Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/07/2017 Before : LADY JUSTICE HALLETT DBE Vice President of the Court of Appeal Criminal Division MR JUSTICE GREEN and HER HONOUR JUDGE TAYLOR (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - DANIEL JOHN PATRICK QUINN MICHELLE CASTERTON 1 st Appellant 2 nd Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr N D Lickley QC (instructed by Cox Burley Solicitors ) for the 1 st Appellant Mr S Laws QC (instructed by Howell Hylton Solicitors ) for the 2 nd Appellant Mr P Dunkels QC (instructed by CPS Appeals Unit ) for the Respondent Hearing dates: 27 June 2017 - - - - - - - - - - - - - - - - - - - - - Approved Judgment The Vice President : Background 1. On 16 November 2015 in the Truro Crown Court the applicants were convicted of murder (count 1). On the same date the trial judge HHJ Cottle sentenced them to imprisonment for life with a minimum term for Quinn of 24 years and a minimum term for Casterton of 22 years. No verdicts were taken on alternatives counts of causing or allowing the death of a vulnerable adult, contrary to section 5 of the Domestic Violence Crime and Victims Act 2004 (“DVCVA”). Their co-accused Aaron Mallen was convicted of murder and sentenced to imprisonment for life with a minimum term of 25 years. Aaron Mallen initially sought leave to appeal conviction but abandoned his application. Mallen now claims sole responsibility for the murder. Another co-accused Richard Rosevear was acquitted of murder by the jury on the direction of the judge and he was acquitted by the jury of causing or allowing the death of a vulnerable person. 2. Applications for leave to appeal against conviction were lodged by both applicants within the requisite 28 day period. Additional grounds were lodged on 17 March 2016 by Casterton and on 18 March 2016 by Quinn, following the Supreme Court judgment in R v Jogee and Ruddock [2016] UKSC 8 , [2016] 2 W.L.R. 681 (“ Jogee ”) handed down on 16 March 2016. These grounds were later amended and amplified at the Registrar’s invitation following the judgment of this court in R v Johnson and others [2016] EWCA Crim 1613 (“ Johnson and others ”). On 15 August 2016, an additional ground was lodged on behalf of Casterton which relies on fresh evidence from the co-accused, Mallen. On 8 December 2016 Quinn lodged an additional ground, also relying on the fresh evidence of Mallen. 3. The Registrar has referred their applications for leave to appeal against conviction and to rely on fresh evidence to the full court. Facts 4. Terry Oldham (the deceased) was a small frail man in his sixties. In 1987 he was convicted of two counts of indecent assault of a child; in 1998 he was convicted of detaining a child without authority and in 2008 he was made the subject of a Sexual Offences Prevention Order. 5. The applicants and co-accused lived with him at his address. Six people were crowded into a small two-bedroom terraced house. Mallen and his partner Casterton slept in the downstairs front room that had been the deceased’s bedroom. Quinn, a close friend of Mallen’s, Richard Rosevear and Stephen Goldsmith slept upstairs in the two bedrooms. The deceased slept in the living room at the back on the ground floor through which one had to go to reach the kitchen and the bathroom. Anti-social behaviour including loud music and drug taking (in which the deceased was not involved) took place at the address. 6. At 06.44 on 1 April 2014 Casterton called paramedics to the house. They found the deceased’s body lying on the floor of the living room. He was not wearing any trousers or underpants. Rigor mortis was well established. The room had dog faeces on the floor and there was an overpowering smell. The paramedic noted discoloration to the deceased’s genital area and requested police attendance. The applicants were both present when the emergency services arrived and provided witnesses statements on 1 April 2014. 7. A broken broom handle was found in the kitchen. The broom handle had what appeared to be faecal matter on it and heavy bloodstaining on the broken end. DNA analysis established that the blood came from the deceased. 8. A post mortem examination took place on 4 April 2014. The deceased had extensive bruising of various ages, defensive injuries, significant fresh injuries to his genitalia, fractures to his ribs and fingers. The fatal injuries had been caused by the forceful insertion of an item into the deceased’s anus, resulting in faecal material leaking into the abdominal cavity. This caused faecal peritonitis that in turn led to multiple organ failure. 9. On 6 April 2014, the applicants (and co-accused) were arrested and in interview all maintained that the deceased had been ‘fine’. It was suggested that the deceased had been walking his dog and sitting up the night before his death. Prosecution case 10. The deceased had been routinely assaulted, bullied and intimidated into handing over his property, in his own home. He had been considered ‘fair game’ because of his previous sexual offending. Mallen was the driving force. Mallen and Quinn, encouraged by Casterton, had assaulted the deceased. The prosecution could not identify who had inflicted the fatal wounds, but asserted the applicants had participated in the unlawful killing either as principals or secondary parties. Count 1 jointly indicted the applicants with murder; manslaughter was left as an alternative. Counts 2-5 indicted each defendant, in the further alternative, with causing or allowing the death of a vulnerable adult. Evidence of bullying 11. Evidence of bullying and abuse of the deceased came from various sources, including other residents of the address, people who visited the address, local shopkeepers and neighbours. The ill treatment led to his becoming uncommunicative and withdrawn and sporting obvious physical injuries. 12. Steven Goldsmith returned to live at the address about two weeks prior to the deceased’s death. He knew that Quinn, Casterton and Mallen hated and abused the deceased because of his convictions. He had seen Quinn, Casterton and Mallen with papers about the convictions. Quinn had encouraged him to look at papers and had read out parts of them. Mallen had been the leader in abusing the deceased, Quinn followed him and Casterton encouraged them. 13. He had seen Quinn call the deceased a ‘nonce’, spit in his face and strike him to the back of the head. If he tried to intervene, Mallen told him it was “their house now”. The deceased had been prevented from leaving the address and was fed beans on toast. Casterton had remarked that “he doesn’t even deserve that”. Casterton would goad Mallen and Quinn to take it to the “next level” saying “I’d give him a right kicking.” 14. Mallen habitually armed himself with weapons in the house, boasted that they had made the deceased vacate his bedroom and said that they had taken control of the deceased’s bank cards. The deceased was terrified of Quinn and Mallen and flinched when they went near him. They had discussed throwing the deceased down a mineshaft. 15. On 28 March 2014 Casterton sent text messages to her friend April Love stating; “hurry up and come here” and “pls April, kickin off with Terry”. That day Mallen assaulted the deceased so badly paramedics were called. The descriptions of the males present fitted Quinn and Mallen. Goldsmith confirmed the deceased was “black and blue” after the assault and there were knuckle imprints on his face, but the deceased claimed he had fallen over. 16. When April Love arrived, the applicants were present and the deceased had a gash to his head. In the presence of Quinn and Casterton, Mallen said he had hit the deceased because he was a paedophile and that they had seen paperwork to prove it. The deceased asked Mallen for permission to use the lavatory. Mallen told her that he had taken control of the deceased’s bank account. Timing and nature of death 17. April Love visited again on the evening of 30 March 2014 to collect money owed to her by Mallen. The applicants were not in but the deceased looked nervous and as if he had been crying. He had a black eye and would not let her in. Christopher Smith (April Love’s son) went with her when she returned later. He confirmed that the deceased had two black eyes, a cut to his head and seemed scared. Quinn stated that the deceased was in the back room, that they had made him eat “dog shit” and that they had found a police charge sheet in the deceased’s safe. 18. CCTV footage put the deceased in a supermarket on 30 March 2014 at 20.30 at a time when he was not suffering from faecal peritonitis. The latest the fatal injury could have been caused was between 05.00 and 08.00 on 31 March 2014. The likely bracket was between 23.00 on 30 March 2014 and 05.00 on the 31 March 2014. In the fatal assault, the deceased’s legs had been forcibly held apart (indicating more than one assailant was actively involved) so that the broken broom handle could be inserted into his anus. 19. In the early hours of 31 March. CCTV captured Mallen getting out of the passenger’s side of Casterton’s car adjacent to the cash machine at which a withdrawal was made. The deceased’s bank card was later found in Mallen’s jacket together with an ATM receipt for a cash withdrawal. Another bank card belonging to the deceased was found in Casterton’s car. 20. Christopher Maycock went to the address at 11.00 on 31 March to collect a loan instalment. The deceased had previously paid on time but had missed his last four payments. He was let into the property by Mallen. He saw the deceased lying on the floor in the dark in a bad state moaning in pain. Mallen said he had had a fall. He asked if help had been called and was assured the emergency services were on their way. 21. Callum Grigg visited on the afternoon of 31 March. The applicants, Mallen and others were present. They all consumed alcohol and cannabis. Mallen said the deceased’s room was his. Mallen told him that the deceased was a paedophile and encouraged him to hit the deceased. The deceased looked terrified and seriously ill; he had a bandage on his head. Mallen pointed to the deceased’s bandage and told him that he had elbowed the deceased in the head two days earlier causing the injury. Someone threw a wrench at the deceased which made contact. A wrench was later found by police in the house. 22. Elise Wilkes was another visitor during the afternoon of 31 March 2014, at about 16.30; she saw the deceased lying on a sofa clearly unwell. The room smelt. Mallen and the applicants were present. Casterton removed a bucket stating that it contained vomit. 23. The deceased must, therefore, have died a protracted and painful death over a period of about 24 to 36 hours, yet no medical assistance was sought prior to the telephone call on 1 April 2014. Lies, cover up and demeanour after the murder 24. The applicants told numerous lies in their witness statements on 1 April 2014 and later in their police interviews, in which they stated that the deceased had been well until he had been found that morning. 25. After the murder, the applicants made jokes at the deceased’s expense. Francesca Foster (an ex-partner of Mallen) was with a friend Kerry Hambly on 1 April 2014 when Casterton’s car pulled up. Mallen whispered to Kerry that the deceased had died. They went home with Quinn, Casterton and Mallen. The three were laughing at how they had fed the deceased dog food, made him take a cold bath, and given him methadone. Mallen re-enacted the position in which the body had been found whilst the others laughed. Kerry Hambly heard the applicants laugh about the injuries to the deceased’s genitals, urinating on him and making him eat dog faeces. She originally thought it had been an April Fool’s Day joke and later asked them to leave. 26. On 7 April 2014 Quinn and Mallen were covertly recorded in a police vehicle. There was a reference to “the nonce” being dead and laughter. Mallen mentioned the fact that, by then, the police had found only one part of the broken broom handle. Quinn immediately warned Mallen not to discuss it in the police car, obviously aware of its significance. This conversation led to the police locating the “other bit” of the broom handle. Defence case 27. The applicants did not give evidence but their case, as advanced, was that they had not been involved in any assault on the deceased. His injuries on 28 March 2014 were caused when he tripped and they did not know who was responsible for the fatal assault. On Mallen’s behalf, it was suggested to Goldsmith that he might have been responsible for the fatal assault on the deceased. A similar suggestion appeared in Casterton’s defence case statement. 28. Richard Rosevear (the acquitted defendant) admitted in evidence that he was aware of the deceased’s convictions. About two weeks before the deceased’s death, the others found paperwork about his past and began to call him a “nonce” and were nasty to him. Casterton had been ‘just as bad’ as Mallen and Quinn. They had been like ‘a pack of dogs’. He had not seen Quinn being aggressive to the deceased but had been told about an incident when he had spat at the deceased. Quinn had been loyal to Mallen and followed his lead. Whilst Rosevear was in prison Quinn and Mallen laughed at him and said he was in prison for what they had done. 29. The defence relied upon, inter alia, the previous convictions and pending prosecutions against various prosecution witnesses, including April Love and Goldsmith. Casterton relied upon her previous good character. Rulings 30. At the close of the prosecution case, the Judge ruled that there was a case to answer in respect of each applicant on the section 5 count of causing or allowing the death of a vulnerable adult (count 3 for Quinn, count 4 for Casterton) and rejected an application by Mallen that the proceedings should be stayed as an abuse of process. 31. Mallen’s counsel complained, boldly, that the provisions of section 6 of the DVCVA imported ‘a real unfairness’ to his trial. The presence of a section 5 offence on the indictment meant a submission of no case on the murder could not be made until the close of all the evidence. If Mallen failed to give evidence, the section provided for an “enhanced” adverse inference. In other words, by virtue of sub section 6 (2) a jury would be entitled to “draw such inferences as appear proper from the defendant’s failure to give evidence” on the charge of murder, even if there would otherwise be no case for him to answer on the murder. In the event, he did not give evidence. 32. The principal submission by counsel for the applicants Quinn and Casterton on the section 5 offence was that the very unusual nature of the killing meant it had not been foreseeable and thus had not “occurred in circumstances of the kind that the defendant foresaw, or ought to have foreseen” for the purposes of section 5. 33. The judge disagreed; he summarised the evidence of threats, bullying, verbal and physical abuse meted out to the deceased including the assault on 28 March 2014, which the applicants had helped cover up. The build-up of violence had been based on the applicants’ hatred of the deceased and his convictions. There was evidence of Quinn’s participation in a number of incidents. Casterton had been involved in the events leading up to the killing and had egged the others on to inflict greater violence. He was satisfied a jury could therefore conclude that the targeted attack of a paedophile, as occurred, was foreseeable and rejected the submissions. 34. At the close of all the evidence, the judge also rejected a submission of no case advanced on behalf of Casterton on the murder count, relying on the same ‘substantial’ body of evidence. Directions to the jury 35. The issues as left to the jury on the murder count were whether they were sure: Route 1 re murder (as a principal) The defendant in question had inflicted or taken some physical part in the infliction of the injury from which the deceased died with the requisite intention. If so the defendant was guilty of murder. If the defendant did not have the requisite intention did he/she foresee that some harm might be caused; if so the defendant was guilty of manslaughter. Route 2 re murder (as a secondary party) The defendant in question played some part in the incident that led to the fatal injury by intentionally encouraging, assisting or lending support to those physically involved; if so did the defendant foresee that the persons involved might have intended to kill or cause really serious harm; if so the defendant was guilty of murder. If the defendant realised some harm might result he/she would be guilty of manslaughter. Appeal 36. Three grounds were advanced by both Quinn and Casterton: (i) The judge’s directions on joint enterprise were fundamentally flawed in the light of the judgment in Jogee . (ii) The judge was wrong to reject the submission of no case on the section 5 offence of causing or allowing the death of a vulnerable adult. (iii) Fresh evidence from Mallen undermines the safety of the conviction. On behalf of Casterton two further grounds were advanced: (iv) The judge was wrong to reject the submission of no case on the murder count. (v) The judge made unfair and unduly prejudicial comments to the jury on the applicant’s failure to give evidence. The Jogee ground: exceptional leave 37. Counsel first addressed the question of exceptional leave. The case of Jogee was heard by the Supreme Court in October 2105 and judgement reserved. Although some trials in which the issue of joint enterprise was raised were adjourned until after the judgement was published, this trial went ahead in November 2015. The applicants sought leave to appeal in time on non Jogee grounds. The Registrar held back a number of applications for leave pending the judgment in Jogee , on the basis they may raise a similar issue as that raised in Jogee and their applications for leave were not therefore determined by the single judge. When the Jogee judgment became available the applicants applied to amend their grounds. The impact of the judgment in Jogee was considered by this court in Johnson and others . Counsel for the applicants, supported by Mr Dunkels QC for the prosecution, relied on paragraphs 24 to 28 and paragraph 84 of Johnson and others in support of the proposition that the applicants either do not require exceptional leave or, if they do, it should be granted. 38. They understood the court in Johnson and others to distinguish between applications for leave to appeal made in time on non Jogee grounds that have been determined before a Jogee ground is added and those that have not been determined before a Jogee ground is added; so that applicants in the former category require exceptional leave and those in the latter category do not. They gave as examples the applications of Terrelonge and Burton considered in Johnson and others at paragraphs 26 and 27 and paragraphs 73 to 84. 39. At paragraph 84, of the judgment, the court concluded that it would be ‘unjust’ to require the applicants Terrelonge and Burton to show more than the convictions were unsafe. We were invited to take a similar course to that adopted for Terrelonge and Burton and apply solely the test of safety of the conviction. 40. It was accepted that a distinction can be drawn between the applications of Quinn and Casterton on the one hand, and Terrelonge and Burton on the other, in that counsel for Quinn and Casterton did not raise the issue with the trial judge. At the time the judge summed the case up to the jury, all parties were aware of the possibility of a change in the law on joint enterprise in relation to secondary parties, but they did not consider it appropriate to ‘reserve the question of the correctness of the Court of Appeal decision in Jogee ’. Had they done so the judge would have given their submissions ‘short shrift’. Accordingly, they maintained it would be wrong to treat their lay clients differently from the way the court in Johnson and others treated the applications of Terrelonge and Burton. Jogee ground: the merits 41. Counsel then turned to the merits of the application. The written route to verdict provided the jury with an alternative second route to conviction which introduced foresight into the consideration for the mens rea for murder. This was a misdirection of law following Jogee . If, as Mallen has now confirmed, Mallen inflicted the fatal injuries, it is probable that the applicants were convicted as a secondary party and convicted via the second route containing the flawed direction. There was no evidence the applicants were directly involved in the murder and no forensic evidence to link them to it. Others in the house at the time of the murder were either not prosecuted (Goldsmith) or acquitted (Rosevear) Submission of no case to answer on the section 5 offence of causing or allowing the death of a vulnerable adult 42. Although this ground appeared in both the applications for leave to appeal, Mr Lickley QC for Quinn decided to abandon it during argument. Mr Laws QC for Casterton pursued it. Because the applicants appeared by video link and Mr Lickley was not in a position to obtain his lay client’s instructions on the point, we decided we should consider the ground in respect of both applicants. 43. The first hurdle that counsel had to surmount was that neither applicant was convicted of a section 5 offence and therefore a complaint based on its continued presence on the indictment was fraught with difficulty. Nevertheless, Mr Laws contended that its presence on the indictment meant that the trial on the count of murder proceeded in a significantly modified way and adversely to the applicant. 44. Section 35 (3) of the Criminal Justice and Public Order Act 1994 introduced the drawing of adverse inferences from a failure to give evidence at trial in these terms: “Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.” Section 38 (3) of the same Act, where relevant, provides: “A person shall not …. have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 35(3) .” 45. In R v Cowan [1995] 3 WLR 818] 1996 1 Cr App R 1 the court, over which Lord Taylor CJ presided, was concerned with the proper interpretation and implementation of section 35 . Noting the provisions of section 38 (3), the court gave as one of the reasons for upholding the provisions of section 35 that the jury must be satisfied that the prosecution had established a case to answer before drawing any inferences from silence. 46. However, section 6 of the DVCVA provides, where relevant: “(1)Subsections (2) to (4) apply where a person (“the defendant”) is charged in the same proceedings with an offence of murder or manslaughter and with an offence under section 5 in respect of the same death (“the section 5 offence”). (2)Where by virtue of section 35(3) of the Criminal Justice and Public Order Act 1994 (c. 33) a court or jury is permitted, in relation to the section 5 offence, to draw such inferences as appear proper from the defendant’s failure to give evidence or refusal to answer a question, the court or jury may also draw such inferences in determining whether he is guilty— (a)of murder or manslaughter, or (b)of any other offence of which he could lawfully be convicted on the charge of murder or manslaughter, even if there would otherwise be no case for him to answer in relation to that offence. (3)The charge of murder or manslaughter is not to be dismissed under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 (c. 37) (unless the section 5 offence is dismissed). (4)At the defendant’s trial the question whether there is a case for the defendant to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence (or, if at some earlier time he ceases to be charged with the section 5 offence, before that earlier time).” 47. Where a section 5 offence appears on the indictment, therefore, section 6(2) allows for inferences to be drawn in determining whether a defendant is guilty of murder, manslaughter, even if there would otherwise be no case to answer. By the judge finding a case to answer on the section 5 count of causing or allowing a death the applicants complain that they have been ‘deprived’ of the protection afforded by Cowan . If the judge had removed the count from the jury, he would have given the standard direction on the drawing of adverse inferences, as recommended by the Judicial College. This would have included the direction that the jury had to be sure the prosecution had established a case to answer (or a strong enough case to call for an answer) before they were entitled to draw an adverse inference. In fact, the judge directed the jury in these terms: “The first three defendants .. chose not to go into the witness box. This was a decision they were perfectly entitled to take. However, as you heard me say to each defendant in turn through his counsel, you the jury, may draw conclusions from that decision adverse to any one or all of them if you considered it fair and proper to do so. … A defendant has a right to remain silent and not to go into the witness box. The fact that he chooses to remain silent cannot, on its own, prove guilt. The burden of proving guilt of the defendant remains throughout upon the prosecution. You must not convict any of the three defendants wholly or mainly on the basis they did not give evidence. On the other hand, what are the consequences that do or may flow from the decision to remain silent? It means that there is no evidence before you capable of contradicting, undermining or explaining the evidence called by the prosecution. ……. You must only reach an adverse conclusion if you are sure the only sensible explanation for silence is because he or she has no answer to the prosecution case or none that would stand up to examination.” 48. In any event, the applicants suggest there was insufficient evidence that the applicants were or ought to have been aware that there was a significant risk of serious bodily harm. The evidence did not establish that the act that caused death (the insertion of a broom handle into the deceased’s anus) occurred “in circumstances of the kind” (for the purposes of s.5 (1) (d) (iii)) of the Act) that the applicant foresaw or ought to have foreseen. 49. Reliance was placed on R v Khan [2009] 4 ALL ER 544 in which the court observed in argument that “poisoning” would not be “circumstances of the kind” when the killing had involved very serious violence. The fatal assault or assaults left the deceased badly bruised with broken ribs, defensive injuries to his hands, substantial injuries to his groin and internal injuries, all of which were very different from the kind of likely assault about which the applicants may have been aware following the 28 March incident involving a single blow with the elbow. Fresh evidence from Mallen 50. Fresh evidence from the co-defendant Mallen has become available. We were invited to receive it under section 23 of the Criminal Appeal Act 1968 as credible evidence that affords a ground of appeal and to find that it renders the convictions unsafe. 51. In a statement provided to the applicants’ solicitors, Mallen stated he is solely responsible for the deceased’s death. He denied an intent to kill the deceased but accepted an intent to cause really serious bodily harm. He described his motivation for the assault as being the deceased’s convictions for sexual offending. 52. Although the applicants were in the house at the time of the murder, he claims the house was quiet. He alone had used a chair leg to strike the deceased in his genitals and stamped on him. He made the deceased stand, told him to remove his trousers and said “You are going to get what you gave those kids”. The deceased removed his trousers and Mallen snapped the broom handle in two over his leg. He pushed it into the deceased’s anus as far as he could, about 10 inches, and thrust it in and out 6 to 7 times. He then used the broken end and thrust it into the deceased’s anus as far as he could, about 15 inches. The deceased begged him to stop. Mallen says he told him: “if you wake my Mrs you’re going to get it worse” and “is that what those kids said, did they ask you to stop?”. He then punched the deceased to the face as he lay on the sofa. He returned to bed where, he insists, Casterton, his partner, was still asleep. 53. The next day Quinn and Casterton realised that the deceased was unwell and asked Mallen what was wrong with him to which he replied he did not know. That afternoon he encouraged others to assault the deceased. Nobody did but someone threw a spanner at him. He realised the deceased’s health was deteriorating and ‘took care’ of him. Nobody else knew what he had done. He did not summon medical help because he feared police involvement. When Casterton washed the deceased that evening, there was no bleeding from his anus. After he and Casterton returned from a visit to a public house, Casterton fed the deceased. On 1st April 2014 the deceased’s lifeless body was discovered. 54. He accepted that he assaulted the deceased, before the fatal attack, elbowing the deceased in the head and causing a cut on 28 March and that he had been assaulting the deceased “for a while...giving him the odd slap and calling him a ….paedophile” but insisted he “only really had a go at Terry when I was on my own with him”. 55. At the time of the trial, he did not believe the applicants would be convicted and did not, therefore, make any admissions earlier. However, he claimed he had told his trial solicitor he would plead guilty if the case against Quinn and Casterton was not pursued. 56. We turn to the additional grounds pursued by Casterton. The judge erred in refusing a submission of no case to answer on count 1 (murder). 57. On the facts, the ruling was wrong in law as it then stood. Post Jogee the ruling was wrong in law. The judge concluded the count could be left to the jury on the basis the applicant was “at the very least” a secondary party. He must have been focussing on the mens rea then required namely foresight and that, post Jogee , is not enough. 58. The prosecution accepted it had to prove the applicant was in the room when the fatal assault occurred and that Casterton had either participated in or encouraged what had taken place. There had been no direct evidence against her and the circumstantial evidence available had been insufficient to allow the case to go to the jury. 59. The murder occurred within a time frame of late Sunday night to Monday morning. The medical evidence left open the question of whether the injuries were inflicted at the same time. There was no evidence of direct involvement by the applicant for example no incriminating remarks made. The case against her was effectively put on the basis she had previously encouraged violence against the deceased, bore the deceased ill will, was present in the house at the time of the fatal assault, lied to cover up the fatal assault and must therefore have participated and or encouraged the principals. Yet other evidence suggested she was not a party to violence against the deceased, for example, her bringing a friend to the house and sending her text messages alerting her to the possibility of violence on 28 March. Improper and prejudicial judicial comment regarding the applicant’s failure to give evidence 60. Having given the direction on adverse inferences to be drawn from the failure to give evidence, to which we have referred the judge returned to the topic three times more during his summing up to direct the jury that although the defendants were not obliged to give evidence, they were entitled to ask why the defendants had not given evidence as potential witnesses to what happened on the fatal weekend. In the context of a sensitive and ‘finely balanced case’ his comments were said to be unduly prejudicial to the applicant. 61. The passages about which complaint is made appear at pages 20 and 21 of the summing up. At page 20 G the judge reminded the jury that: “Apart from the limited assistance provided by Rosevear, none of the other occupants of the house, with the exception of Steven Goldsmith, have come forward to help you with what happened during the course of rest of that weekend. Of course, as I have told you, they do not have to but the fact remains you are left to piece together from the evidence that is available what happened……. You may think it is unlikely to be the case that the defendants are unable to help you, as all of them were living in the house that weekend. They do not have to but you may think they could and chose not to and you have every right to ask why………… At page 21 F he continued: “All the defendants had been present in the house throughout the events covered by this case. Apart from Rosevear, none of them wished to share with you the experience of the months leading up to the weekend on which Terry died and, more importantly, the events of that weekend and the Monday. Of course, as I have said, they do not have to but, equally, you are entitled to ask ‘Why not?’.” Conclusions Jogee ground 62. First, we consider the question of leave. In Jogee , at paragraph 100, the Supreme Court stated: “where a conviction was arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to CA out of time. The court has power to grant such leave, and may do so if substantial injustice can be demonstrated…” 63. Adopting that approach, the court in Johnson and others distinguished between those appeals brought in time and those brought out of time. For appeals brought in time, the test for this court is solely one of safety (see paragraph 7). For appeals brought out of time exceptional leave is required (see paragraph 10) and an applicant must demonstrate that a substantial injustice would be done; a high threshold. Under the heading “Other cases” at paragraphs 24 to 28 the court in Johnson and others considered specifically appeals or applications for leave to appeal that were pending. The judgment refers to three types of case: (i) An application for leave made in time on non Jogee grounds and determined and then a Jogee ground added later, where exceptional leave is required (paragraph 25). (ii) An application for leave made in time on non Jogee grounds but not determined and a Jogee ground added later, as for example the appeals of Terrelonge and Burton (paragraphs 26 and 27). (iii) An in time appeal on Jogee grounds by one defendant and a co-defendant seeks leave to appeal out of time on similar grounds, where exceptional leave is required by the co-defendant but he is likely to meet the substantial injustice test (paragraph 28). 64. Thus, although the court identified three different categories of applicant, it made clear that applicants in categories (i) and (iii) both require exceptional leave. We understand the scope for confusion about the requirement for exceptional leave for those in category (ii). In paragraph 27 the court did not state in express terms that exceptional leave was required and later at paragraph 84 used the expression it would be ‘unjust’ to require the applicants to show more than the conviction was unsafe. However, paragraphs 26 and 27 should be read together and with paragraph 84. At paragraph 84, the court explained that it had reached its conclusion on the basis of safety of the conviction. It was the court’s view that “ although leave would have been required to argue the Jogee ground, it would in the circumstances of the case have been granted if the applicants had shown the conviction was unsafe”. This was because: “trial counsel had done what was open to them to reserve the correctness of the law at the trial. Thus, the court made clear that exceptional leave was required for a category (ii) applicant but the court would have granted leave in the exceptional circumstances of that particular case. Terrelonge and Burton had in effect lodged a Jogee ground of appeal in time. 65. The circumstances in which exceptional leave is required were considered more recently in R v Agera and others [2017] EWCA Crim 749 . The applicants in Agera had lodged non Jogee grounds of appeal in time that were refused by the single judge. Post the Jogee judgment but before the hearing, one of the applicants sought to add a ground based on the trial judge’s directions on joint enterprise. The court had no hesitation in concluding that exceptional leave was required. Although the court was not concerned with an application for leave to appeal that had not been determined, as we are, it roundly rejected the assertion based on the decision in Chapman [2013] EWCA Crim 1370 that amendment to an in time appeal should be allowed out of time on the basis of a change in law between the filing of a notice of appeal and the hearing. We respectfully endorse the general approach in Agera and for the reasons given by Sir Brian Leveson, President of the Queen’s Bench Division. 66. Accordingly, the principles are clear. Exceptional leave is required for out of time appeals or applications based on a change of law, even if the change of law ground is added to the original grounds of an in time appeal or application, and whether or not the application has been determined by a single judge. Although we sympathise with the argument advanced by Mr Laws that trial counsel, aware of the Jogee point, did not feel able to advance it before the trial judge before the law was changed, we see no basis in law or logic for distinguishing between applications for leave to appeal based on a change of law that have been determined by the single judge and those that have not. We are satisfied that the applicants require exceptional leave and must satisfy the substantial injustice test. 67. We now apply that test to the facts of this case. In the light of the judge’s directions, the jury’s findings indicate that they were sure, at the very least, of the following: (i) the applicants played some part in the incident that led to the fatal injury being inflicted by intentionally assisting encouraging or lending support to the person or persons who physically inflicted the fatal injury; and (ii) the applicants foresaw that the person or persons involved in inflicting that injury might intend to kill or cause really serious injury to the deceased. 68. As far as Quinn is concerned there was evidence of his having been a principal participating in the attack on the deceased with the broom. He had shown hostility towards the deceased because of his being a sex offender, spat in his face, called him a ‘nonce’ and hit him over the back of his head with his knuckles saying they had made him eat ‘dog shit’. Hostility of such a specific kind was reflected in the targeting of Mr Oldham’s genitalia and anus in the fatal assault. Quinn was undoubtedly in the house at the time of the fatal assault and the jury found that he was present at the fatal assault. It was a prolonged attack. The evidence suggested at least two people were involved in the fatal assault, with one forcing Mr Oldham’s legs apart so that the broom handle could be repeatedly inserted. The attack caused serious multiple injuries to Mr Oldham including extensive bruising around the whole pubic area and genitalia and four broken ribs, in addition to the internal injuries from the insertion of both parts of the broken broom handle in turn. Any one present and lending support to such an assault must have intended, at the very least, that those using the broom handle would cause the victim grievous bodily harm. 69. On the same day as Mr Oldham was found dead, Quinn laughed about how they had fed him dog food and dog faeces, had urinated on him, given him a cold bath and about the fact he was dead. The covert recording of Quinn and Mallen is also significant. Again, they were heard laughing at the fact that Mr Oldham was dead and express reference was made to the broom stick, in terms that suggest both knew of its significance in the death of Mr Oldham. Furthermore, Rosevear, gave evidence that when he was at Exeter prison in December 2014, Mallen and Quinn were laughing and said that he, Rosevear, was in prison for what they had done. 70. Turning to Casterton, similar considerations apply: the jury must have found that the applicant was present at the brutal and prolonged attack. She participated in and or encouraged the fatal assault foreseeing that the principal, if it was not her, would cause grievous bodily harm with intent. Casterton too had shown hostility towards Mr Oldham because of his being a sex offender, and that hostility was reflected in the targeting of his genitalia and anus. Casterton had previously encouraged the others to greater levels of violence. 71. We are satisfied that Jogee compliant directions in both cases would have made no difference to the jury’s verdicts. The crime in which Quinn and Casterton were involved was a crime of violence at the upper end of the spectrum described in paragraph 21 of Johnson and others. The substantial injustice test has not been met and we decline to give exceptional leave. For the avoidance of doubt, had we been prepared to give leave and consider solely the safety of the conviction, our conclusion would be the same. Submission of no case on the section 5 offence of causing or allowing the death of a vulnerable adult 72. We have no doubt the judge was obliged to leave the section 5 offence to the jury. First, it provided a proper alternative to the murder and manslaughter charges in the event that the jury was not satisfied there was sufficient evidence of participation in the fatal assault. Second, there was ample evidence to support the section 5 offence. This was a small house and Mr Oldham’s condition must have been obvious to all present. At the very least, the applicants ignored the clear risk to Mr Oldham of serious physical harm at the hands of Mallen, were aware of Mr Oldham’s condition after the fatal assault, and allowed him to die a slow and excruciatingly painful death. If Mallen was the perpetrator of the unlawful act, as he now admits, it occurred in circumstances that were properly left to the jury for them to determine if it was foreseeable. The judge would have been failing in his duty had he withdrawn the section 5 count on the basis of insufficiency of evidence. 73. Third, the judge stated in express terms that he was conscious of the possible impact upon the applicants of leaving the section 5 offence on the indictment and had he been persuaded that there was any unfairness to the defence, he would have removed the count from the jury. He was not so persuaded and we endorse his approach. Parliament enacted section 5 specifically to deal with this kind of situation where members of a household conspire to create a wall of silence to hamper a proper investigation into a death. Fourth, and finally on this topic, the judge’s directions on adverse inferences provided sufficient safeguards for the applicants and to address the principal concerns of the court in Cowan . Fresh evidence from Mallen. 74. In light of Mallen’s current account, and in particular his reference to what he told his trial lawyers, the court enquired of the parties whether any steps had been taken to ask him if he would be prepared to waive privilege. We understand that the appellants’ solicitors had not asked that question and were advised by their professional body it would be improper to do so because of a ‘potential conflict of interest’. We find that advice surprising. We do not see the conflict of interest in an applicant’s solicitor, an officer of the court, asking a witness if he would be prepared for enquiries to be made of their trial solicitors about his account, provided of course the solicitor warned the witness he was not obliged to waive privilege and could have independent legal advice if he chose. Without a waiver of privilege the court is unable to conduct as thorough an assessment of a witness’s current account as it would wish. In the future, if an applicant seeks to rely upon a witness’s fresh evidence in these circumstances and there is any doubt about the proper course to take, we recommend that the solicitors alert the Registrar and seek his advice. 75. We are left in the position, therefore, that the applicants seek to rely upon the evidence of a witness who has given previous accounts of the same incident and asserts he advised his trial solicitors he was guilty and prepared to plead guilty if the applicants were discharged. It would have been helpful for the court in assessing his credibility to know what he has said in the past about the incident, his role in it and the role of the applicants. We must proceed on the basis of proper inference. 76. We infer that the first time Mallen provided his new account was, at the earliest, in May 2016 when he gave it to Casterton’s solicitors for the purposes of her appeal and that until that time, his instructions to his solicitors and counsel were that he played no part in the murder. He has now abandoned his own attempt at an appeal. There is therefore a major hurdle in the path of the applicants, namely that their witness has nothing to lose by giving his present account and potentially stands to gain the acquittal of his very close friend and of his girlfriend. 77. There is therefore a major hurdle in the path of the applicants, namely that their witness has nothing to lose by giving his present account and potentially stands to gain the acquittal of his very close friend and of his girlfriend. 78. 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.'" 79. The applicants did not come close to surmounting that very high hurdle of persuading the court the witness’s evidence was credible. Putting to one side the fact we did not have the benefit of disclosure of his previous instructions, we did not find Mallen’s account on paper in any way convincing. Having heard from him de bene esse, we did not find him his account to us credible, save for where he described the brutality of the attack on Mr Oldham and his motivation. 80. Mallen has lied frequently and whenever it suited his purpose. He lied to the police and paramedics and others immediately after the discovery of Mr Oldham’s body. He lied in a witness statement taken by the police on 1 April 2014. He lied in his interviews under caution. Although he did not give evidence during the trial, his defence case was conducted on the basis that the prosecution witness, Goldsmith, had killed Mr Oldham and this allegation was put on his behalf to Goldsmith, a man he now accepts had nothing to do with the murder. We believe he also lied to us when he claimed he instructed his solicitor he was guilty and handed him handwritten notes to that effect, which his solicitor threw away without passing on to counsel. We have no doubt he lied about the timing of the visit with Casterton to the ATM machine as before the fatal assault, in an attempt to exculpate her, about Mr Oldham’s having stayed virtually silent during the excruciatingly painful attack and about his not discussing what he had done with the applicants. It was no coincidence, as he claimed, that they all told the same story. 81. We decline to receive the evidence. Submission of no case on the murder count. 82. The provisions of s.6 (4) of the DVCVA 2004 meant that the question of whether there was case for Casterton to answer on the count of murder could not be considered until the end of all the evidence. By that time there was ample evidence, as the judge observed, that “at the very least” the applicant was a secondary party; evidence that the applicant intentionally encouraged or assisted with the requisite intention and, with that guilty knowledge, lied to cover up the murder. This was strengthened by Casterton’s failure to give evidence. The judge rightly left the count of murder to the jury. Judge’s comments 83. The Judge gave the relevant directions as to the applicant’s failure to give evidence. The further references to the fact that the applicants had not offered any account of what had happened in the house in the days leading up to Mr Oldham’s death were reasonable comments to make. This was a case where the defendants were in the house at the time that Mr Oldham was assaulted and during the time he gradually succumbed to the painful effects of faecal peritonitis, yet each maintained in witness statements and interviews that he was in normal health throughout that time and until he was found dead, and none gave evidence to inform the jury as to what had been happening in the house and how Mr Oldham was. 84. In any event, in the context of a full and very fair summing up, the comments by the judge were not unduly prejudicial and did not make the conviction unsafe. 85. For all those reasons, we reject the applications for leave to appeal against conviction. 86. Finally, we should like to express our gratitude to all counsel for their very helpful and focussed submissions.
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526
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I N THE COURT OF APPEAL CRIMINAL DIVISION [2024] EWCA Crim 202 Case No: 2023/01481/B5 Royal Courts of Justice The Strand London WC2A 2LL Friday 16 th February 2024 B e f o r e: LORD JUSTICE COULSON MR JUSTICE HOLGATE THE RECORDER OF REDBRIDGE ( Her Honour Judge Rosa Dean ) ( Sitting as a Judge of the Court of Appeal Criminal Division ) ____________________ R E X - v - KHURAM JANJUA ____________________ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _____________________ Mr R Furlong appeared on behalf of the Applicant ____________________ J U D G M E N T ____________________ Friday 16 th February 2024 LORD JUSTICE COULSON: Introduction 1. The applicant is now aged 43. As long ago as October 2011 he pleaded guilty to two counts of conspiracy to supply Class A drugs. On 10 th December 2011 he was sentenced to three years and nine months' imprisonment. 2. Confiscation proceedings were then commenced against the applicant. On 18 th December 2012, a confiscation order was made. The benefit figure, which was agreed between the parties, was £120,000, with the agreed available amount fixed at £3,874. Only a small part of that sum was ever paid, and so on 11 th December 2014 the applicant was committed to prison in default of payment for 58 days. No further payments have been made in the intervening years. 3. Following a belated and unsuccessful attempt to appeal against the confiscation order, which we deal with in greater detail below, on 5 th April 2023 the Crown obtained a variation of the confiscation order, made by Mr Recorder Patrick Upward KC ("the judge") at Birmingham Crown Court. That increased the available amount from £3,874 to £66,517.76. The applicant seeks to renew his application for leave to appeal against that variation, following refusal by the single judge. 4. The applicant has today been represented by Mr Furlong of counsel. We should say at the outset that we have been considerably assisted by his submissions. They were advanced clearly, fairly and frankly, in order to ensure, quite rightly, that all the points that the applicant wanted to make were made before us. The Variation of the Confiscation Order 5. As we have said, the original order was made on 18 th December 2012. On 22 nd October 2018 the Crown applied, pursuant to section 22 of the Proceeds of Crime Act 2002 , for a variation of the confiscation order. That was because further investigation had shown that the property held in the applicant's sole name, 204 Lawford Road, Rugby, had significantly increased in value, so that the applicant's interest in it was worth substantially more than the figure agreed in 2012. 6. The application to vary prompted the applicant to seek an extension of time of 2,942 days in which to apply for leave to appeal against the original confiscation order made on 18 th December 2012. The argument was that the benefit figure in the original confiscation order had been erroneously calculated and agreed. It seems clear from the chronology that the applicant was advised that he needed to appeal against the original order before the variation application was heard – hence the belated applications for an extension of time and for leave to appeal. 7. Those applications were refused by the single judge. However, the applicant renewed his applications to the full court. On 18 th November 2021, the full court refused those applications: see [2021] EWCA Crim 1797 . This court noted, amongst other things, that there was a good deal of authority for the proposition that, when a confiscation order had been agreed between the parties, it was only in exceptional circumstances that the court could subsequently interfere with it. The full court agreed with the single judge that, first, that there was no possible basis for an extension of time; and secondly, that there had been no error in the original calculation and that what had happened in 2012 was instead "a classic case of compromise". There was no evidence of wrong advice, and the suggestion that the applicant had not been advised in 2012 of the possibility of further section 22 proceedings was found to be "not credible". There was no evidence that the actual section 22 proceedings, when they were launched in November 2018, had taken the applicant in any way by surprise. 8. The Crown's section 22 application having been stayed so as to permit the applicant to apply for leave to appeal, was back on track once the applicant's application had been refused. It proceeded in the Crown Court at Birmingham to a hearing on 5 th April 2023. 9. At that hearing, the judge heard evidence from Ms Williams (a financial investigator), who identified the increase in value of the property, and also a separate account containing £15,000. There was barely any cross-examination of her. There was then evidence from the applicant and his partner, Tania Gibbons. The judge then gave his judgment. For reasons which are not apparent, no part of the hearing was recorded on the DARTS system. Accordingly, there was no recording of the judgment. We are grateful to counsel for their agreed note, but it is, of course, a poor substitute for a proper transcript. 10. The agreed note of the judgment makes plain that: (a) the judge began by setting out the background and the evidence; (b) the judge was satisfied that the variation application should succeed – the applicant remained the sole owner of the deeds of 204 Lawford Road and was therefore the sole beneficial owner of the property; (c) in consequence of the evidence of Ms Williams, the property was valued at £71,465.64, and there was also the £15,000 in a NatWest account about which Ms Williams had also given evidence and which was not challenged; and (d) the judge recognised that Ms Gibbons had contributed to the upkeep of the house, and in consequence of that and other matters, he made a reduction of one-third of the value of the property when calculating the available amount; (e) in consequence, the available amount was increased from £3,874 to £66,517.76. That was an increase of £62,643.76. That increase was made up of two-thirds of the value of the property, namely £47,643.76 (out of the total value of £71,465.64), and the sum of £15,000 from the NatWest account; (f) the judge gave the applicant three months to pay the new amount and identified a period in default of six months' imprisonment. The Proposed Appeal 11. There were originally three points in the proposed appeal. The first was that the judge should have taken into account the applicant's argument that the original benefit figure was not compliant with the decision in R v Waya [2012] UKSC 51 . The other two grounds – one concerned with the amount of the two-thirds calculation and one concerned with the period in default – both raised suggestions of double counting. 12. The single judge refused leave to appeal. As to the first point, she noted that the benefit argument had not been argued before the judge and was in any event unarguable in the light of the decision of the full court in 2021. As to the double counting grounds, the single judge gave clear reasons as to why neither of those was arguable. 13. The renewed application did not suggest that any part of the proposed appeal was abandoned. This morning, however, Mr Furlong told us that, having seen the views of the single judge, the two points based on the double counting argument were no longer pursued. Whilst this court obviously encourages parties and counsel to abandon arguments which they consider will not succeed, as we pointed out to Mr Furlong, it is unsatisfactory when that happens on the morning of the hearing itself. In our view – and our experience this week has highlighted this – when parties seek to renew applications for leave to appeal, they need to do so having considered in careful detail the observations of the single judge. In that way, arguments which will plainly not succeed for the reasons pointed out by the single judge can then be abandoned before the court has to spend time and effort preparing to deal with them. We also note that Mr Furlong has had some difficulties as a result of being at least the third counsel to represent the applicant in these confiscation proceedings. He did not appear before the judge on 5 th April 2023. We have, we hope, made proper allowance for that fact. Ultimately, of course, the issue is whether or not there is an arguable case that the judge erred in his approach at that hearing. Ground 1: The Original Benefit Figure 14. We therefore turn to ground 1 of the proposed appeal, which is now the only live ground of the renewed application. This is the argument that, on 5 th April, the judge failed to take into account the applicant's argument about the original benefit figure and how it was, so it is said, not compliant with the decision in Waya . We have considered that argument carefully, but there are three reasons why we have concluded that that point is not open to the applicant, and is not arguable in this court. 15. First, we are satisfied that the point was not taken before the judge on 5 th April 2023. We accept, of course, the difficulties created by the malfunction of the recording system. But it is plain to us from a consideration of all the documents that do exist in relation to that hearing that there was no argument that the judge was obliged to re-open, or should have re-opened, the issue of the original benefit figure. Clearly it cannot be a ground of appeal to suggest that the judge failed to address a particular argument when that argument had not been raised with him. 16. Secondly, we consider that that argument had not been made to the judge on 5 th April for the good reason that it could not have succeeded. That is because of what happened in 2021 in this court. This court established, finally and conclusively, that the original benefit figure fixed in 2012 was an agreed figure and was, in the circumstances of this case, inviolable. That is what this court said in express terms. The applicant had tried to open up the benefit figure eight years out of time, and both that attempt and the required extension of time had been refused. That was the end of it. It could not be the subject of any further consideration. We do not accept that a chance observation by the single judge in respect of that proposed appeal (made when refusing permission) somehow meant that the right to raise further points about the original benefit figure survived the conclusive judgment of this court in 2021. 17. Thirdly, standing back and looking at the merits, we consider that the argument is not open to the applicant because of the reasons expressly set out in paragraph 17 of the judgment of this court in 2021. The benefit figure in 2012 had been agreed. There was a series of different potential benefits, different accounts, different sums of money, all of which were potentially in play. There was, very sensibly, a compromise. It was what this court called a "classic case of compromise". Accordingly, there was no unfairness in 2012, because all of the various matters were taken into account in arriving at the agreed figure. This court reiterated in 2021 that there had been no unfairness. There had been no wrong advice. The order in 2012 was just – in the widest sense of the word – regardless of the nitty gritty as to how it might have been made up. That was the end of the matter in 2012 and it is the end of the matter now. 18. Accordingly, for those reasons we refuse the renewed application on Ground 1. 19. As we have said, neither of the other two grounds based on double counting is now pursued and so we do not deal with them. 20. We observed during the debate with Mr Furlong that, in one sense at least, the applicant has been the author of his own misfortune, because the very modest available amount that was identified in 2012 was a sum that plainly should have been paid. It was not. All the difficulties since have arisen out of that non-compliance. So, although for some of the reasons set out in the papers we have a certain amount of sympathy with the applicant, his position overall is not meritorious. 21. For all those reasons, and repeating again our thanks for Mr Furlong's submissions and the way in which they were presented, this renewed application for leave to appeal against the confiscation order must be refused. ________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: [email protected] ______________________________
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{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["2011-10-01"], "ConvictOffence": ["two counts of conspiracy to supply Class A drugs"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["October 2011"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Birmingham Crown Court."], "Sentence": ["three years and nine months' imprisonment."], "SentServe": ["data not available"], "WhatAncillary": ["confiscation order"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Evidence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["different potential benefits, different accounts, different sums of money"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Conditions of fine/order"], "AppealGround": ["order had been erroneously calculated"], "SentGuideWhich": ["section 22 of the Proceeds of Crime Act 2002"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
365
No: 200503353/B2 Neutral Citation Number: [2006] EWCA Crim 27 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 12th January 2006 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MRS JUSTICE RAFFERTY DBE SIR PAUL KENNEDY - - - - - - - R E G I N A -v- JOHN STOVELL - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR M STEVENS appeared on behalf of the APPLICANT MR N CORSELLIS appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: On 20th May 2005 at Blackfriars Crown Court, following a trial before His Honour Judge Martineau, this applicant was convicted of using threatening or abusive words or behaviour with intent to cause fear or provocation of violence contrary to section 31(1)(a) of the Crime and Disorder Act 1998 , and on a second count of having an article with a blade or point contrary to section 131(1) of the Criminal Justice Act 1988 . He was sentenced to 21 months' imprisonment in relation to the first offence and to 9 months concurrently in relation to count 2. His application for leave to appeal against conviction and sentence was referred to the Full Court by the Single Judge. We grant leave to appeal against conviction. We refuse leave to appeal against sentence. 2. The facts were these. On 8th September 2004, the complainant, Mr Suheir, was trying to park his motorcar when the appellant overtook and shouted words of abuse. Thereafter, the appellant got out of his car and approached the complainant, shouting racist abuse in an aggressive fashion and holding what prosecution witnesses identified as a knife. The incident was over in seconds, but it was witnessed, apart from the complainant, by two entirely independent witnesses. 3. The prosecution case in relation to the first count was that this conduct demonstrated the section 31 offence and, in that the appellant had a bladed article in his possession in a public place, without reason or lawful authority, the second count likewise was made out. 4. The defendant's case was that he had not been in possession of any knife or bladed article: what he was actually holding was a mobile telephone. In his evidence before the jury, which, as will emerge, differed from the basis on which prosecution witnesses had been cross-examined on his behalf and from the defence statement which had been previously filed, the defendant admitted that he had called the complainant a "nigger" though he denied the phrase "fucking nigger", and he admitted he may have called him a "cunt". 5. In evidence, he said that such language as he did use was in response to provocation from the complainant, who had called him "a white piece of shit". That was not an allegation that had been put to the prosecution witnesses in cross-examination, nor did it appear in the defence statement. 6. In just a little more detail, the complainant described driving his car in Elmstone Road, Fulham, with a red Volkswagen motorcar driven by the appellant close behind. The appellant seemed to be in a hurry, so Mr Suheir pulled over to allow him to pass. Thereupon, the appellant stopped his car in front of the complainant's and said that the complainant was driving the world's smallest car; he could not drive and he was "a wanker". The complainant got out of his car and said: "What did you say?" Whereupon, the appellant got out of his car and walked towards the complainant with a knife at his side, the blade of which was some six inches long and was being pointed upwards diagonally from waist level. The appellant, according to Mr Suheir, was gritting his teeth, frowning and repeatedly shouting "fucking nigger" in an aggressive manner, so Mr Suheir ran away. As he did so, he heard the appellant shout "cunt". Later he saw the appellant further up the road with a cloth with which he appeared to be wiping his hands. He denied, in cross-examination, having mistaken a mobile telephone for what he described as a knife. 7. A Miss Lacy was the first of the independent witnesses. She had been knocking on doors raising funds for charity. She heard shouting. She described the appellant shouting from his vehicle about the size of the complainant's car and incapacity to drive it. Miss Lacy said the appellant called the complainant "a fucking nigger" on two or three occasions and also "a fucking cunt". The complainant asked "what?" She described the appellant, with his arm outstretched, carrying a knife, at shoulder level, in an extremely threatening and aggressive manner and she described the complainant as retreating, holding his palms up. She thought the complainant was going to be stabbed. The police came. They arrested the appellant. He, according to Miss Lacy, at that stage took hold of his crotch and shook it in an insulting gesture towards her. 8. Mr Addinsell was the other independent witness. He described hearing the appellant shouting at the complainant and, in particular, shouting that he was a "fucking nigger". 9. Mr Addinsell also noticed a flash of light which he described as a mechanical flash. He was fearful. He did not want to get involved but he used his mobile telephone to take pictures which, as it turned, out were not very good. 10. The appellant also, according to Mr Addinsell, described the complainant as "a little cunt". 11. While awaiting the arrival of the police, Mr Addinsell saw the appellant had parked and gone into a nearby building, from which he emerged with a piece of cloth dangling in his hand. He removed something from his car, according to Mr Addinsell, which he concealed in the cloth. Mr Addinsell said it was a solid object. He did not see a knife. He said that he was trying not to look directly at the appellant. 12. Two police constables gave evidence of the appellant's arrest. They did not accept, when they were cross-examined, that the appellant claimed not to have a knife but that he did have a mobile telephone. They specifically denied that he showed a mobile telephone to them. 13. At the conclusion of the cross-examination of all the prosecution witnesses to whom we have referred, defence counsel sought to have them recalled so that the mobile telephone could be shown to them for their comments. The judge ruled that they were not to be recalled for that purpose. That gives rise to one of the grounds of appeal to which in due course we shall come. 14. The further matter which gives rise to appeal is the judge's ruling after the appellant's counsel and solicitor had been given permission to withdraw from representing the defendant because of their professional embarrassment. 15. It is apparent from the ruling which the judge made in relation to this, that the embarrassment arose because of the divergence to which we have already drawn attention between the cross-examination of the prosecution witnesses as to the language used by the appellant and of the defence statement on the one hand and the different evidence which, it was apparent those representing him appreciated, the appellant was about to give. 16. The judge, in refusing to grant an adjournment for further legal representation for the defendant, commented that the trial had reached an advanced stage. The most important part of it had been the cross-examination of the prosecution witnesses, which had all been completed. If fresh legal representation were granted, the problem arising from the anticipated evidence of the defendant would still persist. The only way in which that could be avoided would be if the judge were to grant a retrial. That he was not prepared to do. He said that he would be able to give assistance to the defendant and he would highlight discrepancies in the prosecution witness evidence, as indeed he did when he came to sum the matter up to the jury. The judge concluded, in the light of all these matters, that the defendant could continue to receive a fair trial albeit that he was not, by that stage, represented and he could give evidence, as indeed he did. This was not a case in which it was contemplated that there would be any witnesses called for the defence. 17. The defendant thereupon gave evidence, the substance of which we have already identified. When he was cross-examined, he accepted that he had changed his account in relation to whether or not he had called the complainant a "nigger". He in effect agreed that he had, certainly in relation to the defence statement and for the purposes of the cross-examination of the prosecution witnesses given instructions presenting a false case. He admitted that he used the term nigger. He claimed this was in response to provocative language on the part of the complainant. 18. After the defendant had given evidence, counsel then prosecuting, who is not counsel who appears for the Crown before us, made what, it is common ground, was an extremely long speech, of the order of three-quarters of an hour. The judge in the course of the trial commented on its excessive length. In due course, it was brought to the attention of the trial judge that, as the defendant by that stage was not represented, it may well be that prosecuting counsel ought not to have been making a speech at all. However, that took place and gives rise to a further ground of appeal. 19. On the appellant's behalf Mr Stevens, who did not appear at the trial, first challenges the judge's refusal to adjourn the matter to enable fresh legal representation. He points out that the defendant's legal aid certificate had not been discharged. In that respect he relies on R v Harris [1985] Crim LR 244, where there is an extremely short report of a decision of this Court, in December 1984. In that case the appellant had been charged with wounding with intent and, during the course of his trial, his counsel and solicitor ceased to act for him and he sought an adjournment. It is not possible from the brief report of that case before this Court to know precisely at what stage the departure of the defence legal representatives took place on to what extent the issues were at all complicated. The brief report indicates that, the judge having taken no action to revoke the appellant's legal aid certificate, the appellant still had a right to legal representation. In view of the material irregularity to which that gave rise, "the conviction must therefore be quashed." 20. In that context, Mr Stevens accepts that it was a matter for the exercise of discretion by the trial judge in the present case whether or not to permit an adjournment for fresh legal representation. It is apparent that part of that exercise of discretion would involve the judge considering whether, in all the circumstances of the case and the stage which had been reached, a change of representation should be permitted. 21. Mr Stevens accepts that, at the time when the judge's discretion was exercised, the case was a straightforward one. But, he submits, it ceased to be straightforward thereafter, first, because the second count in relation to carrying the weapon, was added, and, secondly because, after they had been considering their verdict for some time, the jury sent a note in relation to which Mr Stevens submits that, had there been legal representation, it may be that useful comments could have been made by counsel on behalf of the defence. 22. So far as the addition of the new count is concerned, Mr Stevens rightly concedes that, even had the defendant, at that stage, been represented by counsel, counsel could not have begun to object to the addition of such a count. But, says Mr Stevens, it may be that the defendant would not have understood what was going on by the addition of that second count. 23. So far as the jury note is concerned, that related to the late production of the mobile telephone, and was in these terms: "element of doubt has been introduced by the late production of the mobile. We were not happy that the 'phone was not produced when the witnesses were present. Can we be advised about this. We were all shocked when the phone which was so critical was produced in an unconventional way out of the defendant's pockets." The telephone had indeed been produced by the defendant when he was giving evidence. 24. Mr Stevens' submits that the direction given by the learned judge in relation to the note was, as he put it, "not as fair as it could have been". In this respect, he submits that the judge should have directed the jury expressly that, if they had any doubt in relation to the possession of a knife rather than a mobile telephone, they ought to acquit. Mr Stevens accepts that the judge had fully and accurately directed the jury, earlier in his summing-up, with regard to the burden and standard of proof. 25. Mr Stevens further complains of the judge's failure to permit the prosecution witnesses to be recalled so that the mobile telephone could be shown to them. It is to be noted that both the complainant and Mrs Lacy had, as we have indicated, expressly denied, when cross-examined, that they could have mistaken a mobile telephone in the hand of the complainant for a knife. It is to be noted also that the jury had the opportunity of seeing the mobile telephone themselves. In the light of the judge's directions with regard to this, they were well able to assess whether or not the witnesses might have made a mistake. 26. We are unpersuaded that it was necessary for the judge to give any further direction with regard to burden and standard of proof when the jury posed their question. 27. Mr Stevens' final ground is in relation to the prosecution closing speech, which all are agreed was of excessive length in the light of the simplicity of this case. Mr Stevens relies on a decision of this Court in R v Mondon 52 Cr App R 695 where the appellant's conviction was quashed when prosecuting counsel had made a final speech in relation to an unrepresented defendant. Lord Justice Edmund Davies, in giving the judgment of the Court, drew attention to the impact which that speech might have had on the jury's determination of the issues in relation to fact which arose. It is to be noted that, in that case, the appellant had been unrepresented throughout her trial. It is also to be noted that that case was decided at a time when the proviso applied under the Criminal Appeal Act 1968 , whereas the determinative test which this Court now has to apply is as to the safety of the conviction. 28. It is also to be noted that, even under the 1968 Act , it was by no means the inevitable consequence of prosecuting counsel having improperly and inappropriately made a final speech in relation to an unrepresented defendant, that the conviction would be quashed (see R v Pink 55 Cr App R 16). 29. Mr Corsellis, on behalf of the Crown, submits that the judge's refusal to adjourn for further legal representation is not susceptible to challenge. The trial was a simple one. The evidence was in no sense complex. The question of new representation arose after all the prosecution witnesses had been cross-examined. The issues in relation to whether a mobile telephone could have been wrongly identified as a knife was examined so far as the prosecution evidence was concerned. The appellant had himself a considerable experience of the adversarial court system in the light of his substantial record. The appellant was able to and did give. No defence witnesses were anticipated. The addition of the second count was not only irresistible in law but was a simple amendment to the indictment giving a simple description of a simple offence. Furthermore, the judge summed up the defence case and outlined the defence position with regard to all the relevant matters in a full and fair way. 30. Mr Corsellis submits, in relation to the failure to permit recall of the witnesses that, bearing in mind the cross-examination that there had been of the complainant and Miss Lacy as to the possibility of mistake, no useful purpose would have been served, whether the defendant had been represented by counsel or not. The jury were able to see the mobile telephone which was exhibited. The question which they asked related, he submits, to why the telephone had been produced so late and not whether it could be shown to witnesses. 31. So far as the second speech by prosecution counsel is concerned, Mr Corsellis conceded that, in this case, the prosecution should not have made a second speech, still less, one of the length of this speech. But he points out that there have been a considerable number of procedural and evidential changes since Mondon was decided, in particular in relation to inferences from silence, the lodging of a defence statement, the admissibility of evidence of bad character and the possibility of a different version being given in evidence from that which appears in the defence statement. Mr Corsellis points out that it was at a comparatively late stage in these proceedings that the appellant's legal representatives withdrew. The judge summed up the defence position entirely fully and fairly and the evidence supporting the conviction was, in any event, strong. Mr Corsellis refers to the incident taking place in daylight and being observed by two independent witnesses and the concessions made by the appellant in the course of his evidence that he had called the complainant a "nigger" were of high materiality. The complainant's evidence was corroborated, so far as the use of language was concerned, by both the independent witnesses and Miss Lacy corroborated the complainant's account that what was in the appellant's hand was a knife rather than a mobile telephone. Mr Corsellis also relied on Mr Addinsell's evidence of the removal of a suspicious item from the car before the appellant was arrested, the differences between the defence case statement and the defendant's evidence and the defendant's failure to comment in interview in relation to the various facts. Mr Corsellis submits that, on any view, the appellant's conviction was a safe one. 32. In our judgment, so far as the refusal to adjourn is concerned, in the circumstances of this case, as we have endeavoured to summarise them, the judge was fully entitled to reach the conclusion he did that, if this trial continued without the appellant being legally represented, there would be no unfairness to him, particularly having regard to the exploration which had already taken place of the issues in the case, in the course of cross-examination of the prosecution witnesses. As it seems to us, it is not shown that the judge wrongly exercised his discretion in that regard. 33. It is true that he did not discharge the legal aid certificate at that stage and he ought to have done. But there is nothing in the brief report of the decision of this Court in Harris which persuades us that a failure by the judge to discharge a legal aid certificate, that being necessarily a failure of a technical kind, must result in the quashing of a conviction if, thereafter, the trial continues with the defendant being unrepresented. The fundamental question will always be whether or not a fair trial continues to be possible and whether or not a fair trial in fact took place. 34. In our judgment, in this case, it did. The addition of the second count and the question raised by the jury did not, for the reasons given by Mr Corsellis, give rise to such complexity that the trial became unfair. 35. There is, as it seems to us, no substance in the complaint about the judge's failure to permit the prosecution witnesses to be recalled so they could be shown the mobile telephone. 36. So far as the prosecution's second speech is concerned, in the light of the procedural and evidential changes which have taken place since the decision of this Court in Mondon , we are by no means satisfied that in all cases, particularly when a defendant has been represented substantially throughout the trial and there are issues arising during the defence upon which the jury would be assisted by comment from prosecuting counsel, it is necessarily inappropriate for prosecuting counsel to make a second speech. But it is unnecessary in the present case to reach a conclusion with regard to that matter, because, for the reasons which we have already given, even the old authorities would not, as it seems to us, lead to the quashing of this conviction. 37. In our judgment there is no reason whatever for regarding this appellant's conviction as being unsafe by reason of any of the grounds ably advanced on his behalf by Mr Stevens. Accordingly, the appeal against conviction is dismissed. 38. So far as sentence is concerned, Mr Stevens points out that the incident, albeit frightening, was brief. The knife, albeit held, was not waved. There was no further threatening behaviour. Mr Stevens accepts that there is, so far as the appellant is concerned, the aggravating feature, not just of an extensive criminal record but the fact that he has been, on four previous occasions, convicted of using threatening words or behaviour, albeit that the last of those convictions was some years ago. Mr Stevens draws attention to the personal circumstances of the appellant, in that he was the full-time carer for parents who are both in poor health and he is a responsible single parent for the upbringing of a 14 year old girl. Mr Stevens drew attention to a new relationship which the appellant has formed since May 2005, which is having a positive effect upon him. All of those considerations we take into account. 39. These were, in our judgment, deeply unpleasant offences and, although the sentence of 21 months was a severe one, it is not one which, arguably, can be criticised as being manifestly excessive. Accordingly, as we have already indicated, the application for leave to appeal against sentence is refused.
{"ConvCourtName": ["Blackfriars Crown Court"], "ConvictPleaDate": ["20th May 2005"], "ConvictOffence": ["having an article with a blade or point", "using threatening or abusive words or behaviour with intent"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Blackfriars Crown Court"], "Sentence": ["21 months' imprisonment in relation to the first offence and to 9 months concurrently in relation to count 2."], "SentServe": ["concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["His"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["the complainant, Mr Suheir"], "VicNum": ["the complainant, Mr Suheir"], "VicSex": ["Mr"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["witnesses", "police constables gave evidence"], "DefEvidTypeTrial": ["defendant's case was that he had not been in possession of any knife or bladed article: what he was actually holding was a mobile telephone"], "PreSentReport": ["data not available"], "AggFactSent": ["public place", "knife"], "MitFactSent": ["full-time carer for parents who are both in poor health and he is a responsible single parent"], "VicImpactStatement": ["data not available"], "Appellant": ["data not available"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal against conviction."], "AppealGround": ["he submits that the judge should have directed the jury expressly", "ground is in relation to the prosecution closing speech", "the judge's failure to permit the prosecution witnesses to be recalled"], "SentGuideWhich": ["Criminal Appeal Act 1968", "section 31(1)(a) of the Crime and Disorder Act 1998", "section 131(1) of the Criminal Justice Act 1988"], "AppealOutcome": ["appeal against conviction is dismissed.", "leave to appeal against sentence is refused."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["no reason whatever for regarding this appellant's conviction as being unsafe by reason of any of the grounds ably advanced", "21 months was a severe one, it is not one which, arguably, can be criticised as being manifestly excessive"]}
{"ConvCourtName": ["Blackfriars Crown Court"], "ConvictPleaDate": ["2005-05-20"], "ConvictOffence": ["having an article with a blade or point", "using threatening or abusive words or behaviour with intent"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Blackfriars Crown Court"], "Sentence": ["21 months' imprisonment in relation to the first offence and to 9 months concurrently in relation to count 2."], "SentServe": ["Concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Don't know"], "VictimType": ["Individual person"], "VicNum": ["1 of 1"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Police evidence", "witnesses"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["public place", "Weapon/armed"], "MitFactSent": ["full-time carer for parents who are both in poor health and he is a responsible single parent"], "VicImpactStatement": ["Don't Know"], "Appellant": ["data not available"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal against conviction."], "AppealGround": ["the judge's failure to permit the prosecution witnesses to be recalled", "ground is in relation to the prosecution closing speech", "he submits that the judge should have directed the jury expressly"], "SentGuideWhich": ["Criminal Appeal Act 1968", "section 131(1) of the Criminal Justice Act 1988", "section 31(1)(a) of the Crime and Disorder Act 1998"], "AppealOutcome": ["Dismissed-Failed-Refused", "Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["21 months was a severe one, it is not one which, arguably, can be criticised as being manifestly excessive", "no reason whatever for regarding this appellant's conviction as being unsafe by reason of any of the grounds ably advanced"]}
433
Neutral Citation Number: [2018] EWCA Crim 1384 Case No. 2017/01346/C1 IN THE COURT MARTIAL APPEAL COURT CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 12 th June 2018 B e f o r e : THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVIISON ( Lady Justice Hallett DBE ) MR JUSTICE GOSS and MRS JUSTICE MOULDER DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - NEIL CHRISTOPHER GUNN - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd trading as Epiq 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Non-Counsel Application Mr D Edwards appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) LADY JUSTICE HALLETT: 1. This is a renewal of Mr Gunn’s application for leave to appeal against his conviction for battery by a Court Martial Board. The first ground advanced relates to the constitution of the Board. Mr Gunn serves in the RAF yet he was tried by an Army Board. We are troubled by the interplay between the Queen's Regulations for the RAF as to the constitution of the Board and the provisions of the Armed Forces Act. The Regulations suggest that the Board that tried Mr Gunn should have been differently constituted, including at least one representative from his service. We appreciate that the Regulations do not have the force of primary legislation but it is not clear to us from what we have heard this morning what force they do have. We should say that we have seen the transcript of the hearing at which the trial date was fixed and note that the defence agreed to an Army Board. However, Mr Gunn's then lawyer does not seem to have addressed the issue of the effect of the Queen's Regulations during the hearing and we could not establish satisfactorily this morning what he advised Mr Gunn as to the ir effect. 2. As far as the other grounds are concerned, we are not as yet persuaded that they arguable but it may be that a fresh representative could put them in better order and so we shall not adjudicate upon them. One matter that caused us concern was Mr Gunn's reference this morning to being told by the Judge Advocate and by his lawyer that no reference could be made to the Bastion incident (about which he wishes to call fresh evidence) and which he suggests could have established a motive for the complainant to lie. Accordingly, the other grounds may be advanced if, and only if, Mr Gunn’s fresh representative considers they are properly arguable. 3. We will give leave on the ground relating to the constitution of the Board. We will give Mr Gunn a representation order for a fresh advocate.
{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["battery"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["data not available"], "Sentence": ["data not available"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["Mr"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["serves in the RAF"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["data not available"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Non-Counsel Application"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against his conviction"], "AppealGround": ["the Board that tried Mr Gunn should have been differently constituted"], "SentGuideWhich": ["Armed Forces Act."], "AppealOutcome": ["give leave on the ground relating to the constitution", "representation order for a fresh advocate."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["Don't know"], "ConvictOffence": ["battery"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Don't know"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["data not available"], "Sentence": ["data not available"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Don't know"], "VictimType": ["Don't Know"], "VicNum": ["Don't know"], "VicSex": ["Don't Know"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["data not available"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Other"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against his conviction"], "AppealGround": ["the Board that tried Mr Gunn should have been differently constituted"], "SentGuideWhich": ["Armed Forces Act."], "AppealOutcome": ["representation order for a fresh advocate.", "give leave on the ground relating to the constitution"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
8
No: 200702974 A4 Neutral Citation Number: [2007] EWCA Crim 2748 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 11th October 2007 B e f o r e : MR JUSTICE UNDERHILL HER HONOUR JUDGE GODDARD QC - - - - - - - - - - - - - - - R E G I N A v KATE GEMMA DOOLEY - - - - - - - - - - - - - - - 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 Usher appeared on behalf of the Applicant - - - - - - - - - - - - - - - J U D G M E N T 1. JUDGE GODDARD: On 19th March 2007, at the Crown Court at Manchester Minshull Street, this applicant pleaded guilty to possession of a Class A drug (heroin) with intent to supply and possession of a Class C drug (cannabis resin) with intent to supply. On 4th May 2007 she was sentenced on the possession of the heroin with intent to five years' imprisonment, with 18 months' imprisonment concurrent on the possession of the Class C drug with intent. She now renews her application for leave to appeal against sentence. 2. The matters that give rise to these charges occurred in December 2006. On 14th of that month, December, police, in conjunction with the Deputy Governor of Her Majesty's Prison Forest Bank in Salford, carried out an operation in which searches were to be conducted on all legal visits taking place. Each legal representative was informed that the prison had a drug policy. An amnesty bin was in operation in the foyer of the prison premises before entering through secure doors. There were also notices within the prison saying that drugs were not permitted. 3. When the applicant arrived she said that she was on a legal visit on behalf of the solicitors who employed her, she being a trainee solicitor, and that she was booked to see a prisoner called Scott Jeffries. All the documentation she provided was checked. Her identification was authorised and she had a letter of authority. Although she was in fact a trainee solicitor with that particular firm, the client was not actually a client of theirs and she had no authority to act in that capacity for that firm. He was a client of another firm and visited because they had become friendly. 4. When she went through the secure doors a dog detected the presence of drugs. She was taken to a secure area and she was asked if she had anything she should not have. She took off her right boot and took out a package which contained, as was later discovered, 8.13 grams of cannabis. Initially she said she did not know what was in it, but then said it contained "weed". When asked if she had anything else, the applicant placed the hand down the front of her jeans and knickers and removed two packages from the area of her vagina. One contained 10.6 grams of heroin at 39 per cent purity, the other 5.08 grams of cannabis. The street value of the heroin was just over £1,000, but in prison its value was substantially more. 5. She was arrested. A mandatory drug test at the police station tested positive for cocaine. She made no comment when interviewed. 6. We should add that although this was a plea of guilty, there was to be a trial of the issue, that being that she believed that the heroin was in fact cannabis, but that was a trial of issue that was not persisted in when the matter came to court. 7. The applicant is a young woman of 24 with no previous convictions. She explained to the author of the pre-sentence report that she had visited prison as a legal executive. She had received telephone calls from Jeffries, who had been given her telephone number by other clients. She had had daily calls and felt friendly towards him. She was given the drugs by a third party. She took them not for personal gain, but as a favour in a developing friendship. She was described as balanced, talented, educated, socially aware and that her lifetime career had been thrown away. The pre-sentence report made the point that even a short sentence would have an impact. 8. There were letters of support from family and friends as well as from the applicant. We have read them all and appreciate the shock and tragedy her actions have brought to her family and friends and the hard work and study that has been thrown away. 9. That tragedy was clearly recognised by His Honour Judge Smith in his sentencing remarks. He gave her credit for her plea, but reduced the amount of credit because she had, in his view, put forward a false story about her knowledge of the heroin to engineer a reduced sentence. We recognise, however, she did not persist in a Newton hearing. He set out the serious consequences of Class A drugs in prison, bringing them in was perpetuating the untold misery caused by addiction, and it was more serious if brought in by one who had legitimate access. 10. Counsel in his grounds and before us recognised in his submission that there would be a substantial prison sentence, but he submitted that, firstly, it was wrong to withhold full credit for the plea entered at the PCMH and, secondly, five years was excessive. 11. He relied on the Attorney General's Reference No 75 of 2002 [2003] 1 Cr App R (S) 109 . There the offender had pleaded guilty to three offences of attempting to supply Class A drugs to a friend in prison and had been sentenced to five months. In the course of his judgment, Rose LJ agreed with the submission of counsel for the Attorney General that the appropriate sentence would have been at least three years. 12. Counsel acknowledged that Miss Dooley's offence is aggravated by the amount of the heroin, but only to a limited extent by her position as it was clear that everyone was going to be searched. So far as the plea is concerned, he submitted that more credit should have been given, and although in his submission it is not easy to say how much, he submits that on a trial the sentence would have been between six and seven and a half years. No reduction was given for 10 per cent in view of the more onerous licence conditions. He also submits that the learned judge did not take sufficient account of the fact that she had thrown her life away. 13. There is no doubt a human tragedy behind this case as we have listened to it and read the papers, but the hard facts are that Miss Dooley purported to be at the prison for legal purposes. Albeit she could still be searched, she had got the visit on a false basis. She had internally secreted the heroin. The amount was not just for personal consumption but could be circulated. As the learned trial judge said, drugs in prison are a curse and introducing them is very serious. We acknowledge the plea that was tendered, albeit credit is tempered by the proposed but abandoned Newton hearing. 14. Having considered all these matters, we come to the conclusion that this sentence cannot be said to be manifestly excessive or wrong in principle and leave is accordingly refused.
{"ConvCourtName": ["Crown Court at Manchester Minshull Street"], "ConvictPleaDate": ["19th March 2007"], "ConvictOffence": ["possession of a Class C drug (cannabis resin) with intent to supply", "possession of a Class A drug (heroin) with intent to supply"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["entered at the PCMH"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Manchester Minshull Street"], "Sentence": ["five years' imprisonment, with 18 months' imprisonment concurrent"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["she"], "OffAgeOffence": ["24"], "OffJobOffence": ["employed"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["operation in which searches"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["aggravated by the amount of the heroin"], "MitFactSent": ["letters of support from family"], "VicImpactStatement": ["data not available"], "Appellant": ["Applicant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["leave to appeal against sentence"], "AppealGround": ["it was wrong to withhold full credit for the plea entered at the PCMH and, secondly, five years was excessive.", "the learned judge did not take sufficient account of the fact that she had thrown her life away."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["leave is accordingly refused."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["considered all these matters, we come to the conclusion that this sentence cannot be said to be manifestly excessive or wrong in principle"]}
{"ConvCourtName": ["Crown Court At Manchester Minshull Street"], "ConvictPleaDate": ["2007-03-19"], "ConvictOffence": ["possession of a Class A drug (heroin) with intent to supply", "possession of a Class C drug (cannabis resin) with intent to supply"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["entered at the PCMH"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Manchester Minshull Street"], "Sentence": ["five years' imprisonment, with 18 months' imprisonment concurrent"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Female"], "OffAgeOffence": ["24"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Police evidence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["aggravated by the amount of the heroin"], "MitFactSent": ["letters of support from family"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Other"], "AppealGround": ["the learned judge did not take sufficient account of the fact that she had thrown her life away.", "it was wrong to withhold full credit for the plea entered at the PCMH and, secondly, five years was excessive."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["considered all these matters, we come to the conclusion that this sentence cannot be said to be manifestly excessive or wrong in principle"]}
404
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 202104068/B3-202104069/B3 [2022] EWCA CRIM 1487 Royal Courts of Justice Strand London WC2A 2LL Tuesday 25 October 2022 Before: LADY JUSTICE SIMLER DBE MR JUSTICE JAY MRS JUSTICE COCKERILL DBE REX V IBRAHIM KHAN __________ 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 MIAN KC & MS M KARAISKOS appeared on behalf of the Applicant. _________ J U D G M E N T LADY JUSTICE SIMLER: Introduction 1. Between 15 and 29 November 2021 in the Crown Court at Luton before Goss J and a jury, the applicant, Ibrahim Khan, was tried and ultimately convicted of murder (count 2) and having an article with a blade or point in a public place (count 1). He was sentenced on 30 November 2021, by the same judge, for the offence of murder, to be detained during Her Majesty's Pleasure with a minimum term of 16 years less 169 days spent on remand and in relation to count 1, no separate penalty imposed. Appropriate ancillary orders were made. 2. The applicant was represented at trial by Liberty Law Solicitors and counsel, Mr Naeem Mian KC leading Ms Maria Karaiskos. The applicant now renews his applications for leave to appeal against conviction and sentence and for representation orders in respect of his defence team, who appear pro bono on these applications. We are grateful to both counsel for the written and oral submissions that we have received. The facts 3. On 8 June 2021 Humza Hussain (then 16 years old) like the applicant, was fatally stabbed to death outside Challney High School for Boys in Stoneygate Street in Luton. Three stab wounds were inflicted to his chest, using a knife which the applicant had taken with him to the scene. One of the stab wounds involved the knife passing almost through Hussain's body to a depth of just over 20 centimetres. A second wound travelled 13 centimetres into his chest and back. The stabbing took place in a busy street in broad daylight when children were leaving the school. Members of the public and emergency services tried to save Hussain's life, but he was pronounced dead approximately two hours later at 6 pm that evening. 4. There was no issue that it was the applicant who inflicted all of the fatal injuries to Hussain. The only issue was whether the applicant was acting in self-defence and used the knife in self-defence or accidentally. 5. The stabbing was the culmination of a history of animosity between the applicant and Hussain. Both were at primary school together and then attended Challney High School for Boys. There had been an occasion when both their fathers had attempted to resolve the conflict between the two boys by way of a mediation type meeting undertaken by a football coach. During that meeting both boys agreed to stay out of one another's way. 6. Notwithstanding that meeting, on 7 October 2020, the applicant was set upon by Humza Hussain and three friends in the school playground. The applicant was punched, kicked and stamped on. He suffered a bloody nose and other soft tissue injuries, all of which were captured on CCTV. As a result of the attack on the applicant, three of Humza Hussain's group (his friend Sameer Idrees, his cousin Abdul Hussain, and another boy) were permanently excluded from the school. 7. A month later on 7 November 2020, another incident took place. This time Humza Hussain and his cousin Abdul were lured to Chaul End Park and attacked by the applicant and four other boys. They were punched and kicked. At one point the applicant recorded the attack on a mobile phone, demanding that Humza Hussain apologise for the school playground attack. During that incident Humza Hussain was stabbed in his arm with a small knife and the applicant could be heard urging the boy with the knife, who was in fact the applicant's cousin, to "shank him" and then saying: "Humza just remember you got shanked". This was recorded on a mobile phone. Humza Hussain was detained in hospital for four days following that attack. 8. The occasion of the fatal stabbing was preceded by a period during which the applicant was on his bicycle loitering outside the school. Adeeb Idrees (aged 14) and the younger brother of Sameer Idrees, was leaving school at about 3 pm. Before he left the grounds, the applicant confronted Adeeb and said he wanted to talk to him in a nearby alleyway. Adeeb was scared. He saw the outline of a knife in the applicant's tracksuit. Teachers intervened at that point and Adeeb was taken back into the classroom for his own safety. Adeeb immediately telephoned his older brother Sameer. That telephone call led Sameer Idrees and Humza Hussain to travel to the school. Sameer Idrees came armed with a hammer which appeared to have been broken and had the head and handle in two parts. Though at trial and now, it is asserted on the applicant's behalf that Sameer Idrees was also armed with a knife, no knife was in fact recovered and evidence of any such knife was far from clear. Humza Hussain was armed with a metal file or rasp. 9. At trial the Crown relied on evidence of the animosity between the applicant and Humza Hussain, including the CCTV footage of the earlier incidents and Humza Hussain’s witness statement, which was read, regarding the incident in the park. 10. There was CCTV footage from the school grounds on the day of the stabbing which showed the applicant outside the school gates on his bicycle and also the start of the confrontation between the applicant and the two boys. 11. The Crown’s case was that the applicant attacked both boys with the knife and the footage demonstrated his thrusting motions in the direction of Humza Hussain and showed him to be the aggressor holding a dangerous knife. There were also eyewitness accounts of the stabbing, and the knife (described as a "savage" weapon) was an exhibit. There was expert medical evidence about the number of stab wounds, their depth and force and there were also photographs of the deceased's injuries taken at the scene. These were relied on as part of the prosecution case that the injuries were not inflicted in lawful self-defence. The knife was found in the shed in the garden belonging to the applicant's home. It was forensically tested. Blood was found on the tip and was forensically linked to Humza Hussain. 12. The Crown relied on lies told by the applicant to police and ambulance staff including that he had been a victim of an attack and had been set upon by two men wearing masks and hoods each carrying knives (in one case a Zombie knife, 22 inches long and the other a Rambo knife, 18 inches long). 13. The Crown also relied on lies told in the applicant's prepared statement to police and on the fact that his mobile telephone disappeared notwithstanding that it was depicted in CCTV footage on the day of the stabbing. The Crown also relied on bad character evidence in relation to the previous attack in Chaul End Park and on the applicant's failure to give evidence at his trial. 14. The applicant's defence case was that he was attacked outside the school by Sameer Idrees and Humza Hussain in a joint attack by chance. It was his case that Sameer threw the head of the hammer at him and that Humza Hussain grabbed him from behind. He drew the knife that he had been carrying in self-defence to ward off his attackers and he stabbed Humza Hussain in self-defence and/or by accident. 15. The applicant had given a prepared statement to police in interview, in which he explained that police and youth services had previously warned him that his life was in danger. He said that was why he had resorted to carrying a knife in self-defence, believing that he was in imminent danger. Otherwise the applicant did not answer questions in interview and nor did he give evidence in his own defence at trial. He relied on his previous good character, on the evidence that Sameer Idrees and Humza Hussain arrived at the scene armed with weapons, namely the hammer and the rasp, and that another prosecution eyewitness said Sameer Idrees had a knife. He relied on the evidence from the Crown showing that Sameer Idrees was first to produce and use a weapon, namely the hammer, and that it was a joint attack by two against one. He also relied on the suggestion in the Crown's opening that Sameer Idrees was defending himself from the applicant and their suggestion of evidence of the seriousness of the defensive wounds caused to his hands, arguing that it was not consistent with the prosecution failing to call Sameer Idrees as a witness for the prosecution. He relied on the fact that the applicant himself was injured in the attack and on the trail of blood that was left by him from the scene to his home, where he arrived and collapsed in the garden, requiring hospital treatment. He sustained a cut to his wrist which severed the tendons in his arm and required surgery as well as a puncture wound to his left arm and a wound to his temple. Those injuries were also photographed at the hospital where he was treated. The applications 16. On the application for permission to appeal conviction, both in writing and orally, Mr Mian KC submitted that the judge failed to sum up the defence case in a balanced and comprehensive way. Particular complaint is made about the way in which the judge addressed the prepared statement to police. Moreover, whilst recognising that it was not obligatory for the judge to summarise the defence closing speech, he submitted that the judge nonetheless made insufficient reference to much of the evidence relied upon by the defence in the course of his summing-up. 17. Carefully, as those submissions were made, we do not accept them. It is undoubtedly the case that it is part of a judge's duty to identify the defence in his or her summing up, but the way in which that is done inevitably depends on the circumstances of the case. Here the applicant made a prepared statement rather than answering questions in interview, and he did not give evidence in his defence at trial. 18. In R v Singh-Mann [2014] EWCA Crim 717, this Court (Fulford LJ) said at paragraph 90: "... it is clear that when a defendant has said little or nothing in interview and has elected not to give or call evidence, ordinarily the limit of the judge's duty is simply to remind the jury of 'such assistance, if any, as (defence) counsel had been able to extract from the Crown's witnesses in cross-examination' and any 'significant points made in defence counsel's speech'. In this context, it is to be stressed that in order to present a defence to the charges the defendant is not compelled to give or to call evidence; instead, he is entitled to rely on evidence presented by the prosecution or by his co-accused when advancing arguments for the jury's consideration as to whether the prosecution has established his guilt. The rehearsal of this material by the judge does not necessarily have to be extensive or detailed – indeed, frequently it will be sufficient merely to identify the central submissions and the evidence that underpins them – but the judge must generally ensure that the jury receives a coherent rehearsal of the main arguments that are being advanced by the accused." Those observations were approved and applied by this Court in R v Lunkulu [2015] EWCA Crim 1350 , and we too endorse them. 19. In our judgment, the summing up was sufficiently balanced and fair and the defence case was adequately summarised by the experienced judge in this case. 20. Early on in his summing up the judge set out the defence case based on the prepared statement at interview. He referred expressly to the warning that the applicant said that he had received that his life was at risk, and that he had been advised to wear a stab vest. He referred to the fact that the applicant said he had a knife on him "out of fear for my safety". He said the defence say he had good reason to be armed to defend himself from what he feared was an imminent attack. A little later the judge set out the defence case relating to murder. He said: "The defendant raises two potential defences to the charge of murder. It is not for him to prove either of them. It is for the prosecution to make you sure that neither applies in his case. His case is that the use of the knife was not unlawful because he did not deliberately stab Humza Hussain and he was acting in reasonable self-defence, as I shall define it. Let me explain these elements in more detail." 21. The judge then went on to do precisely that. He provided the jury with what was a detailed and clearly analysed summary of the defence case against the legal framework. This was more than merely the identification of the central submissions in the case. The judge provided a coherent rehearsal of the main arguments advanced on the applicant's behalf. 22. In the second part of the summing up the judge referred to the prepared statement and made clear that the jury would have the prepared statement in retirement. He told the jury that the applicant's reason for being in the area of the school was that he was going on a bike ride with his friend. He went on to summarise for the jury that the applicant had: "... stated he had been attacked without warning by Humza Hussain and [Sameer] who were armed with a machete and a large knife [respectively]. He did not pull out his knife until he got hit on the forearm by Humza with a machete. He did that in order to defend himself. He was struck several times with the knives and simply stood his ground with his arm outstretched when Humza came at him and swung at him with his machete. He took the opportunity to escape on his bike and went home. He had his knife on him when he went out – when he went back into his home but he did not know where it went. He only struck each of them, that’s Humza and [Sameer], once. He was just trying to save himself. As I say, you can refer to his statement when you retire." 23. The judge also referenced the background between these boys. He referenced the attempt at mediation and the long standing animosity, together with the incidents that preceded the fatal attack. The judge expressly referred the jury to the agreed facts. It was not unfair not to recite those agreed facts given that they were contained in a document that the jury had in retirement. 24. Moreover, we can see nothing wrong or unfair in the fact that the judge did not seek to analyse each and every one of the points made on behalf of the defence in a single passage. It seems to us, overall, that the judge sufficiently set out the evidence heard by the jury in a way that made that evidence relevant to their considerations. He identified the four prosecution witnesses Muhammad Haroon, John Fanning Milstead, Adil Ahmed and Ronald Burk and summarised what was said by those witnesses. He referred to the phone evidence and timeline and he addressed the absence of the applicant's own mobile phone in a way that was far from unfair. 25. Mr Mian expressly accepted that the judge was not obliged to rehearse the closing submissions made by the defence, notwithstanding the initial written complaint to this effect. That was a correct concession to make. The judge referred to the submissions and also to the difference between submissions and evidence. We can see no basis for criticising his approach in that regard either. Ultimately, we are entirely satisfied that the jury were properly directed in relation to the applicant's defence case. There is nothing in the written grounds of appeal or the ground advanced in relation to the prepared statement that even arguably undermines the safety of the applicant's conviction in this case. Accordingly, the application for permission to appeal against conviction is refused. 26. We turn therefore to the sentence application. The applicant was born on 27 April 2005. He was of good character. By agreement between all parties no pre-sentence report was requested in relation to him. We are satisfied that such a report was unnecessary then and is not now necessary. 27. The court had victim personal statements from Asim Hussain (Humza Hussain's father) dated 23 November and 26 November 2021 and we too have read those moving statements. The judge applied the provisions of section 322 and schedule 21 of the Sentencing Act 2020 . By reason of the applicant's age he took the appropriate starting point of 12 years for determining the minimum term. 28. There can be no doubt that an appropriate upward adjustment had then to be made to address the full seriousness and circumstances of this offence. The judge said the offence was aggravated by being a planned and premeditated confrontation, whereby the applicant in effect lured Sameer Idrees and Humza Hussain to the school for a fight. The applicant took with him to the scene a large and fearsome knife which he took out to use in a busy public place, close to a school, in the presence of many people, including children, who were no doubt distressed and traumatised by the horror of the event. There was an attempt to conceal the weapon and the applicant disposed of or arranged for the disposal of his mobile phone, thereby making his communications over social media irrecoverable. 29. In terms of mitigating factors, the judge identified the use of the large knife to inflict two very deep stab wounds to the front of the chest and said the nature and position of the wounds meant he could be sure that the applicant used the knife with an intention to kill in that moment. This was not therefore a mitigating feature. 30. The applicant had no previous convictions or cautions but the judge was in no doubt that he planned the previous attack on Humza Hussain and his cousin in Chaul End Park on 7 November, in which the applicant had incited one of the other boys to use a small knife to wound Humza Hussain. Although the applicant did not give evidence the judge reached the conclusion that he was clearly streetwise, not unintelligent and not unduly immature or led by others. The judge, as we have said, took account of the offence of having a bladed article in a public place in fixing the minimum term. 31. On behalf of the applicant, in relation to the application for leave to appeal against sentence, Mr Mian accepted that there were undoubtedly aggravating factors that warranted an upward adjustment from the starting point of 12 years in this case. However, he contended that the end point of 16 years was simply too high and failed to have regard to the applicant's youth (he was 16 at the date of the offence) and the principles of sentencing children and young people. Moreover, he submitted that the judge failed to have regard to the wider context of this case, including the earlier incidents involving these boys and to the significant fact that at the time the applicant inflicted the fatal stab wounds, he was being attacked by two other armed boys. 32. We have considered those grounds with care but have concluded that they too are unarguable. In our judgment the judge fully and fairly accounted for the applicant's age, both in the lower starting point taken by the judge and in the relatively limited upward adjustment ultimately made from that starting point to an end point of 16 years. This was a case in which the aggravating factors significantly outweighed any mitigating factors. The applicant took a very serious knife to be used to commit an offence in the street. There was planning. The offence was committed outside a school, in the presence of children and there was concealment of both the knife and a mobile telephone. Those factors undoubtedly justified a move significantly beyond the 16 year end point reached by the judge in this case. This sentence was proportionate to the seriousness of the offending and not arguably manifestly excessive. Despite the cogent submissions made on the applicant's behalf, attractively presented by Mr Mian we therefore refuse this application. 33. Accordingly all applications are refused . MR MIAN: My Lady thank you. The "cogent written submissions"; I cannot take credit for; they were drafted by Ms Karaiskos who sits behind me. What flows from that is an application - as you know we both appear pro bono. I am happy do so, as we both are - on behalf of Ms Karaiskos alone for a representation order, not for me, just to reflect the work that has been done by her. (The Bench Conferred.) LADY JUSTICE SIMLER: Mr Mian it is tempting in situations like this to accede to such an application, particularly where it is as attractively presented as it has been, but I am afraid we cannot grant it. MR MIAN: One can but ask. LADY JUSTICE SIMLER: We are grateful though for the assistance we were provided with. Thank you both. 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]
{"ConvCourtName": ["Crown Court at Luton"], "ConvictPleaDate": ["15 and 29 November 2021"], "ConvictOffence": ["murder", "having an article with a blade or point"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["on remand"], "RemandCustodyTime": ["169 days"], "SentCourtName": ["Crown Court at Luton"], "Sentence": ["to be detained during Her Majesty's Pleasure with a minimum term of 16 years less 169 days spent on remand"], "SentServe": ["no separate penalty imposed"], "WhatAncillary": ["Appropriate ancillary orders were made."], "OffSex": ["He"], "OffAgeOffence": ["16"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["applicant's home"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["at primary school together"], "VictimType": ["Humza Hussain"], "VicNum": ["Humza Hussain"], "VicSex": ["his"], "VicAgeOffence": ["16"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["eyewitness accounts", "forensically tested", "CCTV", "expert medical evidence"], "DefEvidTypeTrial": ["witness statement,", "acting in self-defence"], "PreSentReport": ["data not available"], "AggFactSent": ["concealment", "busy street in broad daylight", "knife", "planned and premeditated"], "MitFactSent": ["applicant's age"], "VicImpactStatement": ["victim personal statements"], "Appellant": ["applicant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against conviction and sentence"], "AppealGround": ["failed to have regard to the applicant's youth", "the judge failed to have regard to the wider context"], "SentGuideWhich": ["section 322 and schedule 21 of the Sentencing Act 2020"], "AppealOutcome": ["refuse this application."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["sentence was proportionate to the seriousness of the offending and not arguably manifestly excessive"]}
{"ConvCourtName": ["Crown Court At Luton"], "ConvictPleaDate": [["2021-11-15", "2021-11-29"]], "ConvictOffence": ["having an article with a blade or point", "murder"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["169 days"], "SentCourtName": ["Crown Court At Luton"], "Sentence": ["to be detained during Her Majesty's Pleasure with a minimum term of 16 years less 169 days spent on remand"], "SentServe": ["Concurrent"], "WhatAncillary": ["Appropriate ancillary orders were made."], "OffSex": ["All Male"], "OffAgeOffence": ["16"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Male"], "VicAgeOffence": ["16"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["forensically tested", "expert medical evidence", "CCTV", "eyewitness accounts"], "DefEvidTypeTrial": ["witness statement,", "Self-defence or Justified Action"], "PreSentReport": ["Don't know"], "AggFactSent": ["concealment", "planned and premeditated", "busy street in broad daylight", "knife"], "MitFactSent": ["applicant's age"], "VicImpactStatement": ["Yes"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against conviction and sentence"], "AppealGround": ["the judge failed to have regard to the wider context", "failed to have regard to the applicant's youth"], "SentGuideWhich": ["section 322 and schedule 21 of the Sentencing Act 2020"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["sentence was proportionate to the seriousness of the offending and not arguably manifestly excessive"]}
36
Neutral Citation Number: [2012] EWCA Crim 434 Case No: 2011/04321/B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MOLD CROWN COURT HIS HONOUR JUDGE ROGERS T2010/7167 Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/03/2012 Before : LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE SILBER and MR JUSTICE MADDISON - - - - - - - - - - - - - - - - - - - - - Between : A Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - N Quinn QC and D Malone (instructed by Woodfines LLP ) for the Appellant A Levitt QC and Iain Wicks (instructed by CPS ) for the Crown Hearing date: 15 th February 2012 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: 1. This is an appeal against conviction by A following her plea of guilty at Mold Crown Court on 15 th October 2010, to doing acts tending and intended to pervert the course of public justice, contrary to common law. For the sake of preserving her anonymity she has been identified by the media during these proceedings as “Sarah”. The particulars of offence alleged that between 7 th February 2010 and 30 th July 2010, with the necessary intent, she did a series of acts which had a tendency to pervert the course of public justice by making and pursuing false retractions of her complaints of rape against her husband. She was sentenced to 8 months imprisonment. The sentence was quashed in this court on 23 rd November 2010, and replaced with a non-custodial sentence. The judgment of the court is set out at [2010] EWCA Crim. 2913 . By the time the sentence was quashed, the appellant had already been in custody for 3 weeks, and her own personal position, as well as that of her four children, had become so uncertain and problematic that the court, as then constituted, believed that it would be of positive assistance to all of them to make a community based order, taking immediate effect. If the situation had been different, the likely order, given that the appellant had already been in custody for 3 weeks, would have been an order for conditional discharge. The appeal against sentence 2. Dealing with it very briefly at this stage, the prosecution of the appellant began with her complaint that her husband had raped her. In due course she withdrew that complaint. She then proceeded to assert and reassert that her complaint had been false. Proceedings against him were stopped. She was prosecuted for perverting the course of justice by making a false complaint of rape. In due course, having seen counsel and solicitor, she reasserted the truth of the original complaint. In due course, on 15 th October 2010, she faced two indictments at Mold Crown Court, both of which alleged that she had perverted the course of public justice. Although the statement of offence in each indictment was identical, the particulars of offence were mutually contradictory. The first indictment alleged that she had made and pursued false allegations of rape against her husband, the second that she had made and pursued a false retraction of these allegations. She pleaded not guilty to the first indictment, and guilty to the second. The Crown offered no evidence on the first indictment. She was acquitted by order of the judge and a “not guilty” verdict was entered. On 5 th November she was sentenced and shortly afterwards the sentence was quashed 3. The appellant was therefore convicted of making false retractions of a most serious allegation of sexual crime when she would otherwise have been in a position to assist the Crown to prosecute the perpetrator to conviction. On this basis she deliberately enabled her husband to escape justice for the crime of rape for which she was the victim. On both occasions when the case has been before this court, the prosecution has proceeded on the basis that the allegations of rape and domestic abuse suffered by the appellant at the hands of her husband were true. We shall proceed on the same basis. Nevertheless it is only fair to the appellant’s husband to record that he has consistently denied the allegations and has not had any opportunity publicly to challenge or refute them. 4. During the course of the judgment on her appeal against sentence, a number of observations were made in this court: “… a complaint that an individual has been the victim of crime is not, and never has been, merely a private matter between the complainant and the alleged perpetrator of the crime. Every crime engages the community at large. There is a distinct public interest in the investigation and, if appropriate, the prosecution and conviction of those who have committed crimes. … an unconvicted criminal is free to continue to commit crime and to add to the list of his victims, as well as to escape justice. Therefore, perverting the course of justice is not confined to making and pursuing false allegations or giving false evidence, which is always a very serious offence. It extends to the retraction of truthful allegations or the retraction of truthful evidence. …”. 5. Critical features of mitigation were then addressed: “The different between the culpability of the individual who instigates a false complaint against an innocent man and the complainant who retracts a truthful allegation against a guilty man will often be very marked. Experience shows that the withdrawal of a truthful complaint of crime committed in a domestic environment usually stems from pressures, sometimes direct, sometimes indirect, sometimes immensely subtle, which are consequent on the nature of the individual relationship and the characters of the people who are involved in it. Where a woman has been raped, and raped more than once by her husband or partner, the father of her children, the man in whom she is entitled to repose her trust, those very actions reflect, and are often meant to reflect, manifestations of dominance, power and control over her. When these features of a relationship between a man and a woman are established, it is an inevitable consequence that the woman who has been so ill-treated becomes extremely vulnerable. Of course it is better for a truthful complaint to be pursued, but if the proposal that it should be withdrawn is not accepted, leading to a positive retraction and admission that the original truthful complaint was untrue, and the complainant is then prosecuted to conviction, the sentencing court, when assessing culpability, should recognise and allow for the pressures to which the truthful complainant in such a relationship has been exposed, and should be guided by a broad measure of compassion for a woman who has already been victimised.” 6. The case attracted a good deal of understandable public interest, and indeed concern. It was reported in The Guardian newspaper on 16 December 2010 that the Director of Public Prosecutions, referring to the need of the Crown Prosecution Service to organise an improvement in their handling of retraction cases, and plainly referring to this particular case, said that he did not consider “justice was done or seen to be done”. Unsurprisingly Mr Niall Quinn QC on behalf of the appellant highlighted this comment, and used it to develop his submission that the conviction should be regarded as unsafe. 7. Thereafter, following a detailed consultation exercise, fresh Guidance was published by the Crown Prosecution Service. If this Guidance had been in force at the date of the appellant’s conviction, on the basis of the evidence that she had been raped and subjected to other domestic violence over a long period and that this had had a damaging effect on her health, she would, as Miss Alison Levitt QC for the Crown accepted, in all likelihood, not have been prosecuted. Mr Quinn suggested that it was not simply that a prosecution to conviction would have been unlikely, but rather, the appeal should be approached on the basis that she would not have been prosecuted at all. The appeal against conviction 8. The entire case has now been re-examined. The solicitors and counsel who acted on behalf of the appellant have provided the appellant’s new legal advisors with all the material available to them, and commented on the facts which confronted them. Further detailed instructions have been obtained from the appellant. A number of witnesses who support her account of the ill treatment to which she was subjected have provided statements. Recently she was examined by Roger Hutchinson, a consultant forensic clinical psychologist. Based on a rather developed account of events provided to him by the appellant herself, and, as far as we can see, without dealing with all the material available to us, he concluded that during the latter part of her relationship with her husband the appellant was experiencing post traumatic stress disorder, and that this condition persisted at the time when she retracted the allegations of rape, and indeed still continue. Based on this material Mr Quinn submitted that crucial evidence was not properly examined or considered before the appellant pleaded guilty, and that if it had been, she had a viable defence to the charge, in the form of duress and, initially at any rate, although it was rightly abandoned at the hearing of the appeal, marital coercion. The issue of duress in the form of the physical, sexual and mental abuse inflicted on her is at the heart of the appeal, and we shall examine the evidence closely, omitting a degree of Mr Quinn’s forensic overstatement from our analysis. Mr Quinn further suggested that all this material revealed that the decision to prosecute the appellant followed failings by everyone concerned in the process which culminated in the sentence imposed at Mold Crown Court, and constituted an inexplicable and inappropriate exercise of the well established prosecutorial discretion which required that she should not be prosecuted at all. In short, he submitted that if all the relevant facts had been properly considered the prosecution would not have gone ahead, or would have been stayed on application to the court. 9. For present purposes, we shall not distinguish between evidence which was available prior to conviction, and material relating to the period before conviction which has emerged subsequently, which we considered de bene esse. In the end, subject to the reservations expressed in the course of the judgment, we admitted the evidence. The facts 10. The narrative begins on 28 th November 2009 when the appellant reported that she had just been raped by her husband and had been raped by him on two earlier occasions. She was quickly relocated to the Women’s Refuge with her four children and he was immediately arrested. He denied the offence. On the following day she was video interviewed. She gave a detailed account of rape. He was interviewed and maintained his denials. He was then charged with rape and remanded in custody. On the following day she was video interviewed. She made detailed complaints. He, too, was further interviewed and maintained his denials. 11. On 30 th November the husband was remanded in custody by the Magistrates Court and the case was sent to the Crown Court. A few days later he made an application for bail to the Crown Court. This was refused. 12. On 10 th December a preliminary hearing took place at Mold Crown Court. Mr A was released on conditional bail, with a specific condition that he should not directly or indirectly contact any prosecution witness. 13. During the course of the police investigations the appellant was provided with support and assistance. She was assisted by the Montgomeryshire Family Crisis Centre and referred to Powys Social Services. She was in telephone contact with Victim Support. In connection with possible counselling, she was advised to seek assistance from her medical practice. 14. On 21 st December it was reported that the appellant wished to withdraw her allegation of rape against her husband. The police contacted Victim Support Service to establish whether any problems had been reported to them. The investigating officer was told that none had been mentioned. During the Christmas period there was something of a reconciliation. Sexual intercourse took place between the husband and wife. This was not rape, nor even reluctant acquiescence, but consensual sexual intercourse. It happened because, in her reported words, she “wanted” to. Throughout this period she must have been aware that her husband was in breach of the bail condition that he should have no communication or contact with her. The only realistic conclusion is that she connived at it. She now finds it difficult to explain her behaviour at this time. It does however provide the contextual background to the submission by Mr Quinn that there was a viable defence of duress open to the appellant. 15. On 7 th January 2010, the appellant contacted the police to withdraw her complaint. A further video interview was conducted with her. She made clear that she wished to withdraw her complaint of rape against her husband and that she did not want to attend court. She indicated that she wanted to put everything behind her and move forward for her own sake and the sake of her children. She did however confirm that her relationship with her husband had ended, and she confirmed that all of her allegations were true. It was explained to her that, even if she wished to withdraw the complaint, the case might still proceed and that if it did she might be required to give evidence. In answer to the specific question why she was withdrawing the complaint, the contemporaneous notes record that “(she) states that nobody has put any pressure on her”. She confirmed that she had “engaged with Victim Support and received emotional support. The Montgomery Family Crisis Centre has also been involved”. 16. On 14 th January, following a case conference to assess this development, the appellant was informed that the prosecution would proceed. She was invited to a meeting at Mold Crown Court on 18 th January when a plea and case management hearing was due to take place. The husband pleaded not guilty to the counts of rape and the trial was fixed for the week of 4 th May. In the meantime the appellant met the prosecution team at Mold Crown Court. She admitted to them that she had been in contact with her husband over the Christmas period. A signed statement outlining the contact which had taken place was obtained from her. She admitted that she had had sexual intercourse with him, consensually, on a number of occasions during the Christmas period, and she pleaded with the police not to arrest her husband, notwithstanding that he was in breach of his bail conditions, as this would make the situation worse. She said that everything had been done for her children so they could enjoy their Christmas. Her husband’s solicitor was informed of the breach of bail and told that in the circumstances, instead of arresting him, he would receive a warning. 17. On 23 rd January the appellant telephoned DS Whitgreave and said that she had received a series of abusive text messages from her husband. Later that day she sent the police officer a text message to the effect that she had had a very low day, having found out that her husband had been seen out with another woman. She went on that she had complained about her husband’s texting in order to “spite him”. There was no excuse for what she had done but it had been a “very tough few days” for her. She had calmed down and had time to think about it. She was sorry for having done something so stupid. When this text message was followed up by the police the appellant admitted that she had not received any text messages from her husband and that she had made up the story to get back at him. There were understandable police concerns about her reliability as a potential witness. 18. On 1 st February the husband was involved in a road traffic collision. It was believed that his front seat passenger was his wife. The collision occurred in an area from which he was excluded by his bail conditions, and obviously, his contact with his wife constituted a further breach. In view of the earlier warning, on 5 th February he was arrested and remanded in custody. 19. On 7 th February, while he was in custody, the appellant made her first false retraction. She telephoned the police asking to speak to the investigating officer, and when the officer telephoned her back, the first thing she said was “that’s it, it’s over what is going to happen if I now say I made it all up, I have lied about the rapes. I lied because Terry would not let me go and work in the place again, I wanted to work there as I liked the money”. She was referring to work in a massage parlour. 20. During this conversation the appellant was aggressive in her manner. The officer explained in clear terms that she needed to think very carefully about what she was saying. She had to be sure that what she was saying was in fact the truth. She said that she was not bothered about what happened to her and didn’t care if she was charged or dealt with for “whatever offence”. It was made clear to her that she could not get her own way. She was told that the CPS would have to be consulted and that when a decision had been made she would be told. She was informed that her husband would be at the Mold Crown Court on 9 th February in connection with his breach of bail conditions. 21. On 9 th February the husband’s application for bail was refused. On 11 th February the appellant attended the police station voluntarily, to tell the “truth” about the allegation. She said that the rape allegations were lies which she had made up. The police warned her of the potential seriousness having made false allegations of rape. She was given legal advice and cautioned. A solicitor attended the police station to represent and advise her. The appellant provided a written statement to the police. She maintained that her allegations were false. She explained her lies on the basis that her husband would not let her return to work in the massage parlour. There were financial pressures, and she felt she had to get back to work quickly and earn some easy money to try and sort out the debts. 22. Mr Quinn suggested that the explanation given by the appellant for her false story was such nonsense that an investigation by the police would have demonstrated that what she was saying was untrue. With respect, that is a little too easy: the entire prosecution case depended on the credibility of the appellant. Notwithstanding the clear warning she had received about the seriousness of her position this was the explanation that she chose to provide for her false allegations against her husband. She was later to repeat and amplify it. 23. On 12 th February the husband appeared at Mold Crown Court. The Crown offered no evidence against him. In the circumstances there was no alternative. Effectively that was the end of the rape allegation against him. There was no possible justification for remanding him in custody. 24. An investigation was now conducted into the offence admitted by the appellant, namely that she had made a false allegation of rape against her husband. On 16 th April she was arrested on suspicion of perverting the course of justice. A tape recorded interview in the presence of her solicitor took place. 25. The appellant said in categoric terms that she was never raped by her husband. She was asked to explain why she made the false allegations, and it is clear from the record of the interview which we have studied, that the police were sympathetic, and offered her every opportunity to deny that she had made a false allegation. They discussed whether her husband had put emotional pressure on her, whether she was concerned about the position of the children, and whether her support network was limited. She was questioned whether he had convinced her to go to the police and withdraw the allegation, and whether he had an emotional hold over her. She was asked whether she had received sufficient support from outside agencies. Even at that stage the police pointed out that if the allegations were true and what she was telling the police now, that is, that the retraction was the lie, she could still tell them about it. She was adamant. The allegations were untrue. She was responsible for them. She denied that she was withdrawing the complaint because of lack of support. 26. On 23 rd June the appellant was charged with perverting the course of justice on the basis of her false allegation against her husband. She was bailed. Her solicitor, Mr Sherrard, prepared her case. On 13 th July the case was sent to the Crown Court. It was listed for a preliminary hearing on 23 rd July. 27. Mr Sherrard, reflecting his own personal concern, said directly to his client that the police remained “unconvinced” that her original complaint was a false one. He believed that the police had charged her with the offence with some reluctance. In his letter to her, he noted that she appeared to be in full command of her faculties, and he advised her that the police were “supposed to work hard to punish those who make false allegations”, but they may also consider that they were “unfairly treating someone who was in fact a victim”. She was later advised in writing, that a custodial penalty would normally follow conviction for perverting the course of justice, but the ongoing relationship with her husband and children would be a significant factor in the sentencing decision. Shortly before her appearance on 23 rd July her solicitors wrote to the Crown Court to inform the court that they might be in difficulty on that date because she had failed to respond to letters. In explanation, they said that she was “extremely distracted by the turbulence in her life, to a very unusual degree, and she previously failed to keep in contact whilst on police bail, but nevertheless answered bail”. Mr Sherrard briefed Mr Gordon Hennell of Counsel. 28. The brief to Mr Hennell suggested that the officers involved in the case clearly believed that the allegations made by the appellant in November 2009 were true, and that they were guessing at the motive for her subsequent assertion that she had told lies. He was expressly instructed that it did however appear to be accepted “at least that there is no improper pressure from (the husband) upon her”. 29. Mr Hennell met the appellant for the first time on 30 th July. At first she told him that she planned to plead guilty to having made the false allegation of rape. Those were her instructions to him. If he had accepted them at face value she would have pleaded guilty to that charge. Mr Hennell was sceptical and advised her in detail and without equivocation. On direct questioning she admitted that she had indeed been raped. The allegations were true. The case was relisted for a preliminary hearing on 30 th July. Again Mr Hennell advised that if the allegation of rape was true, it would not be right to plead guilty, even if the appellant was under pressure to withdraw the allegations because she wanted to be with her husband. She needed to think about the position. She did not need to make any decision on that day. The advice that she should tell the truth was repeated in stark terms: “stick with the truth”. 30. Mr Hennell also advised her that a family lawyer should be instructed to consider a non-molestation order to prevent her husband contacting her and the children. 31. On 5 th August the appellant contacted the police. She said that she had come to her senses and that she had in fact been raped. In the meantime she consulted family lawyers and they prepared her sworn statement dated 16 th August in proposed proceedings for a non-molestation and occupation order at Welshpool County Court. In the statement the appellant asserted that she had been subjected to domestic abuse and had indeed been raped on three occasions. As to her reason for retracting her allegations to this effect, she said that her husband “persuaded” her to do so on the basis that if she did “any punishment (she) would suffer would be considerably less than that he would be subject to.” She added that her husband was able to control her. 32. On 31 st August she was arrested and, with her solicitor present, interviewed. Her account in this interview is not consistent with any possible defence of duress. She said that she had been told by someone, probably her husband’s sister, that if she said she had lied about the rape she would not go to prison, but as a single parent, would receive a suspended sentence. However she said that when she spoke to the barrister at court he had told her that she would receive a sentence of 12 to 18 months imprisonment. The significance of this became clear. She had decided to be truthful and to accept that she had lied when she had said that the rapes had not happened. She was asked why she had not turned to Victim Support. She said that she had, and that when she said to the lady in Victim Support that her husband had changed and was being very good with her, that he had altered and he was behaving very loving, she was advised to be very careful because he would revert to his old ways. She was asked the direct question why she felt she could not speak to the police, and she responded that she did not know. 33. In this interview she said: “the only reason why I said I’d lied and make it all up was because I had pressure put on me and I’d been advised by somebody that if I said I was lying, I wouldn’t be sent to prison because I am a single mum and I’ve got 4 children. That’s the reason why I said I was lying, because that’s what I presumed would happen. I was told I would get a suspended sentence as they wouldn’t put the kids in care”. 34. She was asked: “When Terry’s sister came up to the house, whose idea, who first started sort of suggesting things to try and help with the situation, because as you admitted, you weren’t sort of coping …” 35. The appellant replied “Well I thought about it, and I mentioned it to her on that day, and I said that the only thing that was holding me back is the fact that I am scared that if they arrest me, the kids and that’s when she said “don’t worry about the kids” …”. 36. She was asked whether anybody put her under pressure to phone that day and say that she had lied. She responded: “I don’t know whether it was pressure or not. Put it this way, Tracey wasn’t a regular visitor to the house and that visit was almost a bit out of the blue and I haven’t spoken or haven’t seen her since”. 37. She was asked directly whether her husband had put her under pressure to withdraw her allegations when she first did so. She responded: “We discussed it and our thinking was that if, because I had asked my solicitor how long do you think Terry would get inside and they said and I know Terry has told me this since, that his solicitor had said more or less, he’s get about 10 years, and serve half. Then we discussed about me ringing up and saying that I was lying and like he’d said and Tracey said as well, that it would be a suspended sentence for just like 2 or 3 months. And then me sitting there stupidly thinking right, what’s best for the kids, Daddy missing for 5 years or Mummy missing for 3 months and that’s where them, yeh, …”. 38. At this the interviewing officer interrupted and made an extremely pertinent observation: “So you say, “our thinking”,… ” 39. And she responded: “Sorry, me and Terry would sit down and discuss this and I remember saying to him “look, Mummy disappearing for 2 or 3 months is better than Daddy disappearing for 5 or 6 years”. And yeh, he wasn’t happy with the idea, but he didn’t stop me.” 40. At the same time, with her consent, her solicitor provided the police with a copy of the statement made by her in support of her non-molestation application, proceedings which had not yet been started. He believed that this account of the incidents of domestic violence would greatly mitigate her culpability. He suggested to the police that as everything they did was designed to assist victims and prevent what had actually happened (that is, the withdrawal of a true complaint)her personal circumstances made her “particularly vulnerable”. 41. On 16 th September the appellant was charged with an additional offence of perverting the course of justice by falsely retracting a true allegation of rape. Her solicitors obtained her authorisation to be provided with her medical records with a view to obtaining a psychiatric or psychological report for her at the Crown Court. 42. On 20 th September the appellant’s husband was arrested following an incident in which he, in effect, forced entry into her home at about 5.30 – 6.00a.m. She told her solicitors that she was not assaulted, but the “whole process put her in fear”. She called the police. He was arrested. The incident made her keen to pursue an application for a non-molestation order. She agreed to make a witness statement about the incident to the police. She was now very keen to stop him ever going back to the home. Thereafter her husband was remanded on bail, with conditions that he should not contact her, whether directly or indirectly. 43. In due course the appellant’s medical records were received from her doctor. Apart from a brief mention of post-natal depression some 7 or 8 years earlier, the solicitor could find no reference to depression or any other psychological or psychiatric problems, therefore he did not, as he put it “progress a medical report” into the appellant’s thinking during the relevant periods, at any rate until the issues had been discussed further with counsel. 44. On 14 th October a conference took place with counsel in his chambers. Advanced Disclosure made no mention of any investigation into pressure put upon the appellant by her husband and his sister. However on the basis of her own instructions, the appellant decided to plead not guilty to making a false allegation of rape, but guilty to making a false retraction of the allegation. Mr Hennell advised that this meant that there would be a much greater chance that a custodial sentence would be avoided. The proposed plea would be acceptable to the Crown. He advised on the evidence to be put together for the purposes of the Pre-Sentence Report. 45. On 15 th October at Mold Crown Court, in accordance with her decision on the previous day, the appellant pleaded not guilty to the first indictment and guilty to the second indictment. The prosecution offered no further evidence on the first indictment. A Pre-Sentence Report was ordered. The appellant’s solicitors sought information from the Crown Prosecution Service whether there had been any investigation of pressure placed on the appellant to retract the original allegation, and the state of the investigation into his actions when he forced entry into her home, that is, the incident on 20 th September. 46. On 28 th October the husband came to the appellant’s home. During his visit he attacked her. According to her report he dragged her outside by her hair and began to tear her clothes off. Much later she was to tell Mr Hutchinson that according to her husband she had ripped her own clothes off and caused some injury, and that when the incident was investigated the police told her that her husband would not be arrested as there were not enough physical injuries to her body. 47. The Pre-Sentence Report was completed on 4 th November 2010. This gives the appellant’s account of her marriage which was, from the outset, “turbulent”. The appellant described her husband as “controlling” and “violent”, and the relationship was marred by a history of abuse. Although she felt intimidated by her husband, she tried to keep up a normal façade for the sake of the children. According to her account she talked of extreme financial difficulties and gaining employment at a massage parlour to alleviate them. In order to deal with Mr Quinn’s contentions about the absurdity of accepting the “massage parlour” explanation she gave to the police, we must note that she told the writer of the report that her husband had “initially agreed to transport her to the employment; however the nature of the work caused immense difficulties between the couple … her husband’s attitude to her worsened and at every opportunity he degraded and tormented her in relation to the employment she had undertaken. He had also, against her will, informed her parents of the work she had ventured in to. … she left the employment after 2 days work.” Although she wished to escape from the marriage, she felt compelled to stay due to threats by him to harm himself if she left, the emotional strain and lack of finances and isolation. 48. The appellant’s explanation for the retraction of the allegation of rape was that after her husband had been arrested and remanded in custody she felt “immense guilt”. She decided that taking divorce proceedings would be “punishment enough for him” and so she withdrew the complaint. She was in an emotional state and very confused at the time. Although she had suffered years of abuse by her husband and was frightened of him she reported that “due to her feelings of guilt, low self esteem and wanting her children to have a family Christmas, she continued communicating with him”. She felt under “immense pressure” from her husband to retract her original statement and she had agreed to do so “due to fear of repercussions from him”. The reasons for the retraction were developed later in the report. The decision arose from “immense pressure” placed upon her by her husband. She also “felt the children should have regular contact with their father especially at Christmas”. This coupled with financial difficulties, lack of family support and isolation appeared to have contributed to “the retraction of the complaint”. She decided to lie to the police “without thinking of the consequences”. 49. This unprompted contemporaneous account by the appellant to the writer of the Pre-Sentence Report about the circumstances in which she came to make the false retractions of which she was subsequently convicted are, again, inconsistent with a defence of duress. 50. On 5 th November at Mold Crown Court the Pre-sentence Report and careful submissions on behalf of the appellant by Mr Hennell were considered before the appellant was sentenced to an immediate prison sentence. 51. In the context of the submission that the appellant was acting under duress when she retracted her allegations against her husband it is perhaps worth underlining what she herself has said in her recent sworn statement prepared for the purposes of the present appeal. 52. She reflected on the period between her husband’s release from prison on bail and her first lie to the police that “Sometimes he would be so upset that he appeared to be having a nervous breakdown. Thinking of it now it was all a bit over the top, but at the time it made me feel all the more sorry for him. Although he had done what he had done to me, by this time I was feeling responsible for all the upset and worries that he had about missing his children and being frightened of going to prison. The children were upset because they couldn’t see their father and it was basically all my fault”. 53. Later she said “… I had tried to withdraw the complaint but that the Prosecution wouldn’t drop the case. Tracey (her sister-in-law) asked quite calmly what would happen to me if I told the police it was all a pack of lies. I told her I wouldn’t do it because it would mean me going to prison and leaving my children, but Tracey said they wouldn’t put me in prison because I had 4 children … She was present when I made the telephone call to (the police)” 54. Later still, referring to events on 11 th February, she said: “I can only say that when I was in that mental state I didn’t think about what would happen to me but only if the case didn’t proceed Terry wouldn’t have to be in prison, my children would have their father back and I would have some help”. 55. She had said earlier that when he was away she had “simply felt lost without him”. She went on: “All I can say now is that I would have said anything at that time to make it all go away. I know it makes me sound quite calculating but I was really saying whatever I could to produce the result I wanted”. Miss Levitt suggested that on the appellant’s own present account, plainly she was under pressure, but the pressures were far removed from constituent elements of the defence of duress. We agree. 56. As we have noted, we were pressed with the contents of the appellant’s evidence in the non-molestation proceedings at Welshpool County Court. We shall simply record that in answer to her application, her husband produced a letter which he says was received by him while he was in custody, and therefore written before 12 th February, in which the appellant wrote to him: “I have done the one thing that you said not to do. I told you I would make it all go away and I will by doing what you said not to do. I want you home babe, we all miss you so much. I cry every night and every morning coz your not here”. The letter continues in affectionate terms. 57. We can now turn from the lengthy summary of the facts to the submissions advanced in support of the conclusion that the conviction is unsafe. Discussion The offence Perverting the course of public justice 58. Before the hearing of the appeal we invited submissions from both sides on the broad question whether the retraction of a true complaint could constitute the offence of perverting the course of justice. It was agreed that given proof of the necessary intention and the ingredients of the offence governed by the long standing decision in R v Vreones [1891] 1 QB 360 such conduct could indeed fall within the ambit of the offence. The conduct alleged and admitted went very much further than a witness withdrawing a complaint or withholding evidence of rape. Rather it involved repeated assertions which led directly to the acquittal of the man who had committed rape on more than one occasion. It was not suggested, and we can see no reason for concluding that in the context of the ingredients of this offence, the victim of a crime is entitled to be treated differently from any other witness to a serious offence who falsely retracts truthful evidence. In this context Miss Levitt emphasised that the issue was the defendant’s intention, not her motive, and that if the necessary intent was present the defendant’s motivation, particularly if she was a victim of the crime, was relevant and should be taken into account when the court was considering sentence, assuming that in the light of current CPS policy she was prosecuted at all. 59. In our judgment, it is plain that this conviction cannot be quashed on the basis that the appellant’s conduct did not fall within the ambit of the offence of perverting the course of public justice. The defence Duress 60. On the facts here the appellant had a complete defence to the charge based on the allegation that she had made a false complaint of rape against her husband. That defence was that the complaint was true. Mr Quinn submitted that it has now become apparent, and if the issue had been properly addressed before the appellant pleaded guilty, it would then have been apparent, that she also had a viable defence to the second indictment in the form of “duress”, and that she should have been advised accordingly. 61. Mr Quinn’s argument took as its starting point the observations in this court, when dealing with the appeal against sentence, which had underlined the specific problems which faced an abused partner. This was lent significant support, he submitted, by the vulnerability of the appellant as now revealed by the post conviction psychiatric evidence that she was at all material times suffering from post traumatic stress disorder at all relevant times. In this context care however is needed to avoid any juxtaposition between the former law of provocation in the context of section 3 of the Homicide Act 1957 , which provided Mr Quinn with a number of authorities to which he directed our attention, and the now seemingly endless debate about the true constituents of the characteristics appropriate to a defendant advancing that defence, and the defence of duress. 62. Duress is subject to clear limitations, and the thrust of recent decisions in the House of Lords has been that these limitations should not be further eroded. (See R v Hasan [2005] 2 AC 467 ). Although not directly relevant to the outcome of this appeal, in the context of duress, the situation of women who have been subjected to domestic abuse and are coerced into committing crimes against third parties has been valuably illuminated in the article by Janet Loveless, Domestic Violence, Coercion and Duress [2010] CLR 93, where the writer observes: “Leaving aside for the moment the contentious issue of whether an abused woman, even one suffering from BWS, remains a reasonable person or not, the problem of the law is how to translate the medical language of “learned helplessness, passivity and paralysis” into the legal discourse of duress. It is not simply that there is automatic equivalence between “learned helplessness” and “overpowerment of will”; the two are not the same”. The writer analyses the decisions of this court in R v Emery [1992] 14 Cr. App. R(S) 394 and Bowen [1996] 2 Cr. App R 157. She suggests that reference to characteristics such as post traumatic stress disorder or battered women syndrome “merely reinforces the inconsistency and reveals the incompleteness of the test which requires that the defendant shall have displayed “reasonable fortitude””. 63. All these considerations acknowledged, the question nevertheless remains whether on the facts here, and making the most generous allowance for the appellant’s psychiatric condition, duress might have provided a realistic potential defence. Miss Levitt emphasised, and we agree, that duress should not and cannot be confused with pressure. The circumstances in which different individuals are subject to pressures, or perceive that they are under pressure are virtually infinite. Such pressures may indeed provide powerful mitigation, as this court recognised when dealing with the appeal against sentence. Dealing with it very broadly, duress involves pressure which arises in extreme circumstances, the threat of death or serious injury, which for the avoidance of any misunderstanding, we have no doubt would also include rape, and which cannot reasonably be evaded. (See, for example, the approval of Graham [1982] 74 Cr. App. R 235 in Howe [1987] AC 417 in the House of Lords, and the restricted approach to this problem intimated in the House of Lords in Hasan , where Lord Bingham warned against drawing comparisons between the duress defence and any other defences which might widen the scope of duress.) 64. The contemporaneous evidence available to the appellant’s legal advisers, once she had decided to tell the truth provided a great deal of mitigation, but no viable defence of duress. That was not the case that she was advancing in her instructions to them, or for that matter in her accounts to the police, who were undoubtedly sympathetic to her situation, and did their best to dissuade her from withdrawing the allegation and then to find an explanation for her doing so. She did not suggest to any of them that when she falsely retracted her truthful complaints she was acting under the threat of serious ill treatment or violence at the hands of her husband or anyone else. The police interview on 16 th August is one of the crucial features of this case. By now, it must be remembered, the appellant was asserting that her husband had raped her more than once, and had treated her with violence, and that she was confirming the truth of her allegations against him. If she had been threatened by him with violence if she did not withdraw the complaint, as it seems to us, it is unconceivable that she would not have said so at the time. If she was asserting that he forced a retraction by raping her or threatening to rape her, there was no reason why she should not also have explained her retraction of the rapes by reference to any such threats. 65. We have recorded and shall not repeat the account given by the appellant of the history of her marriage narrated to the writer of the Pre-Sentence Report, prepared after she had already pleaded guilty, but before she was sentenced. This account, too, was quite insufficient to justify an application by her legal advisors for the court to allow her to vacate her guilty plea. 66. Even her most recent statement does not suggest that she was threatened with violence during this period, and in particular, at the time when she made her false retractions. We have set out her account in some detail in paragraphs 51-55. We immediately recognise that the appellant felt under huge pressure, but although feeling concerned for or even fearful of her husband, or a sense of guilt, or concern about what would happen to her children if her husband was in prison for 10 years or thereabouts, taken in combination, undoubtedly creates difficult problems and provides significant mitigation, does not constitute duress. It is unnecessary for us to examine the further problem of the alternative ways in which the appellant might have sought to avoid any such risk, not least, the favourable attitude of the police, who undoubtedly were anxious to give her every possible assistance. 67. The recent psychiatric report is based on an assessment made in December 2011 and January 2012. We have studied it in detail. The appellant’s account of why she retracted her allegations has developed. Nevertheless, even on this basis, the duress defence was not realistically available to her. According to the report she stated that at the time of retraction “she felt very guilty”. … “she believed instigating divorce proceedings was punishment enough and so decided to withdraw her complaint”. … “when Mr A had been released on bail he had contacted her”. … “she was in a very emotional state and was confused at the time and she was fearful of him as a result of the years of abuse she had suffered”. … “due to her feelings of guilt, low self-esteem and wanting her children to have a family Christmas, she continued communicating with Mr A.” … “she had been under immense pressure from Mr A to retract her statement and due to her fear of repercussions from her husband she had agreed.” 68. The conclusions proceed on the basis of the appellant’s account to the writer that the retraction was made as a consequence of her husband’s “continued abusive behaviour towards her after the allegations were made”. This, however, is inconsistent with any of the other accounts provided by the appellant. She referred to the visit of his sister, stating that: “She became very upset and told Mr A’s sister that she couldn’t cope without Mr A and the family needed him back. She states that at this point they planned to say the allegations were a lie.” 69. The report goes on to record that she said that “the reason she told police that the allegations were untrue is because of the immense feelings of guilt and worry and also the pressure from Mr A and what he would do to her if she did not sort the problem out.” 70. Notwithstanding Mr Quinn’s forceful and persuasive advocacy, we can see no basis for concluding that the appellant felt exposed to violence or the threat of violence when she made the false retractions on which her prosecution was founded. The defence of duress was not realistically available, and faced with the material now available, no responsible counsel would have advised her that the case should be contested on this basis. The plea 71. It was suggested in written and brief oral submissions that the guilty plea tendered by the appellant was an equivocal plea. The basis for this assertion was duress. No further basis for this argument appears. There is nothing in the material available to us to which suggests that the plea was equivocal. The decision to prosecute 72. This submission as developed, had a number of different facets, and we shall attempt to summarise the most significant features. It is suggested that a combination of errors before the appellant’s conviction was made by the police, the appellant’s legal advisors, the Crown Prosecution Service, and indeed the court. Although the errors were not made maliciously, and indeed in his oral argument, Mr Quinn accepted that he could not identify any specific area of professional incompetence, he submitted that the overall effect of the errors was that the appellant was prosecuted when, if they had not been made, the prosecution would not have proceeded. 73. In the context of the prosecution which took place, dealing first with the police, we can find nothing for which the police should be criticised. We have to be realistic. The allegation of rape depended on the appellant’s complaint. Her husband resolutely denied the allegations. The police were presented with a woman who they believed had been raped by her husband, but who was nevertheless determined to assert that the allegations against him were false. They made every proper attempt to dissuade her from retracting her allegations, without success. They sought to find an explanation, examining with her whether she had been forced by her husband to withdraw the allegations. They could not do more to help her avoid the consequences of her actions. They could not pressurise her into re-writing the script she was determined to provide, and indeed it is not beyond the bounds of imagination that they would have been criticised for being over forceful and lacking in sensitivity to the needs of a victim of rape who no longer wished to proceed with the allegations. Moreover once the case against her husband had been wholly undermined by the appellant’s first retraction and assertion that she had lied, the facts which might reasonably undermine her credibility would have been disclosed to her husband’s defence team. There was no alternative. In reality, he was only released from prison when his continuing detention in custody and his continued prosecution would have been unjustified. There was no longer any realistic prospect of success. At the same time, faced with a clear belief that the appellant was lying when she exonerated her husband of rape, the investigating officers were entitled to believe that he had escaped justice. That is not an irrelevant consideration. So they went as far as they properly could in interview in an endeavour to discover whether she had been subjected to threats. Their efforts were, because of the position taken by the appellant, unsuccessful. That does not found any justified criticism. 74. We turn to the appellant’s legal representatives. In our judgment she was well represented. The files show that both her solicitor and counsel were anxious that she should tell the truth. Her position if convicted of making a false allegation of rape would certainly have been far more perilous than if she were convicted on the basis of the retraction of a true allegation. The fact that she was immediately released from custody on her appeal against sentence amply establishes the value of the advice given by her legal advisors. If she had been convicted of making a false allegation of rape, the custodial sentence would have been longer, and wholly unappealable. 75. Specific criticism is directed at the failure by the legal advisors to seek a psychiatric report of the kind now available. For this purpose, Mr Quinn would presumably wish us to proceed on the basis of the accounts given to Mr Hutchinson by the appellant, rather than her accounts to the police, or indeed to the writer of the Pre-Sentence Report, and indeed her own account in this appeal. The question of medical evidence was addressed by the solicitors. They obtained the appellant’s medical records. On examination they could find nothing in them to suggest that there was or could be a psychiatric defence, not least because on the accounts the appellant was giving to the police and on her instructions to them, and her later account for the purposes of the Pre-Sentence Report, for the reasons we have given, no such defence was viable. Even now, as we have explained, the psychiatric evidence, properly examined, would not, in the light of the remaining evidence, provide a sustainable defence. Although this criticism is directed at the process which culminated in the conviction, as for the possible mitigation the report might have provided, the court considering the appeal against sentence did not need to be informed by psychiatric evidence. 76. Faced with these considerations, Mr Quinn submitted that if a psychiatric report of the kind now available had been presented to the Crown Prosecution Service it would, or might, have led the Crown to discontinue the proceedings in the light of the Code for Crown Prosecutors and the CPS for prosecuting cases of domestic violence. The general Code, while asserting the continuing value of the prosecutorial discretion not to prosecute, starts on the basis that a prosecution will normally take place unless the factors in favour of allowing the matter to be dealt with by an out-of-court disposal, such as the defendant’s illness, outweigh the public interest. In particular, however, the more serious the offence, the more likely that the public interest would require a prosecution. The Code also observes that although public interest factors in an individual case may argue against a prosecution, the prosecutors nevertheless should reflect whether these factors should not be put before the court after conviction, as mitigation of sentence. 77. In relation to domestic violence, the entire policy of the CPS acknowledges, as this court has, that many victims of domestic violence find it difficult to give evidence at court, and that they need practical and emotional support for this purpose. Sometimes the victim withdraws support for the prosecution and no longer wishes to give evidence. The policy requires all these matters to be addressed. The focus, however, is the withdrawal of support for the prosecution, not the fabrication of false retractions. That issue has been directly addressed as a result of the present case, but the new policy was directed to fill the gap in the existing CPS Guidance revealed by this case. 78. As it seems to us, Mr Quinn’s submission overlooks the seriousness involved of the offence committed by the appellant. If the allegation of rape was true, the appellant had deliberately and falsely and persistently chosen to exonerate the man who had raped her. The real issue for the Crown Prosecution Service was the form of perverting the course of justice which should be prosecuted, not whether there should have been any prosecution at all. In fact, Mr Sherrard on her behalf, advanced all relevant considerations arising from the police belief that she had been the victim of rape for consideration. We very much doubt that disclosure of a psychiatric report in terms of the present report but approaching the appellant’s accounts of events on the basis of those she was advancing during 2010 would have induced or persuaded the CPS to discontinue the prosecution. The reality is that such a report would have provided ample mitigation, (but for the reasons given in our judgment in the appeal against sentence, this was obvious). Given the way the investigation had developed throughout 2010 up to and including the interview on 31 st August, many competent legal advisors would have seen no advantage to their client in disclosing it to the prosecution. In any event, however, the report was not obtained, and we fully understand the reasons why it was not, and the reasons why, if it had been obtained, it would still not have been disclosed to the prosecution. 79. Miss Levitt accepted that if the most recent CPS Guidance about the approach to be adopted to cases where truthful allegations are retracted by the victim of rape or domestic violence had been in existence at the time when the appellant pleaded guilty, she would not have been prosecuted. This Guidance followed the expression by the Director of Public Prosecutions of his view on this particular case. Miss Levitt did not accept that there had been an abuse of process or, that if all the steps suggested by Mr Quinn had been taken, a stay of proceedings would have been ordered. 80. We agree. We have detected the development of what may, if not arrested at an early stage, become a new form of satellite litigation, in which the exercise of the prosecutorial discretion is made subject to a judicial review or abuse of process/stay of proceedings argument in the Crown Court. 81. As to judicial review, there can, we suggest, be very few occasions indeed when an application for permission by or on behalf of a defendant should not be refused at the outset on the basis that an alternative remedy is available in the Crown Court. This is the appropriate tribunal for dealing with these questions on the rare occasions on which they may arise. Precisely the same considerations apply to a case involving summary trial. 82. This principle is well established. In R v Director of Public Prosecutions , ex parte Kebilene [2000] 2 AC 326 , the House of Lords allowed an appeal from the decision of the Divisional Court presided over by Lord Bingham CJ on the basis that the decision of the Director of Public Prosecutions to consent to a prosecution was correctly addressed in the Crown Court as part of the ordinary criminal process. Lord Steyn, with whom Lord Slynn of Hadley and Lord Cooke of Thorndon agreed, observed: “… I would rule that absent dishonesty or mala fides or an exceptional circumstance the decision … to consent to the prosecution of the applicants is not amenable to judicial review. Whilst the passing of the Human Rights Act marked a great advance for our criminal justice system it is in my view vitally important that, so far as the courts concerned, its application in our law should take place in an orderly manner which recognises the desirability of all challenges taking place in the criminal trial or on appeal”. Lord Hobhouse was equally trenchant. “If the substance of what it is sought to review is the answer to some issue between the prosecution and defence arising during a trial on indictment, that issue may not be made the subject of judicial review proceedings.” R (E) v DPP [2012] 1 Cr. App. R 6 is for the reasons set out in paragraph [85] wholly exceptional: if E’s case had stood alone judicial review would not have provided an appropriate remedy. 83. There is, however a much more fundamental issue involved than the correct form of process. It is elementary, but it has become necessary to emphasise, that Guidance issued by the Director of Public Prosecutions does not and, as a matter of law cannot, create any immunity or defence. The guidance and any policy documents publicly reflect the considerations which, in an individual case of the kind under consideration, are considered to be relevant to the exercise of the prosecutorial discretion not to bring an individual case to trial notwithstanding admissible evidence which would otherwise justify a prosecution. If, however, this exercise has been conscientiously undertaken, the sole question for the court is whether the offence has been committed. It is not the function of the court to substitute its own view for that of the Crown about whether there should be a prosecution. The well known general observations of Lord Salmon in DPP v Humphrys [1977] AC 1 , at 46, apply here as in any other case of suggested abuse of process. “I respectfully agree … that a judge has not and should not appear to have any responsibility for the institution of prosecutions, nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to invervene.” The court is not powerless. In an appropriate case an order for absolute or conditional discharge will convey its distinct message. 84. Grounds for a stay on the basis of oppression or misconduct are exemplified in ex parte Bennett [2994] 1 AC 42, Mullen [2000] QB 520 and Early [2003] 1 Cr. App. R 19 . Occasionally, too, the exercise of this jurisdiction may be justified in a case where the prosecution constitutes an infringement of this country’s international obligations (see, for example Asfaw [2008] 1 AC 1061 (where the international obligation was reflected in statute) and LM and Others [2010] EWCA Crim. 2327 , (subject to the qualifications in paragraphs [13]. [19] and [21]). In summary, when it is sought to advance an argument for a stay by reference to policy or guidance issued by the Director of Public Prosecutions, by way of emphasis it is worth repeating, first, that the decision whether to prosecute or not must always be made by the Crown Prosecution Service and not the court. The court does not make prosecutorial decisions. Second, provided there is evidence from which the jury may properly convict, it can only be in the rarest circumstances that the prosecution may be required to justify the decision to prosecute. Third, the decision whether or not to prosecute in most cases requires a judgment to be made about a multiplicity of interlocking circumstances. Therefore even if it can be shown that in one respect or another, part or parts of the relevant guidance or policy have not been adhered to, it does not follow that there was an abuse of process. Indeed, it remains open to the prosecution in an individual case, for good reason, to disapply its own policy or guidance. 85. A further aspect of the trend currently under discussion is exemplified by Mr Quinn’s submissions in this appeal. In essence, his argument is that if everyone involved in the case had behaved differently, then the appellant would or might not have been prosecuted at all. In short, in the present case, the overall effect if all those concerned, fulfilling their different responsibilities, had behaved differently would have been the discontinuance of the prosecution. However the unavoidable reality is that the discretion whether to prosecute or not is exercised, and can only be exercised by the CPS on the basis of the information available to it. After conviction it is unrealistic for fresh legal advisors to attempt to reconstruct a different series of facts or events which might have led the CPS to reach a different decision, or on that basis, to require the CPS to re-examine what the decision might have been if a series of hypothetical but different facts had been in contemplation at the time when the decision to prosecute was taken, or the defendant was convicted. 86. Miss Levitt does not accept that any contravention of prosecutorial policy or guidance in existence at the time when the appellant was convicted has been established. In short, she rejects the suggestion that there was some unreasonable disregard for or unjustified or inexplicable disapplication of existing prosecutorial policy. We agree. A prosecution which did not constitute an abuse of process at the date of conviction cannot acquire that characteristic, on the basis of new or amended prosecutorial guidance or policy subsequently issued. 87. In the end, the final submission comes to the proposition that it is somehow not fair for the appellant to remain convicted. Basing herself on the observations of the DPP in the aftermath of the successful appeal against sentence, and the consequent issue of new or amended policy guidance for use in cases of this kind, Miss Levitt adopted a neutral approach to it. The problem can be readily understood. The principles relating to abuse of process have not extended to, and it would be surprising if they had extended to, enabling this court to quash a conviction on a broad, somewhat nebulous basis of unfairness where the conviction, following due process, is in every respect safe. If so, it cannot be quashed. 88. The reality of this case is that the appellant was undoubtedly guilty of a serious crime, from which police officers did all they reasonably could to dissuade her. Compassion for her position, and indeed for any woman in the same or a similar position, should have produced a non-custodial sentence. That is why this court acted speedily to quash the custodial sentence and replace it with a community order which would offer practical assistance to the appellant in the immediate aftermath of her release from prison. The court also expressed itself in clear and direct language, which was immediately considered by the Director of Public Prosecutions, who has now issued fresh guidance about how cases involving false retractions of true allegations by vulnerable defendants will be addressed in the future. All that acknowledged, we cannot dispense with or suspend the statute, or grant ourselves an extra statutory jurisdiction. Accordingly, we are not entitled to interfere with this conviction. The appeal must be dismissed.
{"ConvCourtName": ["Mold Crown Court"], "ConvictPleaDate": ["15th October 2010"], "ConvictOffence": ["acts tending and intended to pervert the course of public justice"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["plea of guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Mold Crown Court"], "Sentence": ["8 months imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["her"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["entry into her home"], "OffMentalOffence": ["post traumatic stress disorder"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["police to withdraw her complaint"], "DefEvidTypeTrial": ["witnesses", "consultant forensic clinical psychologist"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["vulnerable"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against conviction"], "AppealGround": ["the conviction should be regarded as unsafe"], "SentGuideWhich": ["section 3 of the Homicide Act 1957"], "AppealOutcome": ["appeal must be dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["All that acknowledged, we cannot dispense with or suspend the statute, or grant ourselves an extra statutory jurisdiction. Accordingly, we are not entitled to interfere"]}
{"ConvCourtName": ["Mold Crown Court"], "ConvictPleaDate": ["2010-10-15"], "ConvictOffence": ["acts tending and intended to pervert the course of public justice"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Mold Crown Court"], "Sentence": ["8 months imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Female"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Had mental health problems"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Police evidence"], "DefEvidTypeTrial": ["consultant forensic clinical psychologist", "witnesses"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["vulnerable"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against conviction"], "AppealGround": ["the conviction should be regarded as unsafe"], "SentGuideWhich": ["section 3 of the Homicide Act 1957"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["All that acknowledged, we cannot dispense with or suspend the statute, or grant ourselves an extra statutory jurisdiction. Accordingly, we are not entitled to interfere"]}
139
Neutral Citation Number: [2008] EWCA Crim 1662 No: 2008/02057/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 16th May 2008 B E F O R E: MR JUSTICE DAVID CLARKE MR JUSTICE MACDUFF - - - - - - - - - - - - - R E G I N A -v- WILL SMALL - - - - - - - - - - - - - Computer Aided Transcript of the Palantype Notes of Wordwave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - Mr AJ Ailes appeared on behalf of the Appellant Miss A Brown appeared on behalf of the Crown - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE MACDUFF: This is an appeal against sentence brought with the leave of the single judge. The single judge also directed that the appeal should be expedited. 2. The appellant, Will Darren Small, now aged 30 years, was sentenced on 28th March 2008 to a total of 30 months' imprisonment by His Honour Judge Boggis QC, sitting at Southampton Crown Court, on two counts of causing cruelty to a child. A third count (count 2 on the indictment) was ordered to lie on the file. 3. The background facts are these. The appellant, who is a man of previously good character, started to cohabit with his ex-partner in 2004. She is the mother of four children, one of whom was B, then aged 5 years. During 2005 and 2006 it was noted at school that B, from being a relatively happy, smiling child, had become tearful and unsettled. In due course, the staff became concerned, not only at the change in the child but also because they became aware of other home issues. Thus it was that they contacted the police with those concerns. The appellant was then arrested. 4. It was clear that the child was being subjected to a particularly harsh regime of discipline. She was, as the appellant was to admit, treated differently from her siblings. She was sent to her room for long periods, sometimes for day following day, albeit that she was not locked in, was free to leave her room to get drinks, to attend meals, to visit the lavatory and, of course, to go to school. Her different treatment appears to have resulted substantially from the fact that she was perceived to behave differently and in a more challenging way than her siblings. There is nothing to suggest that they would have fared any better if they had been behaving in the same way as B. 5. Sending to the bedroom was a regular form of discipline in the household, jointly imposed, and this was acknowledged by both the appellant and the mother. I may record at this stage that the mother was arraigned on the first count of the indictment. She pleaded not guilty and the count was left on the file not to be proceeded with. 6. Count 1, on a three-charge indictment, covered a period from 2006 to March 2007 and in the broadest terms was based upon what was referred to as an inappropriate regime of discipline. During this period, B was sent to her room for long periods. The appellant regularly shouted at her and made her feel unwanted. There is no doubt that she was an unhappy child and was distressed by the treatment meted out to her. Perhaps the most hurtful threat was that she would be taken into care. 7. Save for one incident, there was no violence used upon her. That incident was the subject of count 3. After B had shouted at her sister, the appellant put masking tape over her mouth. This he admitted. He also expressed regret for that action. 8. We should mention other matters. The appellant had no children of his own. He had no previous parenting experience. He put forward a basis of plea which was accepted by the prosecution and by the judge. We have been able to read that basis of plea. 9. In his very full sentencing remarks, the learned judge expressed the view that the appellant had gone out of his way to target B for a regime of ill-treatment and bullying. He used the word “bully” several times in the course of his sentencing remarks. The Defendant had caused B mental distress and had caused in her a change of personality. The judge described the placing of sticky tape over her mouth as unforgivable. He noted the basis of plea, namely that the defendant had instituted a regime of overzealous discipline to deal with a difficult child, but the judge dismissed as out of hand that the appellant’s actions could be ascribed to B's own behaviour. That her siblings were well turned out and well treated only pointed to the conclusion that B had been singled out for what the judge rightly described as disgraceful treatment. 10. The judge acknowledged that the appellant was not a dangerous offender and should be given some, though limited, credit for his pleas. There were aggravating features: the targeting for treatment which was different from that given to her siblings, coupled with the threat to have her sent into care. 11. It has been submitted before us that the sentence was manifestly excessive and that the judge erred in principle. This is a proposition with which we agree. It seems to us to be clear that the judge was not loyal to the basis of plea, and that he reached conclusions that he was not justified in reaching. 12. What the judge failed to have in mind were the following important matters. First, there was undisputed evidence that the appellant had made attempts to obtain assistance from the NHS, from the school and from the social services. On one occasion, he telephoned NHS Child Guidance, requesting that a pre-arranged appointment be brought forward. There is much evidence that the appellant was confused, and acknowledged that he did not know how to react to B’s bad behaviour. There is much evidence that he was requesting help from the appropriate services. Having read all the papers carefully, including the pre-sentence report, we have to say that we agree with the submission of counsel for the appellant that the Defendant was presenting as an inexperienced parent, towards the end of his tether, seeking assistance. He was perplexed at how to cope with this child. He saw her as an ill-behaved child. He did not know how to deal with her. Neither did the mother. And so they resorted to punishment and exclusion, rather than inclusion and encouragement. Sadly, the more punishment she received, the worse she got. And so the spiral continued with more of the same. We repeat; these were the actions of a bewildered parent, doing what he mistakenly believed to be the right thing. These were not the actions of a gratuitous bully. 13. The basis of plea included this. When B was behaving badly, as she undoubtedly did from time to time for whatever reason, she was sent to her room. This was normally between evening mealtime and bedtime. She came out of the room at will for the lavatory and she went to school. She was given the opportunity to behave better and to rejoin the family. The learned judge paid lip service to the basis of plea, but it is clear that he did not accept it and formed his own judgment based, in part, upon the hectoring tone adopted by the appellant in letters to the school. 14. Nor, in our judgment, was the judge entitled to observe, as he did on more than one occasion, that her unhappiness and distress were caused by the treatment given to her by the appellant. The implication in these observations is that her unhappiness and distress were wholly the result of this treatment. Of course, the inappropriate way in which she was punished undoubtedly made a significant contribution, but there were clearly many more complex issues lying behind the child's disturbed behaviour. There were complicated family dynamics at work, with sibling rivalries, step-sibling rivalries and, particularly, an emotional reaction in a small girl missing her own father, who had vanished from her life. 15. What happened here, and this seems to have eluded the learned judge, is that the appellant (as well as the mother) reacted to B's behaviour, caused in the first place by her underlying unhappiness, by sending her to her room. This exacerbated the distress, and the whole thing, as we have previously observed, spiralled out of control. 16. A judgment that the appellant was a gratuitous bully, who targeted this unhappy little girl for no reason, was to misunderstand the position. It seems to have been understood by everybody, except the learned judge, that this little girl's unhappiness, almost certainly triggered by the change in family circumstances, caused her to behave in a challenging way. What she required was love and inclusion, not discipline and isolation. The carrot rather than the stick. Sadly, the appellant and the mother failed to appreciate this. Not through wilful wickedness, but because of inherent parenting inadequacies. They saw it as a discipline problem and gave her more of the same. This, we repeat, was not the response of a bully, but the response of a bewildered man, and we may say bewildered woman, not endowed with adequate parenting skills. This is borne out in our view by the fact that in the earliest days the appellant and B had a good relationship. 17. We mention one other matter. There was reference to sentencing guidelines. The judge took the view that this case fell squarely within the second of four categories of seriousness, whereas it was submitted on the appellant's behalf that the case was within the lowest category. A problem with the guidelines, it seems to us, is that the terms “neglect” and “ill-treatment” can include many different types of behaviour. What is clear in this case is that the appellant was not in any way abusing the child, either by physical violence or deprivation of food, clothing, shelter or attendance. Our courts, sadly, are used to dealing with such cases; cases which are at the more serious end of the range. If this case is truly in the second category of seriousness, we can only say that the dividing lines are in strange positions. We do not regard this as a case within that category. 18. Even if the case were deemed to fall into a more serious category, we are firmly of the view that there were not the aggravating features, which the judge purported to find. There were very many mitigating features. 19. In a balanced and well-argued pre-sentence report, a recommendation was made for a community disposal with a supervision requirement. There was a low risk of re-offending and there were a number of pointers against imprisonment. The learned judge appears to have paid scant regard to this report. 20. For the sake of completeness, for the purpose of this judgment, we note that the appellant has now left the household and will return to live with his mother, well away from this family. 21. We consider, as did the single judge, that the learned sentencing judge did not give due weight to the mitigating factors. We are of the view that this sentence was manifestly and grossly excessive. We would allow the appeal and substitute our own sentence of a community order with a supervision requirement of 2 years, noting that that will include a good parenting course. 22. MR JUSTICE DAVID CLARKE: Thank you very much. 23. Will Small, just stand up. Have you heard what my Lord has said? 24. THE APPELLANT: I have. 25. MR JUSTICE DAVID CLARKE: Do you understand that a community order makes a very strong requirement of full co-operation and commitment on your part? 26. THE APPELLANT: I do. 27. MR JUSTICE DAVID CLARKE: You will have explained to you, if you do not know already, what the consequences would be of any breach or failure of co-operation; do you understand that? 28. THE APPELLANT: Yes, I do. 29. MR JUSTICE DAVID CLARKE: Very well. 30. I would like him to be seen by the liaison probation officer. 31. THE ASSOCIATE: Is that concurrent on both counts? 32. MR JUSTICE DAVID CLARKE: On both counts. 33. MR JUSTICE MACDUFF: Yes, on both counts. 34. THE ASSOCIATE: Would your Lordship be minded to confirm the press restriction in relation to identifying the complainant in this case? 35. MR JUSTICE DAVID CLARKE: An order was made, I think Mr Ailes and Miss Brown, in the lower court that there was no restriction on publication of the appellant's own name but there should be no identification relating to the children. 36. MR AILES: My Lord, that is right. 37. MR JUSTICE DAVID CLARKE: Should the same follow now? There is no reason not to, is there? 38. MISS BROWN: Yes, there is no reason not to. 39. MR AILES: There is no reason not to. 40. MR JUSTICE DAVID CLARKE: There is no reason why the appellant's own identity should be protected? I do not think we would have power to do it. 41. MR AILES: Except in so far as it might identify the child. 42. MR JUSTICE DAVID CLARKE: I take it some publicity may have been given to this case at the time. 43. MR AILES: In the Salisbury local papers, I think it was. 44. MR JUSTICE DAVID CLARKE: In which event, this result may well be reported likewise. 45. MR AILES: My Lord, yes. 46. MR JUSTICE DAVID CLARKE: Very well. The position remains the same. We confirm that no identification should be made of the child's name or anything which would identify her, but that is not prohibition on naming the appellant himself. Thank you.
{"ConvCourtName": ["Southampton Crown Court,"], "ConvictPleaDate": ["28th March 2008"], "ConvictOffence": ["causing cruelty to a child."], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["basis of plea which was accepted"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Southampton Crown Court,"], "Sentence": ["community order with a supervision requirement of 2 years", "total of 30 months' imprisonment"], "SentServe": ["concurrent"], "WhatAncillary": ["community order with a supervision requirement"], "OffSex": ["man"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["discipline in the household"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["Defendant was presenting as an inexperienced parent"], "VictimType": ["B, then aged 5"], "VicNum": ["B, then aged 5"], "VicSex": ["She was,"], "VicAgeOffence": ["B, then aged 5"], "VicJobOffence": ["school"], "VicHomeOffence": ["discipline in the household"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["clear that the child was being subjected to a particularly harsh regime"], "DefEvidTypeTrial": ["evidence that the appellant had made attempts to obtain assistance from the NHS"], "PreSentReport": ["low risk of re-offending"], "AggFactSent": ["threat to have her sent into care.", "target B for a regime"], "MitFactSent": ["previously good character,"], "VicImpactStatement": ["data not available"], "Appellant": ["The appellant, Will Darren Small,"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["sentence was manifestly excessive"], "AppealGround": ["the sentence was manifestly excessive and that the judge erred in principle.", "the judge was not loyal to the basis of plea, and that he reached conclusions that he was not justified in reaching."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["allow the appeal and substitute our own sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["Southampton Crown Court,"], "ConvictPleaDate": ["2008-03-28"], "ConvictOffence": ["causing cruelty to a child."], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes", "Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Southampton Crown Court"], "Sentence": ["community order with a supervision requirement of 2 years", "total of 30 months' imprisonment"], "SentServe": ["Concurrent"], "WhatAncillary": ["community order with a supervision requirement"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1 of 1"], "VicSex": ["All Female"], "VicAgeOffence": ["5"], "VicJobOffence": ["Child"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Other"], "VicIntoxOffence": ["No"], "ProsEvidTypeTrial": ["Eye-witness testimony"], "DefEvidTypeTrial": ["evidence that the appellant had made attempts to obtain assistance from the NHS"], "PreSentReport": ["Low risk of reoffending"], "AggFactSent": ["target B for a regime", "threat to have her sent into care."], "MitFactSent": ["previously good character,"], "VicImpactStatement": ["No"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Sentence (is unduly excessive)"], "AppealGround": ["the sentence was manifestly excessive and that the judge erred in principle.", "the judge was not loyal to the basis of plea, and that he reached conclusions that he was not justified in reaching."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
253
Neutral Citation Number: [2016] EWCA Crim 2017 No: 201602002/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 18th November 2016 B e f o r e : MR JUSTICE SINGH RECORDER OF WESTMINISTER (HIS HONOUR JUDGE McCREATH) (Sitting as a Judge of the CACD) R E G I N A v GARY LEE OLIVER Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) Mr T Cornberg appeared on behalf of the Applicant The Crown was not present and was unrepresented J U D G M E N T (Approved) Crown copyright© 1. RECORDER OF WESTMINSTER: On 31st March in the Crown Court Newcastle-upon-Tyne, the appellant pleaded guilty to four counts of driving whilst disqualified and two counts of dangerous driving. He was sentenced to a total of 24 months' imprisonment. 2. The single judge referred the case to the Full Court on the limited basis that the judge fell into error by imposing a period of disqualification from driving which was expressed as taking effect from the date of the appellant's release from custody. A further technical error was made in that the judge ordered that the appellant should take and pass the extended driving test in circumstances where he was already subject to such an order. We will return to these matters later in this judgment. 3. At all material times the appellant was a disqualified driver. On 11th September 2015 he was seen by police officers driving a car on a road in Ashington. He saw the police officers and drove off. This was count 1 on the indictment, an offence of driving whilst disqualified. 4. On the following day he was seen again driving the same car by other police officers who elected to follow him. They tried to block his route but the applicant evaded them by driving over a pavement where pedestrians were standing outside a public house and thereafter driving through two sets of red traffic lights and over a roundabout at something like twice the permitted speed limit of 30 miles per hour. He succeeded in avoiding arrest until 19th September when he was arrested and released on bail. These offences found their way onto the indictment as counts 2 and 3, counts of driving while disqualified and dangerous driving. 5. On 13th November 2015 he was again seen driving a car by police officers, who tried to stop him. He drove off at high speed, overtaking other vehicles dangerously and narrowly missing oncoming traffic. He abandoned the car and made his escape. Later that evening he was seen behind the wheel of another car which he admitted having driven to a limited extent. These offences were counts 4 and 6, driving whilst disqualified and count 5, dangerous driving. He was sentenced on count 1 to 3 months' imprisonment to run consecutively to the other sentences; on counts 2 and 4 he was sentenced to concurrent terms of 2 months' imprisonment; counts 3 and 5 he was sentenced to 10 months' imprisonment consecutive to each other and to the other terms and on count 6, to a further sentence of 1 months' imprisonment, consecutive. He was also disqualified from driving for 4 years. The judge ordered the disqualification to commence on his release from custody. It is clear from her sentencing remarks that she intended to pass a sentence compliant with section 35 A of the Road Traffic Offenders Act 1988 . For reasons we will return to later she fell into error in the manner in which she did it. 6. The appellant was born in October 1984. He has a lamentable record of offending, in particular in relation to offences involving driving. He has numerous convictions for driving whilst disqualified and associated offences together with two previous convictions for dangerous driving. There are other convictions for offences of less relevance to the matters before the court on this appeal. 7. The grounds of appeal invite the court to show mercy to the appellant in the light of his current medical condition. In the summer of 2015 he was the subject of an attack involving chemicals being thrown into his face which caused him to lose his sight in one eye and some damage to the other. 8. It is submitted that his time in custody has been made the worse because of the significant disability which these injuries have caused him thus increasing the impact of the sentence upon him. This court is not without sympathy for him. The court's sympathy is that much the less in the light of the unfortunate fact that these injuries predated the offences which brought him before the court and it follows when he committed the offences of dangerous driving, both of which caused a real risk of injury or worse to innocent passers-by, he had significantly defective vision. In these particular circumstances it is difficult to see how the interests of justice will be well served by invoking the court's mercy. 9. Given the nature of these offences, the repetition of them whilst on bail and the appellant's appalling driving history, it is impossible to say that sentences passed upon him in their totality were in any sense wrong in principle or manifestly excessive. 10. The statutory provisions contained within section 35 of the Road Traffic Offenders Act 1988 , as amended, are not easy to construe. This court has given helpful guidance in provisions to sentences in the case of R v Needham [2016] EWCA Crim 455 . The judgment in that case however was given on 28th April 2016, about 4 weeks after the sentence was passed in the case before us today. 11. This is a case to which the provisions of section 35 A apply. The court clearly intended to impose a disqualification to which these provisions applied as well as to impose a custodial term for the same offences. In those circumstances the court was obliged to pass what is described as a "discretionary disqualification period" as well as "an appropriate extension period" (see section 35 A(2)). 12. In the ordinary way this creates no problem because the court in most cases needs only to consider what the appropriate disqualification is and then to add an uplift of one-half of the custodial term thereby ensuring the offender does not avoid consequences wholly or in part of a disqualification by reason of being in custody. 13. Matters however are more complicated where the offender has been remanded in custody prior to sentence. In those cases the imposition of a discretionary disqualification period which does not take account of the time spent on remand would be likely to lead to the offender being disqualified for longer than would apply in the case of an offender who had not been remanded in custody. 14. The court in Needham suggested that: i. "... it is open to the court to avoid such injustice by permitting a court to take into account a significant remand period in determining the appropriate discretionary period..." 15. In this case, if the appellant had not been in custody, the appropriate discretionary period would have been 4 years and the extension period 12 months, thus leading to a disqualification for 5 years. He had however been in custody on remand for four-and-a-half months so that the remaining period which he would have to serve in custody after sentence would be seven-and-a-half months. Arithmetical exactness will not always be possible in cases such as this and it would not be unreasonable, in all of the circumstances of this case, to round down the seven-and-a-half months to 6 months for the purpose of calculating the overall disqualification period. 16. Giving broad effect to the intention of the sentencing judge to impose a richly merited disqualification effective for 4 years or thereabouts would result in an overall disqualification of 4 years and 6 months, made up as a discretionary disqualification of 3 years and 6 months and an extension period of 12 months, that is to say one-half of the custodial term. By this means the appellant would not suffer a disadvantage and the provisions of the statute would be properly complied with. Accordingly we quash the order of disqualification made by the sentencing judge and substitute for it a disqualification of 4 years and 6 months. The disqualification which he will now be subject to will last for four-and-a-half years from sentence and crucially 3 years ten-and-a-half months from release rather than the 4 years as expressed by the judge. In those circumstances the appellant will not be more severely dealt with on appeal than he was dealt with by the court below. 17. Section 36(7) of the Road Traffic Offenders Act 1988 provides that where a person is disqualified until he passes the extended driving test: "(b)a court shall not make a further order under this section while he is so disqualified." 18. This appellant was made subject to an order of this kind on 5th December 2003 and again, probably unlawfully in the light of the 2003 order, to another on 19th December 2012. He has never taken nor passed the extended driving test. Accordingly the order made by the judge in the instant case was unlawful and falls to be quashed by this court. 19. To the extent of altering the terms of the disqualification and of quashing the order requiring him to take the extended driving test, and to that extent only, we grant leave and allow this appeal.
{"ConvCourtName": ["Crown Court Newcastle-upon-Tyne"], "ConvictPleaDate": ["31st March"], "ConvictOffence": ["dangerous driving", "driving whilst disqualified"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court Newcastle-upon-Tyne"], "Sentence": ["24 months' imprisonment"], "SentServe": ["consecutive", "concurrent terms"], "WhatAncillary": ["disqualified from driving for 4 years"], "OffSex": ["He"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["seen by police officer"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["record of offending", "appellant was a disqualified driver"], "MitFactSent": ["current medical condition"], "VicImpactStatement": ["data not available"], "Appellant": ["appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["order made by the judge"], "AppealGround": ["the judge fell into error by imposing a period of disqualification", "technical error was made in that the judge ordered that the appellant should take and pass the extended driving test"], "SentGuideWhich": ["35A of the Road Traffic Offenders Act 1988", "Section 36(7) of the Road Traffic Offenders Act 1988"], "AppealOutcome": ["To the extent of altering the terms of the disqualification and of quashing the order requiring him to take the extended driving test"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["the order made by the judge in the instant case was unlawful and falls to be quashed by this court."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["Crown Court Newcastle-Upon-Tyne"], "ConvictPleaDate": ["1900-03-31"], "ConvictOffence": ["dangerous driving", "driving whilst disqualified"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court Newcastle-Upon-Tyne"], "Sentence": ["24 months' imprisonment"], "SentServe": ["Combination"], "WhatAncillary": ["disqualified from driving for 4 years"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Police evidence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["record of offending", "appellant was a disqualified driver"], "MitFactSent": ["current medical condition"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Sentence"], "AppealGround": ["technical error was made in that the judge ordered that the appellant should take and pass the extended driving test", "the judge fell into error by imposing a period of disqualification"], "SentGuideWhich": ["Section 36(7) of the Road Traffic Offenders Act 1988", "35A of the Road Traffic Offenders Act 1988"], "AppealOutcome": ["To the extent of altering the terms of the disqualification and of quashing the order requiring him to take the extended driving test"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["the order made by the judge in the instant case was unlawful and falls to be quashed by this court."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
303
No: 200806082/A9 Neutral Citation Number: [2008] EWCA Crim 3188 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 19th December 2008 B e f o r e : LORD JUSTICE SCOTT BAKER MRS JUSTICE RAFFERTY DBE HIS HONOUR JUDGE STEPHENS QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NO 68 OF 2008 (OWEN ANTHONY MYRIE) - - - - - - - - - - - - - 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 L Mably appeared on behalf of the Attorney General Mr G Smith appeared on behalf of the Offender - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE SCOTT BAKER: The Attorney-General seeks leave to refer a sentence of 30 months' imprisonment imposed on Owen Anthony Myrie to this court as unduly lenient. We grant that leave. 2. The offender, Myrie, is aged 39 and pleaded guilty in the Crown Court at Croydon to a single count of arson being reckless as to whether life would be endangered, contrary to section 1 of the Criminal Damage Act 1971 . The sentence was imposed by Her Honour Judge Downing. 3. The facts of the case are these. In the early hours of Saturday 14 June 2008 the offender started a fire at the address of a man called Norbert John. The offender poured a flammable liquid, probably petrol, onto the outside of the house, including on the front door and then lit the liquid and a mattress located below the living room window. He then lit the area with a naked flame. A neighbour saw the resulting fire and managed to raise the alarm, waking Mr John and his family, thereby enabling them to leave the house safely. There were two children in the house and the neighbours fortunately were able to get them out as well. 4. The fire brigade arrived and extinguished the fire, preventing it from spreading to the inside of the house. The offender committed the offence as an act of revenge following an altercation with Mr John a few hours before. 5. In a little more detail, what happened was this. At about 9 o'clock on the previous evening, Friday 13 June, the offender, who was driving a white van, was involved in a minor road traffic accident near Croydon with a car driven by Mr John. Matters became heated by the roadside. The offender produced a baseball bat. Mr John took out a Stanley knife from his car and the two men became involved in a scuffle. The offender it seems received an injury which caused some bleeding and Mr John then drove away from the immediate scene. The police arrived and spoke to the offender. A second police unit found and spoke to Mr John, who was still in the vicinity of the incident. The police decided to treat the incident as a damage only accident and for the purpose of facilitating insurance claims ensured that the details of the parties were exchanged. It was by this means that the offender obtained details of Mr John's address in Selsdon. On receipt of the information the offender told a police officer: "I'm telling you I'm going to get my revenge for this." The officer warned him against doing anything stupid. 6. Later that night, at some time after 1 o'clock the following morning, a neighbour of Mr John's heard a loud explosion and the sound of breaking glass. He looked and saw flames at the door of Mr John's mid terraced house. He went to the house and raised the alarm, banging and shouting for the occupants to get out. Inside were Mr John and his wife who were asleep on the sofa in the living room and their two children aged seven and 15. The alarm woke Mr John. He looked out of the window and saw flames at the front of his house. The children were taken outside to safety and Mr John and his wife also left. 7. Mr John went outside and by throwing buckets of water over the flames managed to extinguish the fire at the front door. At that moment the fire brigade arrived and extinguished the fire at the window. It was noticed that there was a strong smell of petrol at the front of the house. Officers spoke to a number of witnesses and established that a man had been seen running from the front door and then driving off in a white van. 8. A fire investigator visited the scene later in order to establish the cause of the fire. She found that the damage, which was estimated at some £7,000, included substantial damage to the front door and that the charring was confined to the outside of the house. She concluded that the fire had been started by the introduction of a flammable liquid to the outside of the house and combustible material, namely the mattress below the living room window. The area had then been ignited with a naked flame. The mattress had been left outside by Mr John some time before. 9. On the afternoon of 14th June the offender was arrested. He was asked about his van. On looking outside he said it was not in the street where he had left it and it must have been stolen. However, the police found a set of keys in the offender's possession and shortly afterwards the van was found parked nearby. When the doors were opened there was a strong smell of petrol immediately apparent. A carton containing what appeared to be petrol was found in the back. 10. The offender was interviewed under caution. He denied the offence and was charged on 15th June. 11. He has a previous conviction for handling stolen goods, in 1989, and three road traffic offences, for which he received fines in total of around £250. For sentencing purposes, he was a man of previous good character. 12. The pre-sentence report was available to the judge and this concluded that the offender had expressed remorse for his actions and demonstrated an understanding of how his conduct had affected others. The report assessed the likelihood of him committing further offences of a violent nature as medium. 13. There was also a psychiatric report which concluded that there were no relevant mental issues in the offender's case and that the likelihood of re-offending was low. 14. Mr Mably, who has appeared for the Attorney-General, has helpfully drawn the court's attention to the aggravating and mitigating features in this case. The aggravating features are, first, that the offence was committed as a premeditated act of revenge. In our judgment, this is a significant feature in an arson case. There was in the present case the preplanning to the extent that it was necessary, first, to go away and obtain the petrol. Secondly, the offence was committed at night and accordingly at a time when it would have been obvious that the occupants of the house were likely to be asleep inside, as indeed they were, including two children. Third, the property was a mid terraced house. That plainly means that there is an increased risk of the fire spreading to adjoining properties. Fourth, the fire was started at the main entry and exit point of the house, the front door. Fifth, having started the fire the offender left the scene and did nothing to raise the alarm. 15. As to the mitigating features, the offender pleaded guilty and was entitled to full credit for that. The fire was started outside the property rather than inside and in the event did not spread to the inside of the house. The offender is a man of previous good character and it is plain that there was substantial mitigation in that he had given long service to the public as a bus driver and there were many positive features to his life. Finally, this was a case in which not only was there a plea of guilty, but there was genuine remorse on the part of the offender. 16. The judge's attention does not appear to have been drawn to any of the relevant authorities on sentence in arson cases. This, in our judgment, is most regrettable, not least because sentencing in arson cases is very often not by any means an easy exercise. Mr Mably, on the other hand, has been able to draw this court's attention to all of the authorities and that has been of considerable assistance to us. 17. We should perhaps begin by making the possibly obvious observation that arson cases, like many other cases, are very much fact specific. But there are certain features that do arise from the authorities which it is particularly important to bear in mind. 18. The first case to which we were referred is Attorney-General Reference No 1 of 1997 (Glen Wheeler) [1998] 1 Cr App R(S) 54. In that case the offender pleaded guilty to arson being reckless as to whether life would be endangered. The nature of the offence is important, because arson being reckless as to whether life would be endangered comes one stage below, in terms of gravity, arson with the specific intent to cause danger to life. In that case the offender started a fire in a ground floor flat by setting fire to a cushion on a settee whilst the occupant was in the flat asleep in bed. He knew that the occupant, Mr Perry, had been drinking and must also therefore have known that he might fall asleep. A probation order was varied to a sentence of four-and-a-half years' imprisonment following a plea of guilty. That was a case where McCowan LJ said at page 56 of the report: "We consider that the right sentence in these cases, and certainly the right sentence in the present case, would have been one of six years..." We repeat, that that was a case where there was a plea of guilty and the court went from 6 years to four-and-a-half years on the basis of double jeopardy. That was a substantial discount, we would observe, because it was a case where the offender was not already in custody. 19. The next case is R v Gerrard [2004] 2 Cr App R(S) 11, at page 47. There the offence was again arson being reckless whether life would be endangered. In this instance by throwing a petrol bomb at the front door of a house occupied by a person who had given evidence against the appellant. A sentence of 7 years, following a plea of guilty, was reduced to 6 years, with 12 months consecutive for taking revenge against a witness. There are a number of features about the case of Gerrard that are similar to the present case, not least that that was a case involving an act of revenge. 20. Attorney-General's Reference No 23 of 2001 (R v Fielder) [2001] 2 Cr App R(S) 514, again involved an offence of reckless arson. In that case a sentence of three-and-a-half years was increased to 5 years. That was a case in which the offender knew that the premises were unoccupied. The sentence was passed, albeit with some doubt on the part of the appeal court on the basis that it was being treated as a spur of the moment offence. 21. Then comes the case of R v O'Brien [2003] 2 Cr App R(S) 99, at page 599. Another case of reckless arson, this time following a conviction, where 10 years was reduced to 6 years. The premises in that case, however, were unoccupied. The offence was premeditated and the damage was caused inside the premises. 22. Then Attorney-General's Reference No 50 of 2005 (R v Andrews) [2006] 1 Cr App R(S) 82, at page 473. That was a case of reckless arson, committed by somebody who was aware that the hostel to which he set fire was empty. A sentence of 3 years was imposed following conviction, the court saying that it should be increased to four-and-a-half years and that the appropriate sentence would have been one of 6 years. 23. Then there is R v Frankham [2007] EWCA Crim 1320 in which Thomas LJ, giving the judgment of the court, said at paragraph 9: "But the cases cited to us relating to the appropriate sentences for offenders who commit arson with intent to endanger life show that the starting point tends to fall in a range of eight to ten years' imprisonment." When we first read this authority we had some doubt as to whether that was the starting point that the judge considered appropriate following a trial, but we think that that must be the case when we look at his observations in the following paragraph and reference to two earlier authorities. 24. Finally, we turn to Attorney-General's Reference No 98 of 2001 (R v Hussain) [2001] EWCA Crim 3068 . That was a reckless arson case. The premises were occupied by the offender's wife and daughter. After a trial lasting five days the offender was convicted. Mance LJ said at paragraph 37, that in that case a sentence of at least (and we emphasise those words "at least") 6 years would have been appropriate on an initial sentencing exercise. Mance LJ sought to distinguish the case from the earlier decision to which we have referred of Wheeler . What happened in this case is that a community rehabilitation order to which the appellant had been sentenced, was increased to a sentence of 4 years' imprisonment. 25. Having given due consideration to all the authorities, it seems to us, in particular following the case of Frankham , that the starting point for arson with intent to endanger life is in the range of eight to 10 years (that would of course be following a trial); and in cases involving reckless arson, we would regard the range as rather below that, but it is apparent to us that the dividing line between the worst cases of reckless arson and the least serious cases of arson with intent to endanger life is a fine one. We are entirely satisfied that the aggravating features of the present case, which we have described, and even after taking into account the various mitigating features to which we have also referred, that this a case that falls at the upper end of offences of reckless arson. 26. We have come to the clear conclusion that the sentence imposed on this offender was in the circumstances unduly lenient. We think that following a plea of guilty, a sentence approaching 6 years would have been appropriate in this case. That indeed takes into account the very substantial mitigation that this offender had. Taking into account the fact that he is being sentenced for the second time, we think that the appropriate sentence with which to replace two-and-a-half years is one of four-and-a-half years' imprisonment. The sentence will be varied accordingly with full credit for all the time spent in custody.
{"ConvCourtName": ["Crown Court at Croydon"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["arson being reckless as to whether life would be endangered"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["time spent in custody."], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Croydon"], "Sentence": ["30 months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["Owen Anthony Myrie"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["he had given long service to the public as a bus driver"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["no relevant mental issues"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["a man called Norbert John"], "VicNum": ["Mr John and his wife who were asleep on the sofa in the living room and their two children aged seven and 15"], "VicSex": ["Mr John and his wife who were asleep on the sofa in the living room and their two children aged seven and 15"], "VicAgeOffence": ["15", "seven"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["house"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["A neighbour saw the resulting fire", "he concluded that the fire had been started by the introduction of a flammable liquid to the outside of the house and combustible material, namely the mattress below the living room window.", "A carton containing what appeared to be petrol was found in the back.", "A fire investigator", "witnesses and established that a man had been seen running from the front door and then driving off in a white van."], "DefEvidTypeTrial": ["On looking outside he said it was not in the street where he had left it and it must have been stolen. However, the police found a set of keys in the offender's possession and shortly afterwards the van was found parked nearby.", "He denied the offence"], "PreSentReport": ["pre-sentence report was available to the judge and this concluded that the offender had expressed remorse for his actions and demonstrated an understanding of how his conduct had affected others. The report assessed the likelihood of him committing further offences of a violent nature as medium."], "AggFactSent": ["an act of revenge", "ncluding two children", "the property was a mid terraced house. That plainly means that there is an increased risk of the fire spreading to adjoining properties", "committed at night and accordingly at a time when it would have been obvious that the occupants of the house were likely to be asleep inside,", "two children in the house", "having started the fire the offender left the scene and did nothing to raise the alarm.", "the fire was started at the main entry and exit point of the house, the front door", "previous conviction for handling stolen goods,", "the damage, which was estimated at some £7,000", "baseball bat", "I'm telling you I'm going to get my revenge for this", "premeditated act of revenge", "preplanning to the extent that it was necessary, first, to go away and obtain the petrol.", "early hours"], "MitFactSent": ["The fire was started outside the property rather than inside and in the event did not spread to the inside of the house.", "he was a man of previous good character.", "he had given long service to the public as a bus driver and there were many positive features to his life.", "genuine remorse on the part of the offender.", "offender pleaded guilty", "offender is a man of previous good character"], "VicImpactStatement": ["data not available"], "Appellant": ["Attorney-General"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["sentence"], "AppealGround": ["unduly lenient."], "SentGuideWhich": ["section 1 of the Criminal Damage Act 1971."], "AppealOutcome": ["Taking into account the fact that he is being sentenced for the second time, we think that the appropriate sentence with which to replace two-and-a-half years is one of four-and-a-half years' imprisonment."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["Crown Court At Croydon"], "ConvictPleaDate": ["Don't know"], "ConvictOffence": ["arson being reckless as to whether life would be endangered"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Croydon"], "Sentence": ["30 months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["Don't know"], "OffSex": ["All Male"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Other"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Stranger"], "VictimType": ["Individual person"], "VicNum": ["4"], "VicSex": ["Mixed"], "VicAgeOffence": ["15", "7"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["A carton containing what appeared to be petrol was found in the back.", "expert witness", "witness testimony"], "DefEvidTypeTrial": ["Offender denies offence", "Offender denies offence"], "PreSentReport": ["Medium risk of reoffending"], "AggFactSent": ["having started the fire the offender left the scene and did nothing to raise the alarm.", "the fire was started at the main entry and exit point of the house, the front door", "the property was a mid terraced house. That plainly means that there is an increased risk of the fire spreading to adjoining properties", "ncluding two children", "committed at night and accordingly at a time when it would have been obvious that the occupants of the house were likely to be asleep inside,", "preplanning to the extent that it was necessary, first, to go away and obtain the petrol.", "premeditated act of revenge", "previous conviction for handling stolen goods,", "the damage, which was estimated at some £7,000", "I'm telling you I'm going to get my revenge for this", "weapon", "an act of revenge", "two children in the house", "early hours"], "MitFactSent": ["genuine remorse on the part of the offender.", "he had given long service to the public as a bus driver and there were many positive features to his life.", "offender is a man of previous good character", "The fire was started outside the property rather than inside and in the event did not spread to the inside of the house.", "offender pleaded guilty", "he was a man of previous good character."], "VicImpactStatement": ["data not available"], "Appellant": ["Attorney General"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["sentence"], "AppealGround": ["unduly lenient."], "SentGuideWhich": ["section 1 of the Criminal Damage Act 1971."], "AppealOutcome": ["Allowed&Sentence Replaced by More Excessive Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
528
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.
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{"ConvCourtName": ["Crown Court At Durham"], "ConvictPleaDate": ["2014-04-25"], "ConvictOffence": ["to be in contempt of court"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Durham"], "Sentence": ["ordered to pay a fine of £500"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Documentation"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Sentence"], "AppealGround": ["his conduct whilst instructed to act as defence counsel at a preliminary hearing"], "SentGuideWhich": ["s. 13 of the Administration of Justice Act 1960"], "AppealOutcome": ["allow the appeal and set aside this finding of contempt"], "ReasonQuashConv": ["For want of procedural regularity, we allow the appeal"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
59
Neutral Citation Number: [2017] EWCA Crim 1134 Case No: 201700226 B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday 13 July 2017 B e f o r e : LADY JUSTICE RAFFERTY DBE MR JUSTICE SWEENEY HIS HONOUR JUDGE ZEIDMAN QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - R E G I N A MARCIN DARIUSZ PURLIS - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr R Jenkins appeared on behalf of the Appellant Miss R Beckett appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. LADY JUSTICE RAFFERTY: On 16th December 2016 in the Crown Court sitting at Lewes Marcin Dariusz Purlis, 36, was convicted of robbery and sentenced to 12 years' imprisonment. By leave of the single judge he challenges the safety of his conviction. 2. On 9th July 2015 at about 10 am an armed robbery outside a branch of HSBC in Eastbourne saw the security guard Mr Jackman robbed of a cash box by a man who used a hammer repeatedly to strike him to his torso and his legs. The robber took the empty cash box from Mr Jackman's security van to a getaway vehicle and a nearby dashboard camera, popularly called a "dashcam", captured the robber departing the scene in the car. The Crown's case was that he was the appellant. It led agreed evidence about the circumstances of the robbery and the layout of the scene, images of the robber on the dashcam, that the appellant's home was 0.9 mile from the bank; that the getaway Volkswagen Golf bore false number plates and had been stolen, that it and the empty cash box were found abandoned a few streets from the appellant's home; and that the appellant raised an alibi during his second police interview relying upon a plasterer, Steven Beard whom it called so as to controvert the alibi. 3. Finally it led evidence from facial mapping expert Clive Evans. He told the jury that by comparing images from the dashcam with photographs of the appellant he could identify features which taken together lent powerful support to the contention that the images were of the same man and which did not exclude the appellant 4. The defence was alibi. The appellant told the jury that at the time of the robbery he was at home with by Beard. He suggested the facial mapping evidence was mistaken and relied on the absence of science to link him to the van,Golf or cash box, and that Beard had made a mistake about his own timings. He relied on his good character. 5. Mr Jackman told the jury he reached the bank at about 09.32 and made six or seven trips in and out. The dashcam showed the robber leaving with his booty at 1006. Mr Beard's evidence was that he had gone to the appellant's address nearby at 0800 and was let in by a woman. At 0815 a man in dark clothing arrived and Mr Beard himself quit the address at 0945. He agreed he had told the police initially that he departed at 0955 but he explained that that had been an error. 0955 was the timing of a mobile telephone call to his next customer whilst he sat outside the appellant's address which, he repeated, he had quit at 0945. 6. Mr Evans recounted his more than 27 years experience of imagery analysis, and that images from the dashcam were of good quality. The lighting was natural and the robber (referred to as "Man X") close to the camera. There were 30 frames per second. Over some 16 hours his analysis took in facial landmarks of Man X - for example eyes, lips, ears - which did not permit him to exclude the appellant. He reviewed similarities between Man X and an image of the appellant. Both had visible dark tone marks around the face, the face was medium sized, the nose had a slight upward tilt, rounded tip and slightly flared left alae, the chin had a darker tone effect and was cleft, there was a cupid's bow, the left ear had a similar lobe, outer rim and folded helix, similar detail in shape and form of the tragus and antetragus. His conclusion was that imagery lent powerful support to the contention that Man X and the appellant were the same and on the scale of support used by experts such as himself powerful was the uppermost. He could not discount the possibility that someone not the appellant but who nevertheless bore striking resemblance to the appellant could be Man X. He agreed the comparison was as good as the quality of the images. He conceded he was working on only one side of the face, not square on; that the facial comparison of the imagery overall was fair to good and that there exists no national database of physical features and that it was impossible for him to help the jury with statistical analysis of probability of imagery matching. Finally, he also accepted that his opinion, albeit as an acknowledged expert and based upon experience, was necessarily a subjective assessment. 7. The appellant told the jury he had no convictions for violence or for any similar offence, that at the time of the robbery he was at home, Beard with him until 11 that morning. He was not the robber and he left his house no earlier than one o’clock in the afternoon. 8. Leave was given by the single judge in respect of the judge's directions to the jury on its approach to the evidence of the facial mapping, the complaint being that they were inadequate. The appellant renews his application for leave to argue others. 9. Mr Jenkins, who also appeared below, argues that the case depended entirely upon the evidence of facial mapping. He has no complaint about the judge's standard direction as to expertise but a good many complaints about how the judge elaborated upon the relevance, importance and status of the expertise. 10. The judge had in mind Atkins [2009] EWCA Crim. 1876 where Hughes LJ in paragraphs 23 and 30 said the court accepted the caution with which any expressed conclusion based on evidence of this kind needs to be approached. It is not based upon a statistical database and that must be made crystal clear to the jury. He added: Without attempting to ordain a form of summing up which can fit every case, we observe that in some instances it may help the jury for the judge to explain that the forms of expression are labels applied by the witness to his opinion of the significance of his findings and different experts may not attach the same label to the same degree of comparability." 11. Mr Jenkins argues that the Atkins approach is absolutely necessary in the index case. Additionally the Crown Court Compendium at 10.3 paragraph 13 reads: "It may be necessary to incorporate one or more of the [Atkins] directions: ... (c) In a case where an expert expresses an opinion in relative terms, a direction in accordance with Atkins ... " 12. The complaint is that the judge failed to make it sufficiently clear to the jury that there was a need for caution and failed to spell out in crystal clear terms the limitations and the weaknesses of the expert evidence. Mr Jenkins concedes that the judge spent some 20 minutes detailing the evidence of Mr Evans but he is criticised for failing to conduct a dispassionate review of the deficiencies that arose as a consequence of the limitations of the expertise. Mr Jenkins concedes that the judge was entitled to review the evidence in chief in detail but his complaint is that that made it all the more important that the judge made clear the limitations. 13. The difficulty Mr Jenkins faces is that the judge did. Having set the scene for the expert evidence he said (26A to 27C) that Mr Evans recognised he could not discount the possibility that someone strikingly resembling the appellant could be Man X; that the comparison was as good as the quality of the images; that he was working on but one side of the face, not square on; that the facial imagery comparison was fair to good; that the images of Man X were slightly tilted so not in exactly the same position as the photographs of the appellant; that there is no national database; a statistical probability to assist the jury is not possible; and his opinion was subjective rather than based on scientific analysis. This is plainly what Hughes LJ had in mind in Atkins when pointing out that one expert might take a different view on the same set of facts. 14. The judge continued: "Bringing these threads together, it is important that you approach the evidence of facial mapping ... with caution. That does not mean that you cannot rely on the expert evidence ... Simply that it needs to be considered ... with care. Mr Evans considers that the imagery evidence lends powerful support to the contention that Man X and Mr Purlis are the same man. But you should remember this, that, as Mr Evans conceded, there is no database ... his opinion is based on his experience and his expertise over many years. Because there is no national database ... or any mathematical formulae, as is the case with fingerprints, or statistics as to the probability of occurrence of particular facial characteristics in the population at large, as in the case of DNA evidence, you cannot gauge the results of an expert's analysis of imagery in the same way as fingerprint or DNA evidence. The fact that there is no statistical database ... is something you should clearly have in mind. But that does not mean that the absence of such a database means that no opinion can be expressed by Mr Evans beyond stating his examination of the images ... An expert who spends many years studying this kind of evidence ... can properly form a judgment as to the significance of what he has found ... It is a judgment based on his experience. It is for you to decide whether to accept the evidence." 15. We struggle to identify any deficiency in that full and fair approach. 16. Mr Jenkins also complained that the judge did not explain or underline to the jury that there is a difference between imagery establishing the positive and imagery capable of excluding. We suggest that the quotation through which we have just gone demonstrates that that is a complaint without substance. 17. The next complaint is as to the way the judge approached the evidence of Mr Beard. The Crown called him. The defence to an extent relied on what he said since the defence was and always remained alibi. To explain his evidence that he quit the house at 0945, which would have allowed the appellant time to reach the scene of the robbery, the defendant told the jury that Beard had to be mistaken as to his timings. 18. The judge was criticised for this passage: "As the prosecution have to prove the defendant's guilt, so that you are sure of it, Mr Purlis does not have to prove he was elsewhere at the time. On the contrary, the Crown must disprove any alibi evidence and satisfy you, so that you are sure, that the alibi relied on by the defendant is wrong. In this case the prosecution have sought to do that by calling Mr Beard who said he left [the address] at 9.45 am. Even if you consider that Mr Purlis is wrong or may be wrong on his timings, or that Mr Beard may be wrong as to when he left ... that does not by itself entitle you to convict the defendant. It is a matter which you may take into account. But you should only convict the defendant if the prosecution have satisfied you, so that you are sure, he was at the HSBC branch, at the bank, at the time the robbery took place and that he committed this crime." 19. Invited to explain where in that passage the judge fell into error, we think Mr Jenkins said the judge should have told the jury it had to be sure Beard was wrong on his timings and sure of the time at which the appellant left. As was pointed out in dialogue, within that passage is the classic standard direction of alibi. It had been preceded by the judge telling the jury that it was for the Crown to prove the defendant's guilt and that Mr Purlis did not have to prove he was elsewhere at the time. We are entirely unconvinced that the judge fell into any error. That passage, classic and well-expressed, gave the jury clear, accurate directions and is unimpugnable. Beard initially told police he was at the appellant's address at 09.55. It is worth reminding ourselves that in an earlier part of the summing-up the judge rehearsed the two timings Beard had explained. He described exactly what Beard had said about timing and that he told the jury that was wrong, he had been confused. It is difficult to see how much more help the jury could have had. 20. Mr Jenkins seeks leave to renew his application in respect of the release into local media of an image of the robber. Circulation effectively limited it to the vicinity of the robbery. That, Mr Jenkins suggests, went to the absence of a wider database and to the possibility of a mistaken identification. It is impossible, he says, to know how many males nationwide would have resembled Man X. The judge did not remind the jury that the photograph was released only into the local media. 21. We are not surprised. There was no need. 22. Mr Jenkins next relies on insufficient drawing of the attention of the jury to the absence of supporting evidence tending to demonstrate guilt. Though science and other potential supporting evidence was mentioned in the summing-up, the judge is said to have failed adequately to draw to the jury's attention what was not there. That is, no science to link the defendant by fingerprints to the stolen money box. The judge is criticised for saying merely that there was "nothing to link the defendant on any one of [these items]". What the judge said is described by Mr Jenkins as neutral, whereas what was needed was a positive rehearsal of the compelling point that the DNA of three others (not including the appellant) was on the handle of the cash box. 23. In our view the first difficulty is that such evidence is not compelling. Second, if there were a perceived omission counsel did not invite the judge to remedy it. There is nothing in the point. 24. Next in the list of things insufficiently drawn to the attention of the jury is that there was no CCTV evidence showing the arrival of the stolen getaway car moments before the robbery, during a period when the Crown's case was that the appellant would have had the opportunity to leave home and arrive and that the judge failed to make clear that the Golf was not linked to the defendant. 25. We make the same comments. The judge explained to the jury areas where it should concentrate. There is nothing in the point. 26. Finally in his catalogue of omissions Mr Jenkins complained that when dealing with the evidence as to mobile phones the judge should have told the jury that there were no calls or messages of relevance found upon it. 27. The judge told the jury that the evidence was that there was no CCTV outside the bank or anywhere else. DNA and forensic fingerprint analysis of the van, the Golf and the cash box did not link the defendant to the robbery. His house was searched again. No hammer, no baseball cap and no clothing was found to link him to the robbery. The Golf used in the robbery was found to be stolen and using false plates. It was stolen with its keys in a burglary in West London in June 2015 and had been seen to leave South London the evening before the robbery and was seen entering Sussex on the evening of 8th July 2015 (the day before the robbery at quarter to midnight. The real vehicle, the registration number, was in Liverpool. The defendant's mobile phone was seized to ascertain whether he had any phone calls or text messages about the vehicle at the time it was found. 28. If we headed that extract "What there wasn't", it is a reasonable description of the trouble the judge took to make the jury aware of what the Crown could not lead. 29. The judge, Mr Jenkins finally submits, should have reminded the jury much more forcefully than he did of the need for caution to avoid the risk of injustice, that an honest witness can be a mistaken witness and that a convincing witness can be a mistaken witness. 30. Read from start to finish this summing-up contains every direction necessary. It is balanced and fair. 31. We have not been persuaded there is any merit in any of those grounds so far considered. 32. We turn finally to the complaint that the judge should have supplied to the jury written directions and a route to verdict. 33. Most judges, we suggest, and probably in a majority of cases, either supply written directions or routes to verdict or at least contemplate so doing before deciding against it. The more serious the case, the more stratified the approach the jury will have to take, and the more helpful are written legal directions and an algorithmic approach to verdicts. 34. This case was straightforward. There was one issue: identification. There was no need for a written route to verdict. The summing-up set out the jury's task lucidly, explicitly and unimpugnably. 35. Consequently, for all the reasons we have given, where renewed leave was sought we reject it, and where leave was given this appeal against conviction is dismissed.
{"ConvCourtName": ["Crown Court sitting at Lewe"], "ConvictPleaDate": ["16th December 2016"], "ConvictOffence": ["robbery"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court sitting at Lewe"], "Sentence": ["12 years' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["36"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["appellant's home"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["by a man"], "VictimType": ["Mr Jackman"], "VicNum": ["the security guard"], "VicSex": ["Mr"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["security guard"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["facial mapping expert", "dashcam"], "DefEvidTypeTrial": ["The defence was alibi.", "DNA and forensic", "He relied on his good character.", "evidence as to mobile phones", "a plasterer, Steven Beard"], "PreSentReport": ["data not available"], "AggFactSent": ["armed"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["safety of his conviction."], "AppealGround": ["the judge's directions to the jury on its approach to the evidence of the facial mapping, the complaint being that they were inadequate."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["against conviction is dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["We have not been persuaded there is any merit in any of those grounds"]}
{"ConvCourtName": ["Crown Court Sitting At Lewe"], "ConvictPleaDate": ["2016-12-16"], "ConvictOffence": ["robbery"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court Sitting At Lewe"], "Sentence": ["12 years' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["36"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Stranger"], "VictimType": ["Individual person"], "VicNum": ["1 of 1"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Employed"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Expert report/testimony", "Digital evidence"], "DefEvidTypeTrial": ["DNA and forensic", "evidence as to mobile phones", "a plasterer, Steven Beard", "He relied on his good character.", "Offender claims to have alibi"], "PreSentReport": ["Don't know"], "AggFactSent": ["armed"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["safety of his conviction."], "AppealGround": ["the judge's directions to the jury on its approach to the evidence of the facial mapping, the complaint being that they were inadequate."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["We have not been persuaded there is any merit in any of those grounds"]}
111
Neutral Citation Number: [2020] EWCA Crim 147 Case No: 201904443 A2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT TRURO HHJ LINFORD T20190296 Royal Courts of Justice Strand, London, WC2A 2LL Date: Wednesday 12 th February 2020 Before: LADY JUSTICE THIRLWALL DBE MRS JUSTICE CHEEMA-GRUBB DBE and HHJ WENDY JOSEPH QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 Between: THE ATTORNEY GENERAL Appellant - and - DANIEL PECK Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Harpreet Sandhu for the Attorney General Mr Ramsay Quaife for the Respondent Hearing date: Tuesday 21 st January 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment THIRLWALL LJ: 1. Daniel Peck is 22 years old. Until the convictions with which we are concerned he was of good character. At a plea and trial preparation hearing on 24 th October 2019 in the Crown Court at Truro, he pleaded guilty to:- i) Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of MDMA, a class A drug (known as ecstasy), between 1 st October 2018 and 13 th October 2018, contrary to section 170(2) of the Customs and Excise Management Act 1979 ) (Count 1). ii) Possessing MDMA with intent to supply, on 28 th October 2018, contrary to section 5(3) of the Misuse of Drugs Act 1971 (“ the Act ”)) (Count 2). iii) Simple possession of a class A drug bromophenethylamine (known as 2C-B) contrary to section 5(2) of the Act (Count 3). iv) Simple possession of a Class B drug (ketamine) on 28 th October 2018, contrary to section 5(2) of the Act (Count 4). v) Being concerned in the supply of MDMA, a class A drug, between 8 th September 2017 and 28 th October 2018, contrary to section 4(3) (b) of the Act ) (Count 5). 2. On 8 th November 2019, he was sentenced to 24 months’ imprisonment suspended for 24 months on counts 1, 2 and 5 with requirements to complete 300 hours of unpaid work and to abide for six months by a daily electronically monitored curfew between 19:00 hours and 06:00. No separate penalty was imposed in respect of counts 3 and 4. 3. The Attorney General seeks leave to refer the sentence to this court as unduly lenient pursuant to s36 CJA 1988 . Preliminary Observation 4. There were a number of paragraphs of the reference, described as final, that had not been agreed by counsel for the defence. He had indicated where the areas of disagreement were in mid-December. The reference had been changed (in part) but there remained disagreement by the date of the hearing on 21 st January. There was nothing on the face of the document headed Final Reference to inform the court that the facts were not agreed. This is regrettable. Mr Sandhu, who drafted the reference and who presented the case before us, said that he did not think the differences between him and counsel for the offender were of significance. We leave out of account the content of the four paragraphs that were not agreed. FACTS 5. On 12 th October 2018, UK Border Agency officers intercepted a package from the Netherlands containing 201 MDMA tablets (with a combined weight of 80.7 grams). It was addressed to Logan Chapman at the offender’s home address in Cornwall. The MDMA had a purity of 44%. Each tablet was valued at £10. The total value of the package was, therefore, £2,010 (Count 1). 6. Police officers went to the offender’s home on 28 th October 2018. The offender was there and agreed to a search of his bedroom. The offender said that he had ordered MDMA tablets online in the name of Logan Chapman. The police officer who attended at the house said: “Peck seemed very anxious and it was clear to me that he was a young man who had not had any previous involvement with the police. He appeared to be making immediate admissions to the offence. I cautioned Peck, deciding it would be more appropriate to organise a suspect interview with him as a voluntary attendee.” 7. The offender gave the police his phone and the PIN for the phone. As counsel for the crown very fairly put it at the hearing before the judge “so alongside the guilty pleas it may be thought that is something relevant when considering where in the range to place it.” 8. The offender provided the police officers with a box from the wardrobe in his bedroom and a set of scales. The box contained:- a. Two plastic bags containing a total of three MDMA tablets (valued at £10) each and two broken MDMA tablets. These formed the basis of Count 2 (possession with intent to supply). b. Another plastic bag containing 938 milligrams of crystalline MDMA with a purity of 96% (which was valued at £40). This too was included in Count 2. c. A fourth plastic bag containing 9 tablets of 2C-B (with a combined weight of 1.59 grams and which were valued at £10 each) (Count 3). d. Three more bags containing 8.46 grams of ketamine (with a street value of £170) (Count 4). 9. He also took £1,180 from his bedside cabinet and handed it to the police. At the hearing in November he did not oppose the making of an order under Section 27 of the Misuse of Drugs Act. 10. The drugs recovered from the offender’s bedroom had a street value of £330. Those the subject of counts 3 and 4 were for his own consumption. 11. The offender was not arrested because of his co-operation with the police. He was asked to attend an interview under caution voluntarily on 2 nd November 2018. By then he had legal advice and answered, “No comment” to the questions asked of him. 12. His phone was examined. It contained text messages which showed that the offender had been concerned on several occasions between September 2017 and October 2018 in the street level supply of MDMA, 2C-B, ketamine and nitrous oxide (a controlled substance under the Psychoactive Substances Act 2018). This was the basis of count 5. The importation discovered in October 2018 was not an isolated event. 13. In the two months before he was arrested the offender had exchanged messages about the supply of drugs with 18 people. (The contact details of 16 of them were saved in his telephone. It was agreed that he knew all 16.) The names of the contacts were readily identifiable and all the text messages were easily read. 14. Texts showed that the offender was dealing in drugs and legal highs. Some suggested that the offender was open to selling in larger quantities for onward sale. See for example the following text “Could do like 150. You make 100 then. And orange Teslas [ecstasy], they’re banging. Would sell out instantly”. Whether this or other such suggestions were put into effect is not apparent and they are inconsistent with the accepted basis of plea. 15. On 28 th June 2018, the offender sent a “broadcast” message to a contact of his to say that he had received a fresh supply of MDMA tablets and that anyone who wished to purchase any from him should contact him. The offender said, “… this is my last ever lot and I’m stopping selling and sorting my life out…” There was some evidence that he did attempt to sort his life out. But in October he committed the offence at Count 1. Funds recovered 16. In addition to the money the offender gave to the police at his home further sums were restrained in his bank account. The offender did not seek to recover them. The inescapable inference is that they were drugs related. A count of converting criminal property in the sum of £22,000 was not proceeded with because the offender was able to prove that the deposits relied on were not connected with his offending. Delay 17. The offender was not charged until 27 th August 2019, 10 months after the offences. He had cooperated fully with the police at his home. His phone was full of evidence, easily read. Analysis of the drugs was not complex. The result of the delay was that he was 21 by the time of the sentencing hearing. He was 17 when the offending began. The Proceedings 18. The offender pleaded guilty on the following, written basis: “that he sold mostly legal highs, such as nitrous oxide, alongside MDMA, to known and established recreational users of drugs, in part to fund use.” 19. The prosecution did not take issue with that and the judge sentenced on that basis. Having heard argument on the circumstances in which the guilty pleas were offered he gave the offender maximum credit. We shall return to that later in this judgment. 20. There was no pre-sentence report prepared before the hearing, notwithstanding the offender’s age and his character. Even if it had been thought at the PTPH that immediate custody was the inevitable outcome there were aspects of the offender’s history and background which were relevant to the sentencing exercise. In such cases a pre-sentence report should be sought. 21. Fortunately, the judge was able to call upon an experienced probation officer whom he made clear he held in high regard. He had interviewed the offender at court and gave evidence. This was followed by a written report which this court has read. The judge was impressed by the opinion of the probation officer who, having set out the offender’s history and current circumstances to which we shall refer below, considered that he posed a low risk of reoffending. 22. There were before the court a large number of letters from people who had known the offender in a number of different capacities. There was evidence that he had been bullied and was something of an outsider in school. This resonated with the view of the probation officer that his involvement firstly in taking drugs aged 17 and then selling them and legal highs had given him some acceptance and social status which had previously eluded him. 23. His employer described him as a valued employee and said he was remorseful. Another explained that the offender was a young man who had had many vulnerabilities in his life. He had begun participating in the Cornwall boxing team where he was very much valued. 24. It was clear from letters from family members that he had a profound understanding of the impact of what he had done upon the rest of his family. He was also described as polite, well-mannered and full of remorse. 25. The judge adjourned to consider sentence. Sentencing remarks 26. The judge said that he had tried to balance “on the one hand the frankly enormous criminality of what you have done with the personal mitigation that is available, and also to reflect the reality of the situation here. He described the purchase of the 200 ecstasy tablets against a background of actively dealing “in this very dangerous drug for a significant period of time.” The importation had been undertaken to supply the business. The judge accepted that he had started with legal highs and had then moved onto dealing class A drugs on the basis that these were people who wanted this commodity and were also using legal highs: “You were doing so not to make any great profit but there was certainly money to be made”. He confirmed that he would sentence on the basis of plea tendered to the court. 27. He referred to the evidence of Mr Ciocci, the probation officer, whose evidence we have already rehearsed. He added that since the search of his house the offender had “turned his life completely around and had had the offences hanging over him for a long time”. He pointed to another case in a different city where the supply of ecstasy had led to the deaths of two young people. He had sentenced the supplier to prison. The young people were his friends. 28. In relation to the importation (Count 1) the judge pointed out that Category 3 importation involves 300 tablets. There were 200 here. Category 4 is only four tablets. The guideline makes clear that if the amount significantly exceeds the four tablets in category 4, judges should look at the higher category and the range that is available. 29. The judge then turned to the supply guidelines and continued “the sentencing range, for someone involved in this supply can involve a starting point of 3 ½ years, because although there are elements that this is a significant role, this was a low grade enterprise and has elements of a lesser role because of your naivety. So I have a starting point of 3 1/2 years.” 30. He then reduced the sentence to two years on the basis that the plea was entered at the earliest opportunity as we have already said. The highest reduction for an early guilty plea is one third. The judge in fact reduced the sentence by well over 40% to reach a sentence of 2 years [on Count 1] which he then suspended. He imposed a concurrent sentence of the same length on Counts 2 and 5. 31. The judge referred in summary terms to the following passage in the supply guideline at Step 2: “Where the defendant is dependent on or has a propensity to misuse drugs and there is sufficient prospect of success, a community order with a drug rehabilitation requirement under section 209 of the Criminal Justice Act 2003 can be a proper alternative to a short or moderate length custodial sentence”. This part of the guideline is directed to combining a drug rehabilitation order with a community order instead of imposing a custodial sentence. 32. At the end of his remarks the judge said in direct and powerful terms that if the offender put a foot wrong he would send him to prison and he reserved the case to himself. He added “You get to play, as I said to somebody else today, one card in your life only once, and that is your good character ….and you will never be able to play it again.” 33. He concluded by saying “By imposing the sentence that I have, I have sought to do justice in this case, bearing in mind all I know about the offence, the offender and with regard to the guidelines, and I have also had regard to a number of authorities of the Court of Appeal in which this approach can at least be considered to be one which is just.” Post-sentence 34. Since he was sentenced the offender has received outstanding reports from his supervising probation officer. There is a report dated December 2019 and an update which was provided to us on the morning of the hearing. Both are to the same effect. We quote from the latter, dated 20 January 2020 “Dan has been absolutely brilliant at getting his unpaid work done and I cannot fault his commitment to attending these sessions. Unpaid work in Cornwall is particularly bad at the moment with many of the groups being cancelled but Dan has managed to negotiate around these issues and fly through his hours.” He had already competed 200 hours at a rate of 21 hours per week. This rate of achievement is remarkable. The probation officer also commented that although there was no supervision requirement the offender had maintained very close contact with her. The judge’s assessment that the offender would respond to a non-custodial sentence was undoubtedly correct. The probation officer expressed her concern as to the effect upon the offender of being sent to prison. Submissions 35. On behalf of the Attorney General, Mr Sandhu submits, in summary, that this sentence is unduly lenient because it fails adequately to reflect harm and culpability as required by the guidelines, it does not take account of the fact that there were two aspects to the offending: importation and supply over a period of a year. Further that he did not take account of a number of aggravating factors and gave too much weight to personal mitigation. It is not disputed on behalf of the Attorney General that this was a case in which the judge was right to pass concurrent sentences reflecting the whole of the criminality. 36. On behalf of the offender whom he represented before the sentencing judge Mr Quaife submits that the sentence is not unduly lenient and that the very experienced judge passed an appropriate and understandable sentence in all the circumstances. He reminds the court, correctly, of the observations of Lord Lane CJ in Attorney General’s Reference (No 4 of 1989) (1989) (11) Cr. App R (S) 517 and repeated many times since: “the court may only increase sentences which it concludes were unduly lenient. It cannot, we are confident, have been the intention of Parliament to subject defendants to the risk of having their sentences increased – with all the anxiety that that naturally gives rise to – merely because in the opinion of this Court the sentence was less than this Court would have imposed”. The Guidelines 37. On the facts here Count 5 (possession with intent to supply) constituted the more serious offending, since it continued for over a year. It was appropriate to reflect the whole of the criminality in the sentence on that count and to treat the other aspect of the offending, the importation, as an aggravating factor. Count 2 marked the end of the period represented by Count 5. A concurrent sentence for that offence was appropriate. 38. In relation to Count 5 the offender was in Category 3, significant role. Whilst the judge found this to be a low-grade operation, a description with which we do not disagree, it was his own business, he ran it and he did so for money, not vast sums but into four figures and he ran it for over a year. The offender’s role cannot properly be categorised as lesser. The starting point was 4 years and 6 months. 39. On Count 1 the harm category was below category 3 and above category 4. The role was significant for the reasons we have set out above. Were the judge sentencing separately for that offence a starting point below the category 3 range would have been appropriate (about 4 years). As we have said, it was appropriate to deal with it as an aggravating factor on count 5. 40. The judge’s remarks as set out at paragraphs 29 and 30 above are not easy to follow. It would appear that when describing the starting point for Count 1 the judge was in fact referring to the sentence before reduction for the plea of guilty since he had already factored in much of the mitigation as he had carried out his sentencing exercise – and went on immediately thereafter to make the reduction for the guilty plea. It is not clear where he started. To reach a sentence before plea of 3 ½ years he must have started significantly above 3 ½ years but the preceding passage of his remarks suggests that he was referring to the lower end of the range for lesser role Category 3. This was not justified. Other aggravating factors 41. Mr Sandhu submits that this was a sophisticated operation. He relies on the fact that the offender bought the drugs via the internet. We do not consider that buying something online is a mark of sophistication. The other evidence to which we have referred points in the other direction (all names and messages on his mobile phone, easily read. There was no burner phone, no codes, no attempt to hide any of his dealings). 42. We reject Mr Sandhu’s submission that the offender had drawn other people into dealing in drugs. The texts do not bear such a conclusion. He sought to rely on established evidence of community impact on the basis that the judge had, when sitting in Plymouth, sentenced a supplier of ecstasy to two young people who had lost their lives as a result of taking it. That tragic outcome in another town is not what is meant by community impact in the sentencing guideline. The judge, correctly, did not approach it as such. 43. It follows that the two factors we have identified above: the length of the offending and the importation were the aggravating factors taking the sentence up from the starting point of 4 years and 6 months. Factors reducing culpability and personal mitigation 44. We reject Mr Quaife’s submission that this was dealing to fund his own habit. It was partly that but also partly to make money – and to win friends and status. He was not in the category of a dependent drug user who needed rehabilitation from drugs. He was using drugs recreationally. 45. We do not consider that the judge was entitled to rely on the passage in the guideline we have set out at paragraph 31 above. The judge had rightly concluded that a custodial sentence was necessary. A drug rehabilitation order was not necessary. It was not open to the judge to use this passage as a factor reducing the length of the sentence of imprisonment, particularly given the weight he gave to the other mitigating factors to which we now turn. 46. There were the following factors reducing culpability and other mitigating factors: his positive good character, his age, his naivete/immaturity, his remorse, his determination to make something of his life, as evidenced by his work in the boxing team, and in his employment. He had turned his life around in the year between detection and sentencing. 47. To those matters should be added his open and honest attitude at the time the police came to his home which was not eclipsed by his no comment interview and the delay between the search of his home and charge. 48. Taking all these matters and balancing them against the aggravating factors to which we have referred the appropriate sentence on count 5 before reduction for the plea was 4 years imprisonment. 49. We have taken account of the offender’s cooperation with the police earlier in the process, as required. Thereafter there was no offer of pleas to any counts until there had been significant negotiations. A one third reduction was not appropriate. The conventional reduction of 25% should be applied. This leads to a sentence of 3 years imprisonment. We reduce that by a further three months to take account of the work he has already completed since sentence together with the severe daily curfew bringing the sentence to one of 2 years and 9 months imprisonment. 50. There is no provision for the suspension of a sentence of more than 2 years, irrespective of the matters in favour of such a course were it available. 51. We understand the judge’s approach. He was faced with powerful evidence that it was possible to stop this young man reoffending. There was evidence before us that he would find prison very difficult. It is, however, inescapable that where a person imports and deals in Class A drugs over a prolonged period, even if he is a person of positive good character with every expectation of good behaviour in future, an immediate prison sentence of some length is almost always the outcome. CONCLUSION 52. It follows that we give leave to the Attorney General in respect of the sentences on Counts 1, 2 and 5. We quash the sentences of 2 years imprisonment suspended for two years and substitute on each Count – 2 years 9 months imprisonment to be served concurrently. We make no orders in respect of Counts 3 and 4. The judge’s order of no separate penalty remains in force. 53. The offender must therefore present himself at Camborne Police Station at 10am on Thursday 13 th February.
{"ConvCourtName": ["Crown Court at Truro"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["Simple possession of a Class B", "knowingly concerned in the fraudulent evasion of the prohibition on the importation of MDMA", "concerned in the supply of MDMA", "Simple possession of a class A", "Possessing MDMA with intent to supply"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["24th October 2019", "pleaded guilty to:-"], "PleaPoint": ["At a plea and trial preparation", "plea was entered at the earliest opportunity"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["data not available"], "Sentence": ["24 months’ imprisonment suspended for 24 months on counts 1, 2 and 5 with requirements to complete 300 hours of unpaid work and to abide for six months by a daily electronically monitored curfew"], "SentServe": ["No separate penalty was imposed"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["aged 17", "22 years old"], "OffJobOffence": ["His employer"], "OffHomeOffence": ["offender’s home address in Cornwall"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["intercepted a package", "phone was examined"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["£2,010"], "MitFactSent": ["remorse", "mitigating factors: his positive good character, his age, his naivete/immaturity, his remorse, his determination to make something of his life, as evidenced by his work in the boxing team, and in his employment.", "guilty pleas", "lesser role", "vulnerabilities"], "VicImpactStatement": ["data not available"], "Appellant": ["THE ATTORNEY GENERAL Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["sentence to this court as unduly lenient"], "AppealGround": ["unduly lenient"], "SentGuideWhich": ["Customs and Excise Management Act 1979)", "Misuse of Drugs Act 1971 (“the Act”))"], "AppealOutcome": ["quash the sentences of 2 years imprisonment suspended for two years and substitute on each Count – 2 years 9 months imprisonment to be served concurrently."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["fails adequately to reflect harm and culpability"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["Crown Court At Truro"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["Simple possession of a Class B", "concerned in the supply of MDMA", "Simple possession of a class A", "Possessing MDMA with intent to supply", "knowingly concerned in the fraudulent evasion of the prohibition on the importation of MDMA"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes", "Don't know"], "PleaPoint": ["plea was entered at the earliest opportunity", "At a plea and trial preparation"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["data not available"], "Sentence": ["24 months’ imprisonment suspended for 24 months on counts 1, 2 and 5 with requirements to complete 300 hours of unpaid work and to abide for six months by a daily electronically monitored curfew"], "SentServe": ["Concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["17", "22"], "OffJobOffence": ["Other"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["phone was examined", "intercepted a package"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["Financial gain /value"], "MitFactSent": ["vulnerabilities", "remorse", "mitigating factors: his positive good character, his age, his naivete/immaturity, his remorse, his determination to make something of his life, as evidenced by his work in the boxing team, and in his employment.", "lesser role", "guilty pleas"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Sentence (is unduly lenient)"], "AppealGround": ["unduly lenient"], "SentGuideWhich": ["Misuse of Drugs Act 1971 (“the Act”))", "Customs and Excise Management Act 1979)"], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["fails adequately to reflect harm and culpability"], "ReasonDismiss": ["data not available"]}
501
Neutral Citation Number: [2018] EWCA Crim 78 Case No. 2017/02380/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday 23 rd January 2018 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( The Lord Burnett of Maldon ) MR JUSTICE WARBY and MR JUSTICE DOVE __________________ R E G I N A - v - DANHYAL YOUNIS KHAN __________________ Computer Aided Transcription by Wordwave International Ltd trading as DTI 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400; Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) ____________________ Mr D Gottlieb appeared on behalf of the Applicant Mr J Hankin QC and Mr C Lester appeared on behalf of the Crown ____________________ J U D G M E N T (Approved) THE LORD CHIEF JUSTICE: I shall ask Mr Justice Warby to give the judgment of the court. MR JUSTICE WARBY: 1. This is an application for leave to appeal against conviction by Danhyal Younis Khan, who is now aged 25. He is one of three men who faced trial in April 2017 in the Crown Court at Birmingham on a single count of being knowingly concerned in the fraudulent evasion of a prohibition on the importation of goods, contrary to section 170(2)(b) of the Customs and Excise Management Act 1979. 2. The co-accused were the applicant's uncle, Naeem Younis, and a friend of the applicant's named Kaif Bahar. The goods in question were Class A drugs. Put simply, the three men were alleged to have taken part in the importation of heroin between 9 th and 19 th October 2016. 3. There is no doubt that, within that time frame, the applicant was knowingly involved in the importation from Pakistan of about 0.8 kilograms of heroin. His uncle pleaded guilty at the start of the trial. On his own account, at the instigation of his uncle, the applicant agreed to and did assume a false identity. In that identity he arranged to and did accept delivery of a parcel from a courier, knowing that it contained drugs. He had admitted this much in the course of his trial before His Honour Judge Simon Drew QC and a jury. His defence was that he had acted under duress. 4. The applicant gave evidence. The judge then made two rulings against him. In the first, the judge refused to allow him to be recalled to give further evidence. The second ruling was that the defence of duress should not be left to the jury. The applicant then changed his plea and was convicted on the basis of his plea of guilty. 5. The applicant now seeks leave to appeal against conviction. He initially challenged both of the judge's rulings which we have mentioned, but at the hearing today counsel has focused attention on the second ruling and has not pursued the challenge to the judge's refusal to allow the applicant to be recalled. 6. Meanwhile, whilst these proceedings go ahead, sentence on the applicant and his uncle has been deferred, and the jury has been discharged from returning a verdict against Behar. A retrial is scheduled. The single judge referred the present application to this court for pragmatic reasons – to minimise delay – without expressing any view on the merits. The Facts 7. The prosecution evidence can be shortly summarised on the basis of the judge's written ruling handed down on 2 nd May 2017. On 13 th October 2016 a parcel was sent from Islamabad to Birmingham via the DHL courier service. Inside the parcel were six leather jackets within which were concealed 98 packages containing 794 grams of heroin, with a street value in the order of £80,000. The consignee was named as a Mr Zaheer Khan of 55 Fentham Road, Aston, Birmingham. 8. Telephone records showed that the applicant's uncle was in regular contact with someone in Pakistan in the days immediately following the sending of the parcel. During that time, the uncle was also in contact with the applicant on his phone ending 5765. 9. On 14 th October 2016 the parcel cleared customs at Heathrow. Later that day, the applicant activated a pay-as-you-go phone ending 8278. 10. On 15 th October 2016, Younis sent a text message to the applicant's 8278 phone giving him the DHL tracking number for the parcel. 11. On 17 th October 2016, the applicant called DHL on the 8278 phone just after 8am. In a recorded call, of which a transcript was before the jury, he represented himself to be Zaheer Khan and asked if the parcel was due to be delivered that day. He was told that it was, at any time between 9am and 5.50pm. He asked if any duty had to be paid and was told that £96 was due. Later that day, he called DHL a further four times using the same phone. However, the parcel did not arrive. 12. The following day, 18 th October 2016, Luke Smith, a delivery driver for DHL, was rostered to deliver the parcel. He stopped his van in Fentham Road, near number 55, shortly before 1pm. He was then approached by Bahar who asked him if he had a delivery for number 55. When Mr Smith said that he did, Bahar said that he thought that duty was payable and Mr Smith confirmed this. The applicant then approached Mr Smith and, identifying himself as Zaheer Khan, signed for the parcel. At that point either he or Bahar paid the outstanding duty. Who did so was a matter that was disputed between the defendants. The parcel was then put in the boot of Bahar's car and the two men drove off with it. Shortly afterwards, they were stopped and arrested. The car was searched and the parcel was seized. 13. Both men were interviewed. Then declined to comment to all questions. Younis was arrested later. All three men were sent for trial. 14. When the applicant gave evidence in chief he provided a detailed account of what he said was his involvement in the importation of heroin and the background to it. His account filled in some details of his participation. He said that he had agreed with his uncle to sign for the parcel, after which Younis had given him a mobile phone and a SIM card pack and told him to put the SIM in the phone and use it to call DHL about the progress of the parcel. He said that he had failed to activate the SIM and lost it, so that when Younis called him on 14 th October to check, he decided to buy another pack. Having done so, he put the SIM with the 8278 number in the phone. On 15 th October, having obtained the reference number from Younis, the applicant went on the DHL website to track the parcel and in that way discovered that there was £96 duty to pay. On 17 th October he called DHL and was told that delivery was due that day. He spent most of the day on Fentham Road with Bahar waiting for the parcel. It was in the course of this period that he made the four chasing calls, only to be told that the lorry had broken down. That was just after 5pm. 15. He then called Younis, who called DHL himself and reported to the applicant that delivery would be the following day. Hence, on 18 th October, the applicant and Bahar returned and waited on Fentham Road and in due course received the parcel. The applicant's evidence was that it was Bahar who paid the duty. 16. The chief features of the background, according to the applicant, were these. He was very close to Younis, who is 35 years of age. They were more like brothers. He said that on the night of 10 th /11 th September 2016 Younis had been shot in the arm close to Younis' place of work, which was at a sheesha lounge where the applicant had been working. The applicant saw Younis shortly after this. After a period in hospital Younis came to live with the applicant's family. They spoke about the shooting. Younis refused to go to the police about what had happened. He said that he did not trust the police and that someone called Kiyani, who was a relative of the applicant, and Kiyani's mates would kill him if they found out that he had gone to the police. 17. About a week and a half to two weeks before the applicant's arrest, Younis told him that Kiyani had demanded that he did a favour, or he would be shot again. The favour required was to sign for a parcel. The applicant believed that the parcel might contain drugs because he knew that Kiyani had previously been arrested for importing drugs. The applicant again suggested that Younis go to the police, but Younis again refused to do so. He repeated that he did not trust the police and that if he did so "they" would shoot him or his kids. Younis said that he feared that he was being set up to attend a meeting where he would be shot. Younis, according to the applicant, kept asking the applicant to sign for the parcel and eventually he agreed. His account was that he did so in order to prevent his uncle or his cousins from being shot, believing what his uncle had told him. He picked up the parcel because he believed that otherwise the lives of Younis and his children would be in danger. 18. In cross-examination the applicant made a number of concessions. He agreed that, having studied police methods and procedure at university, his first instinct on hearing about the threat to his uncle was to go to the police because they would be able to help. Asked why he did not himself go to the police at that stage, he could not explain. He said, "I don't know". He agreed that at the time when he agreed to sign for the parcel he was not himself under any threat of violence. He agreed that Younis was not under any threat of immediate violence at that time either. The threat of harm to Younis and his children would only be carried out if and when the parcel was not signed for. He accepted that on 17 th and 18 th October, despite believing that the lives of his uncle and cousins depended on him, he had left Bahar on his own on Fentham Road for long periods of time, including a visit to the shop to buy some chips and one to his grandmother's. 19. At the close of this evidence Mr Gottlieb, who appeared for the applicant at the trial as he does today, conceded that on the applicant's own account all the elements of the offence charged were made out, but submitted that the defence of duress could be left to the jury. Mr Hankin QC, for the Crown, resisted that submission. Mr Gottlieb submitted to the judge that the evidence of his client, or the effect of it was that he had believed that if he went to the police then his uncle or his uncle's children would be killed. The judge indicated that he did not believe that this was the true state of the evidence. Mr Gottlieb responded that in that case "the answer would be to apply for leave to recall my client and he could be asked simply to clarify what is really being said". The judge replied, "No. He is not going to get a second chance about this". It was that response which originally formed one of the grounds of appeal, which has not been pursued today, as we have said. 20. We turn, therefore, to the judge's ruling on the defence of duress. The classic statement of the law in this area is that of Lord Lane CJ in R v Graham (Paul Anthony) [1982] 1 WLR 294. There are two questions: the first is whether the defendant was or may have been "impelled to act as he did because as a result of what he reasonably believed [the threatener] had said or done, he had good cause to fear that if he did not so act [the threatener] would kill him or cause him serious physical injury". The principle has since been extended to cover threats to kill or injure members of the defendant's family. It has never been disputed in this case that a threat to the applicant's uncle is capable of founding a defence of duress. 21. If the answer to the first question is "Yes", the second question arises. It is this: whether the prosecution have "made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed [the threatener] said or did by taking part [in the offence]". 22. The legal principles, including those limiting the scope of the defence were authoritatively re-stated by Lord Bingham in R v Z [2005] UKHL 22 , [2005] 2 AC 467 . The defence and its application have been reviewed in a number of decisions of this court, including: R v Bianco [2001] EWCA Crim 2516 , R v Batchelor [2013] EWCA Crim 2638 , R v Hammond [2013] EWCA Crim 2709 , and R v Brandford [2017] 1 Cr App R 14 . These cases were all cited and considered in the careful written reasons of Judge Drew QC. It is enough for present purposes to identify the following six points, which are reflected in the judge's ruling and are not controversial: 1. There is strong objective element in the defence reflected in, among other things, the test of what a sober person of reasonable firmness would do: see Brandford at [32] and Z at [21(4)]. 2. There is the question of whether evasive action could have been taken. Lord Bingham put it this way at [21(6)]: "The defendant may excuse his criminal conduct on grounds of duress only if, placed as he was, there was no evasive action he could reasonably have been expected to take… This is an important limitation of the duress defence …" 3. The threat must carry immediacy; otherwise, a defendant may find it impossible to dispute his ability to take evasive action: see Brandford at [33]. In Z Lord Bingham said at [28] this: "… if the retribution threatened against the defendant or his family … is not such as he reasonably expects to follow immediately or almost immediately on his failure to comply with the threat, there may be little, if any, room for doubt that he could have taken evasive action, whether by going to the police or in some other way to avoid committing the crime with which he is charged." 4. Where a defence of duress is raised, the burden lies on the prosecution to disprove it to the criminal standard of proof: Brandford at [36]. 5. Ordinarily, it will be for the jury to decide whether the prosecution has succeeded in this task. This court as warned that there is a thin line between cases where a judge is entitled to withdraw the defence from the jury and those where, on the other hand, he or she impermissibly reaches a conclusion on the facts and thus usurps the fact-finding role of the jury: see Hammond at [6]. 6. Judges do, however, have a responsibility to make rulings of law. The judge should exercise caution. But if the case is one in which the evidence fails to raise an arguable basis for a duress defence and no reasonable jury could conclude that the defence is or may be available, the judge is entitled – indeed he would be right – to withdraw the defence from the jury's consideration. The constitutional function of the jury does not include a right to reach perverse conclusions: see Bianco at [15], Batchelor at [16] to [19] and Brandford [37] to [38]. 23. In this case the judge identified two key questions that arose on the evidence. The first was whether the threat was an immediate one ("the immediacy issue"). The second was whether it would have been possible for the applicant to take evasive action ("the evasion issue"). In the judge's view, these were separate and distinct questions. Having reviewed the authorities, the judge concluded that, in principle, in determining whether a reasonable person of the applicant's age and background may have been driven or forced to act as he did, the jury should consider: (1) whether or not the threat would be carried out immediately or almost immediately. If they are sure it would not be, then the defence cannot arise; (2) whether there was any evasive action open to the applicant in order to avoid committing the crime. If they are sure that there was, then the defence cannot arise. 24. Having reminded himself of the words of warning to be found in the authorities, the judge concluded, nonetheless, that he should withdraw the defence from the jury. So far as the immediacy issue is concerned, he reasoned that the time at which the applicant had first become a participant in the criminal conduct was when he agreed to sign for the parcel. At that time the threat in existence was not one which any properly directed jury could find was immediate or almost immediate. It was a conditional threat which would only ever be carried out at some future time. It was not enough to say that there was a threat that if the parcel was not signed for there would be immediate violence. 25. Further, or alternatively, the judge reasoned that any reasonable jury would be bound to resolve the evasion issue against the applicant. On his own account, once he agreed to sign for the parcel and therefore became knowingly concerned in the importation, he could have taken avoiding action, and he knew it, but he failed to do so. The judge went on to observe that the applicant's failure to go to the police, or even alert or consult family members, continued for at least a week after his first engagement in the exercise and that during that period he carried out a series of further acts in furtherance of the importation. 26. Mr Gottlieb challenges both limbs of the judge's ruling. He submits that the jury might have concluded that the applicant had acted under duress of circumstances if it accepted that his evidence was true. The submission is that the judge failed properly to evaluate the applicant's evidence, of which he did not have a transcript, about the nature of the threat and the reasons that he could not go to the police. As a result, it is submitted that the judge reached the wrong conclusions on both issues. The way the matter has been put in argument today is that the main issue is whether the learned judge properly appreciated that there was evidence from the applicant capable of amounting to an explanation as to why he failed to contact the police. 27. We take the view that the judge's approach to the imminence issue was, at least on the unusual facts of this case, an entirely sound one. We do not regard the judge's evidential analysis as arguably flawed. On no view of the evidence was the violence that had been threatened immediate or close to immediate at the time of the applicant's agreement to participate in the importation. There was a gap in time of at least a week between the engagement in the crime and the earliest time at which the threat might be put into effect. 28. But whatever might be said about the judge's approach to the imminence issue, we are quite certain that he reached the right conclusion on the evasion issue. With the assistance of Mr Gottlieb and Mr Hankin QC for the Crown, we have looked carefully at the transcript of the applicant's evidence. We have not been persuaded that the applicant's evidence can be read as indicating that he, as opposed to his uncle, believed that if the police were approached, that would lead to his uncle or cousins being killed. We do not see in the applicant's evidence anything capable of amounting to an explanation of why, as a matter of fact, he did not see fit to approach the police. 29. But even if that were wrong, as the authorities emphasise, the test is not (or not only) a subjective one. The applicant had spent four years studying police procedure. He offered no explanation for failing to approach the police. On the evidence in this case there was only one possible answer to the second question posed by Lord Lane CJ, namely that the sober person of reasonable firmness, sharing the characteristics of the applicant, would not have been driven to commit the crime. He would have taken evasive action by going to the police or perhaps in some other way: for instance, by involving family members. No reasonable jury could have reached a different conclusion, in our judgment. The judge stayed firmly on the right side of the line between usurping the role of the jury and the proper exercise of the judicial function. 30. For those reasons the application is refused. _____________________________________
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{"ConvCourtName": ["Crown Court At Birmingham"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["knowingly concerned in the fraudulent evasion of a prohibition on the importation of goods,"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["During court proceedings"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court At Birmingham"], "Sentence": ["Don't know"], "SentServe": ["data not available"], "WhatAncillary": ["Don't know"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["drugs seized from offender vehicle"], "DefEvidTypeTrial": ["duress", "defence of duress", "Feared he was in danger"], "PreSentReport": ["data not available"], "AggFactSent": ["profit from crime"], "MitFactSent": ["plead guilty", "His account was that he did so in order to prevent his uncle or his cousins from being shot, believing what his uncle had told him. He picked up the parcel because he believed that otherwise the lives of Younis and his children would be in danger."], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["3"], "AppealAgainst": ["against conviction"], "AppealGround": ["Judge withdrew defence from the jury which should have been admitted"], "SentGuideWhich": ["ection 170(2)(b) of the Customs and Excise Management Act 1979."], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The judge stayed firmly on the right side of the line between usurping the role of the jury and the proper exercise of the judicial function."]}
559
Case No: 201405516 C2 201500844 C2 Neutral Citation Number: [2016] EWCA Crim 447 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT MS RECORDER HENSON T20147013/ T20147462 Royal Courts of Justice Strand, London, WC2A 2LL Date: 19/04/2016 Before: LADY JUSTICE SHARP MR JUSTICE WARBY and THE RECORDER OF MAIDSTONE (Sitting as Judge of the Court of Appeal, Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between: GARFIELD RICARDO STEWART Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms Grace Ong (instructed by Ronald Fletcher Baker LLP ) for the Appellant Mr Kenneth Millett (instructed by The Crown ) for the Respondent Hearing date: 2 December 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Lady Justice Sharp Introduction 1. On 7 October 2014 at the Central Criminal Court, the appellant was convicted after a retrial before Recorder Henson (as she then was) and a jury, of one count of possessing a firearm with intent to endanger life contrary to section 16 of the Firearms Act 1968 (Count 1). He was acquitted of one count of possessing ammunition with intent to endanger life contrary to section 16 of the Firearms Act 1968 (Count 3). He had pleaded guilty on 7 April 2014, at the Crown Court at Inner London to the less serious alternative to Count 1 (possessing a firearm without authority contrary to section 1(1)(a) of the Firearms Act 1968) and to a charge of simple possession of cannabis (Count 4). An abortive first trial had taken place at the Crown Court at Inner London before HHJ Burn, in May 2014. 2. On 30 January 2015 at the Crown Court at Inner London, the appellant was sentenced to 11 years’ detention in a Young Offenders’ Institution on Count 1. No separate penalty was imposed on Count 4 and the charge of possessing a firearm without authority was ordered to lie on the file on the usual terms. 3. He appeals against conviction with limited leave, and against sentence with leave of the single judge. Grounds of appeal against conviction 4. The conviction appeal relates to a ruling made by the Recorder in which at the start of the trial, she permitted the prosecution to adduce certain “gang related” evidence pursuant to section 98 of the Criminal Justice Act 2003 (the CJA 2003), on the ground that it had to do with the alleged facts of the offence with which the appellant was charged. She also said that if she had had to consider admissibility under Section 101(1)(d) of the CJA 2003 the same evidence would have been admissible under those provisions. 5. The single judge considered that the Recorder held with good reason that the evidence was admissible both under section 98 and under section 101(1)(d); but that having regard to a reference in her ruling to the fact that both provisions had safeguards to protect fairness to the defendant in the trial, it was arguable that her failure then to direct the jury not to give that evidence undue weight or convict solely on the strength of it, was a misdirection. This was not a ground of appeal advanced by the appellant. 6. The appellant’s grounds as originally advanced were these. First, that the judge was wrong to rule that the evidence in question was to do with the facts of the case under section 98 of the CJA 2003 rather than bad character evidence under section 101 of the CJA 2003. Secondly, that the judge was wrong to rule (in the alternative) that it was admissible as bad character evidence. And thirdly, that the conviction was unsafe in all the circumstances, given the prejudice caused to the appellant by the admission of the bad character evidence. 7. Ms Ong for the appellant obviously adopts the ground on which leave was given; and also renews her application for permission in relation to the first ground originally advanced. The focus in the appeal has therefore been on two points: first, the correct route to admissibility; and second, whether the jury were given adequate directions on the evidence by the judge in her summing-up. Summary of the facts 8. The facts relating to this case are straightforward. On the evening of the 10 January 2014, the appellant who was then 19 years old, was travelling as the sole passenger in the rear seat of a mini cab in the Tulse Hill area of London. The mini cab was being followed by police in an unmarked vehicle; and was stopped in a three-sided stop on a housing estate in South London. The appellant was arrested and detained at the scene. Concealed underneath his coat was a Nike holdall which he was carrying with the strap over his shoulder. The holdall contained a Miroku 12-bore double barrelled sawn-off shotgun and ammunition fitting the gun in the form of two cartridges. The gun itself was wrapped using two bin liners, a grey cloth and a towel. It was not loaded. The appellant made no comment when arrested and cautioned and he made no comment in interview. 9. The prosecution case was that the gun was to be used in connection with a gang dispute; and the jury could properly infer the requisite intent from the nature of the weapon itself, the appellant’s actions on the night, and the surrounding circumstances. It relied on evidence of the appellant’s involvement with a violent gang; evidence that he had been the victim of gang violence; and images seized from his phone which showed an interest in guns beyond being a mere courier, to prove intent. 10. The defendant’s case on the other hand, was simply that he did not have (or the prosecution could not establish) the requisite intent. In his defence statement, the appellant said he had been asked to deliver the gun and merely acted as a courier; he was not a gang member and he was not aware that the male who asked him to deliver the gun was a gang member. 11. However, the appellant did not give evidence at trial, and no evidence was called on his behalf. Since he had, as the jury were told, admitted simple possession, the issue for the jury at trial on Count 1 was whether the prosecution had proved he possessed the firearm with the requisite intent. The Recorder’s ruling on bad character 12. The background to the bad character application made to the Recorder by the prosecution was as follows. 13. On 27 March 2014, the prosecution served evidence from Detective Constable Whiteway, a recognised expert in gangs and gang culture, relating amongst other things to the appellant’s membership of, and association with, a gang, the TN1 (Trust No One) gang in Tulse Hill in London. 14. The prosecution made no bad character application in respect of that evidence. The first trial began before HHJ Burn and a jury on 14 May 2014. It was stopped after the first prosecution witness had given evidence. We do not have a transcript of the judge’s reasons, but it is appears that the judge concluded that DC Whiteway’s evidence should have been the subject of a bad character application, and he directed the prosecution to make such an application, which it then did. 15. It was common ground that the Recorder was not bound by the views expressed by the judge at the first trial. The prosecution made the application to her on two alternative bases. Its principal contention was that the evidence identified in the application, including that from DC Whiteway, fell outside the definition of bad character evidence in section 98 of the CJA 2003 as it went directly to motive/intention, and thus had to do with the alleged facts of the offence with which the appellant was charged. Alternatively, the-prosecution contended (essentially on the same basis) that this evidence was admissible under section 101(1)(d) of the CJA 2003. It was said that the appellant’s intention was an important matter in issue between the prosecution and the defence; evidence of his gang related activities was relevant to his intention to use the gun in connection with such violent disputes; and the images showed he had more than an interest in just delivering firearms. 16. Section 98 of the CJA 2003 provides that: “References in this Chapter to evidence of a person’s “bad character” are to evidence of, or 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.” 17. Section 101 of the CJA 2003 provides in part that: “(1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if – … (c) it is important explanatory evidence, (d) it is relevant to an important matter in issue between the defendant and prosecution. … (3) The court must not admit evidence under subsection 1(d)…if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” (4) On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject matter of the offence charged.” 18. In a full and careful ruling the Recorder concluded that the evidence which the prosecution wished to adduce had to do with the alleged facts of the offence with which the appellant was charged, because it went to intent, which was an element of the offence in Count 1. But she said, for the avoidance of doubt, if she had had to consider admissibility under Section 101(1)(d), the same evidence would have been admissible under those provisions since it went to an important issue in the case between the prosecution and the defence, namely that identified by the prosecution. 19. In the course of her ruling, the Recorder expressed the view, that there was no practical difference in the route to admissibility and that both routes (under section 98 and section 101(1)(d)) had safeguards to protect fairness to a defendant in any trial. 20. The single judge thought, as we have indicated, that this meant the Recorder specifically envisaged giving a bad character direction (of some description) in the summing-up. It seems clear from her ruling however, that the Recorder was merely indicating that whichever route to admissibility was used, the fairness of admitting the evidence had to be considered, either under section 78 of the Police and Criminal Evidence Act 1984 (PACE) if the evidence had to do with the facts of the case, or under section 101(3) of the 2003 Act if it was bad character evidence as defined by section 101(1)(d), in circumstances where the defence objected to its admissibility. 21. Having concluded that the evidence was admissible outside the confines of the 2003 ‘gateways’, the Recorder went on to consider whether each specific item of evidence which the prosecution wished to adduce should be excluded on grounds of fairness, applying the test in section 78 of PACE. 22. In broad terms, she permitted evidence of background knowledge of gangs in the area; and in particular, evidence of a long-running dispute between two gangs – the Lambeth GAS (Gangsters Always Shoot) gang, and TN1, which had manifested itself in violence. She permitted evidence that the appellant was himself a member or associate of the TN1 gang. She excluded however what was described as “association evidence” from patrolling officers, of anti-social behaviour by the appellant with others, who it was suggested were gang members (this excluded all crime reports, apart from one dated 2 March 2012). Evidence that the appellant was the victim of a (gang) attack on 2 March 2012 where he was stabbed 28 times by a number of assailants with knives was permitted, as was evidence of the conviction of one of the attackers (a man called Ryan, an associate or member of the GAS gang) for the attempted murder of the appellant, at a trial conducted without the appellant’s co-operation. 23. The Recorder also permitted the prosecution to rely on photographs found on the appellant’s phone. In her view, this (photographic) evidence, which we shall describe in more detail shortly, was capable of assisting the prosecution to establish that the appellant was an associate or gang member and had an interest and intention in relation to firearms which went beyond that of a mere courier. Though the defence made the point that the photographs were not “first generation” photographs, but came from others, the Recorder said they were on the appellant’s phone and had not been deleted, and such points as the defence wished to make about this could be made to the jury 24. However the Recorder excluded evidence linking the appellant to a man called Myles Hedley, then awaiting trial for firearms offences and attempted murder (the appellant’s fingerprints had been found on Hedley’s car at the time), and three text messages sent from the appellant’s phone on the 10 January 2014 i.e. on the day of his arrest, culminating in one saying: “Your [sic] dead”. The Recorder concluded that though clearly to do with the facts of the offence, it would be unfair to the defence to admit those texts, because the prosecution had only notified the defence of their intention to rely on them on the first day of the trial before her; and the defence had not therefore had the opportunity to serve evidence as to whom those messages had been sent. The evidence in more detail 25. The appellant lives at an address in South London, Woodvale Walk SE 27, in the area of the Poynders Gardens Estate. On 10 January 2014, he hired a minicab from a minicab office in Selhurst Park, Whitehorse Lane, SE 25 using a false name. A statement from the minicab driver was obtained. He said that he had collected the appellant from the minicab office. During the journey in the cab, the appellant was speaking on his mobile phone telling someone that he was going to Tulse Hill. When he got to Tulse Hill, the minicab driver was given directions by the appellant to go on to the Tulse Hill Estate. We have already described the circumstances of the arrest and what was found on the appellant. When the police officers tried to stop the minicab, the appellant attempted to get out of the rear door and to run off. 26. The gun was examined by a firearms expert, who found it was Japanese made Miroku 12 bore ‘over and under’ shotgun. The wooden stock and barrels had all been shortened, and clear adhesive tape had been wrapped around the grip and action of the gun. White masking tape had also been wrapped round the grip. 27. The gun was in poor condition, but in working order. No fingerprints were found on the gun or the ammunition. Mixed DNA profiles were recovered but were unsuitable for testing. There was no evidence that any attempt had been made to discharge the cartridges in the shotgun; the two 12 gauge cartridges were unfired and live. 28. When the appellant was searched, he was found to be in possession of a black cap, a pair of gloves which were in his pocket, £210 cash and two mobile phones, one of which was a smartphone. 29. The images recovered from the smartphone which were before the jury were as follows. Four showed the appellant posing as if holding a gun; and two showed him posing as if he was holding a sawn-off shotgun (in one of them, the appellant and another unidentified male were on the Tulse Hill Estate wearing facemasks covering the bottom half of their faces). Three others showed images of firearms. One of these showed (according to the expert evidence of Mr O’Rourke, the prosecution’s firearms expert) a disassembled Winchester model 1400 self-loading 12-bore shotgun. Another showed a semi-automatic shotgun. Another showed a set of black body armour, a pair of black shoes, a black backpack and a semi-automatic rifle. 30. Other images included a number relating to a young man called Zac Olumegbon, who was a friend of the appellant. He was a member of the TN1 gang, and had been murdered in 2010 when he was 15, in a gang dispute between the TN1 gang, and the Lambeth GAS Gang. The images included one of Olumegbon himself, one of his funeral flowers (spelling out the name “Zac”) and one of the logo of the TN1 gang. 31. The third strand of evidence came from DC Whiteway. This covered the matters encompassed by the Recorder’s ruling, as set out at para 22 above. DC Whiteway said the appellant was affiliated with a gang called the New Park Gunners, which in turn was affiliated with the larger and dominant gang, TN1. TN1 and its affiliated gangs, including the New Park Gunners, operated out of the Tulse Hill Estate, the New Park Road area and the Clapham Park Estate. He said the GAS gang operated from areas north of Brixton, including Myatts Field Estate, the Angell Town Estate, and the Loughborough Estate. He said the long-running feud between TN1 and the GAS gang, which had been going on since at least 2005, had resulted in a number of assaults, stabbings and murders, including the attempted murder of the appellant which occurred on 2 March 2012. 32. DC Whiteway also said that this was not the only time the appellant had been subject to attack; and there had been at least three other occasions when he had been attacked. 33. Ms Ong submitted that the jury should not have been told this, as albeit the incidents formed part of the prosecution’s bad character application, the Recorder had not expressly ruled that evidence about them was admissible. However, in our view there is no substance in this point. We do not have a transcript of DC Whiteway’s evidence, and there is a difference between Ms Ong and Mr Millett about how that evidence emerged. We are prepared to accept that it did so in re-examination. Be that as it may, it was not suggested at trial that the prosecution had gone beyond the ruling of the Recorder, and there was only the briefest reference to the assaults in the summing-up in a manner which did not connote they were gang-related, and which was not objected to. We do not therefore consider the evidence prejudiced the position of the appellant or adds anything of substance to the appeal over and above the points which we address at paras 35 and following below. 34. As we have said, the appellant denied in his defence statement that he was a member of any gang. It was suggested in cross-examination of DC Whiteway that gangs used young members as couriers; and it was mooted that the appellant might have been a mere courier. It was also put to DC Whiteway that living on estates in South London meant one would invariably come into contact with gang members. Inevitably however, the extent to which the prosecution evidence from DC Whiteway or on any other issue, could properly be challenged, was limited by the absence of any evidence to contradict it from the defence. Discussion 35. There was no dispute before the Recorder about the admissibility in general terms of expert evidence on “gang related issues” and we were not addressed by reference to the questions subsequently considered by the Privy Council in Myers, Brangman and Cox v The Queen (Bermuda) [2015] UKPC 40 . 36. As we have indicated, Ms Ong renews her first ground of appeal, namely that the Recorder was wrong to characterise the evidence which was the subject of the bad character application as evidence to do with the facts of the case. She also submits that howsoever the evidence came to be admitted, the Recorder should have given the jury a bad character direction about it in the course of her summing-up. 37. In agreement with the single judge, we would refuse leave on this first ground. We think the gang-related evidence which the jury heard was appropriately characterised as evidence to do with the facts of the case, because it was directly relevant to the appellant’s motive for having the gun and his intention in possessing it, and admissibility was not therefore required to be determined by reference to one of the 2003 Act ‘gateways’. 38. In R v Sule [2012] EWCA 1130, a renewed application for permission to appeal against the defendant’s conviction for murder was refused. The principal ground of appeal was that evidence of three incidents of violence between rival gangs which had taken place in the three months preceding the murder was inadmissible bad character evidence, and had been wrongly admitted as evidence to do with the facts of the case. 39. In rejecting that ground as not arguable, Stanley Burnton LJ, giving the judgment of the court, said this: “12. In our judgment, the evidence of the three incidents was evidence that was alleged to do with the evidence of the murder in question. The words of the statute are straightforward, and clearly apply to evidence of incidents alleged to have created the motive for the index offence. Indeed, where the evidence is reasonably relied upon for motive, it would be irrational to introduce a temporal requirement. Take these examples. A man is wounded in a shooting. He is hospitalised for six months. On discharge, he is alleged to have shot the man who is alleged to have been his attacker. In another case, the reprisal is the day after the first attack. In the second case, the evidence of the first attack is not bad character for the purposes of s.98, in the first it is. 13. In our judgment, the judge's decision was clearly right, and we pay tribute to his clear and cogent ruling. Incidents (1) and (3) gave rise to the alleged motive for the murder that was the subject of the indictment. Incident [(2)] […] was part of the pattern: as was put by Mr Price, part of a series of "tit for tat" incidents. Each of them had to do with the others, as had the index offence. They were not merely relevant: they were intrinsic to the prosecution's case. 14 We add that, given these four incidents took place within a period of three months, if there were a temporal requirement in s.98(a), we would have held it to be satisfied.” 40. In Lunkulu and Ors v R [2015] EWCA Crim 1350 , the appellants were convicted of a murder which took place in the context of a feud between two Turkish gangs, involved in drug dealing. The judge permitted the prosecution to rely on evidence of earlier incidents of “tit for tat” violence between the two gangs, including the conviction of one of the defendants, Arslan, for the attempted murder of two members of the opposing gang, as evidence to do with the facts of the offence under section 98 of the CJA 2003. After citing the passage from Sule to which we have referred, Fulford LJ, giving the judgment of the court, said this at para 99: “The circumstances described in Sule are markedly similar to the present case, and the reasoning in our view is entirely apposite. We consider that the shooting of Arslan on 31 July 2009 and the evidence of the attempted murders of Coban and Demir on 30 September 2009 [Arslan was convicted of those offences] was admissible because it was relevant to the facts of the present case. Although the prosecution could prove the charges without introducing this material, it fell within section 98(a) because this evidence of misconduct was directly relevant to it. These events were closely, indeed inextricably, linked to the facts of the present murder. As described above, what otherwise might have been viewed as a random or inexplicable shooting, was on the prosecution case a vital part of the ongoing feud between two Turkish drug gangs in North London – the Tottenham Turks and the Hackney Turks – and most particularly the series of tit-for-tat stabbings and shootings in the Autumn of 2009. We agree with Stanley Burnton LJ that section 98(a) includes no necessary temporal qualification, and it applies to evidence of incidents whenever they occurred so long as they are to do with the alleged facts of the offence with which the defendant is charged. That will involve a highly fact-specific question.” 41. Looking at the facts of this case, the issue for the jury on Count 1 was one of intention. The prosecution had to prove, as the Recorder correctly directed the jury, that the appellant had the intention of using the gun himself, or that he intended to enable another to use it as and when the occasion arose to endanger life. Whether he had such an intention was a matter which could be inferred from a number of strands of evidence. One of those strands was the nature of the gun itself, and the circumstances of its finding. The weapon had been shortened, which enabled it to be concealed when carried, and used and handled more easily than if it was in its full length. It was common ground that had the firearms and ammunition been used against a human, it would have had serious or fatal results. Shortening it too, enabled it to have a wider spread at a shorter distance than if in its proper form, potentially increasing its lethal force. The case for the prosecution was that when such a weapon was possessed in such a form in urban South East London, and taken on to an estate in Tulse Hill, in the way this one was, the compelling inference was that it was not for shooting pigeons or other wild life in South East London; but was for use to endanger human life – as and when the occasion arose – and the appellant knew that is what is was for and intended such use. 42. Another strand was the gang-related evidence, which went directly to both intention and to motive. Motive could be inferred from the evidence of the murderous attack on the appellant, and his friend Zac (whose image he still held on his mobile phone) in the context of the violent and long-running feud between the TN1 gang, with which the appellant was “associated”, and the GAS gang. The striking gun-related images found on the appellant’s phone were also admissible to show the appellant had an interest in guns which went beyond being a mere courier. Taken together, this evidence, if the jury accepted it, provided a proper evidential basis for the inference that the appellant had the requisite intent in relation to the use of this gun in gang-related violence. 43. In the event, the Recorder’s directions to the jury were faithful to her ruling. In summary the jury were told in simple terms that the gang-related evidence, if they accepted it, was part of the evidence from which they were entitled to infer intent; but even if they were sure of the appellant’s link to gangs, they still had to consider whether he may merely have had possession of the gun with intent to supply it, for the opportunity to endanger life, and that if they concluded that may be the position, this was insufficient for a guilty verdict. 44. The Recorder had indicated in her ruling, as we have said, that it was her view that had it not come in as evidence to do with the facts of the case, she would have permitted this evidence to be admitted under section 101(1)(d) of the CJA 2003. It did not follow, however, that she was then required to treat the evidence for the purposes of summing-up as though it had been admitted pursuant to that gateway. Indeed as Mr Millett for the Crown points out, after the Recorder’s ruling, the trial proceeded on the footing, and only on the footing, that the evidence was to do with the facts of the case. 45. There is a difference between counsel as to whether the issue was raised again after the ruling, in the discussions of law that took place before speeches and the summing-up. Mr Millett says his clear recollection is that nothing whatsoever was said about such a direction and points out that the suggestion that something was said, was made for the first time at the hearing before us. Ms Ong says her stance then was a negative one, in that she indicated she did not consider the defence were entitled to any form of bad character direction because the evidence had been admitted pursuant to section 98 of the CJA 2003. The resolution of this issue is not however material to our conclusions. It is clear that the Recorder was not invited to give the jury the sort of direction (identified in R v Lowe [2007] EWCA Crim 3047 for example) that would have been appropriate if the evidence had been admitted under section 101(1)(d) of the CJA 2003 either before the summing-up or at its conclusion, before the jury retired. And as we have said, the absence of such a direction did not feature as a discrete ground of appeal, until the issue was raised by the single judge in the way we have described. 46. We quite accept that had the Recorder decided to direct the jury that they could also use this evidence as though it had been admitted as ‘bad character’ evidence under the relevant gateway, then a suitably tailored Lowe direction would have been required; and we note that this two-pronged approach was taken by the judge in Lunkulu and Ors : see para 93. We also accept that there may be cases where the jury should be told to be careful not to make unwarranted assumptions about a defendant because of his or her reprehensible conduct admitted pursuant to section 98 of the CJA 2003. Whether such a direction will assist the jury or should be given as a matter of fairness to a defendant will depend on the facts. 47. However, we do not think the absence of such a direction can be criticised here; or that this leads to the conclusion that the appellant’s conviction was unsafe. Looking at the matter realistically, there were only two possible explanations for the appellant taking a sawn-off shotgun concealed on his body at night, onto the Tulse Hill Estate. He was either a (mere) courier of the gun, or he intended to enable another to use it as and when the occasion arose to endanger life. This was a straightforward and simple case; and in our view, the parties and the Recorder in her directions to the jury, adopted an appropriately straightforward and focused approach to it at the trial. In short, given the specific purpose for which the disputed evidence was admitted, and the Recorder’s directions which were properly tailored to that purpose, there was no prospect of the jury treating the evidence as generally prejudicial and no more by way of direction was required. 48. The case against the appellant was a strong one. We are satisfied his conviction is safe. It follows that the appeal against conviction is dismissed. Sentence 49. The nub of the appeal as Ms Ong puts it, is that the sentence of 11 years’ detention was too long having regard to the appellants’ acquittal on Count 3. It is said in particular that the Recorder was not entitled to reject the defence assertion in mitigation that the appellant should be sentenced as a “courier plus” without giving cogent reasons for doing so. 50. We do not accept these submissions. The appellant was not of good character, and though his convictions related to a time when he was still a juvenile, he had two convictions for robbery and two convictions for possession of knives (in 2009 and 2010). The Recorder accepted that the gun was not loaded or discharged, and she made it plain in her sentencing remarks that the appellant was not being sentenced for the ammunition found because he was acquitted on that count. However, she had heard the evidence at trial, and was not obliged to put on blinkers when it came to sentence. She said, and was entitled to say in our view, that there was an intention for this gun to be used in a gang-related dispute, and that it was indeed fortuitous that the police stepped in when they did. She also paid particular regard to Attorney General’s Reference (Nos 4, 5, 6, 7 and 8 of 2014) (R v Deacon) EWCA Crim 651; [2014] 2 Cr. App. R. (S) and ors, where this court said as follows: “Whatever the rightness of that observation made at that time, it simply does not reflect the attitude required to be taken by the courts now. Even in the last 12 years things have moved on considerably given the prevalence of and concerns about the carrying and use of firearms, as indeed Lord Judge has made so clear. We do not think that that particular case should any more be cited or relied upon as authority for any general proposition that a range of seven to eight years still is appropriate for offending of this particular kind. Thus, in Attorney General’s Reference No.6 of 2011 (R. v Rollings) [2012] 2 Cr. App. R. (S.) 67, a starting point of 11 years was taken by the Court of Appeal on a Reference as appropriate as being “the very least possible sentence” on the particular facts of that case, where the offender was in possession of a gun loaded with live and expanding ammunition. There was considerable emphasis before us today on a decision of another constitution of this court in the case of R. v Sugulle [2013] 2 Cr. App. R. (S.) 61 (p.389). There a starting point of 15 years, reduced to 10 years to allow for an early plea, was held to be appropriate where the accused, who had no previous convictions for any relevant firearms offences, was found in possession of a loaded gun, which gun had been used in a previous shooting relating to gangs some four days earlier. It may however be noted that in Sugulle there had been no findings as to any particular gangland context in which the accused was found to be in possession of the loaded gun. We further note that in Sugulle it was made clear that the previous decision in the Attorney General’s Reference , Rollings case should not itself be taken as a rigid guidelines case as to the appropriate sentencing range for offending of this kind. ” 51. The Recorder was conscious of the appellant’s relatively young age. He was only 20 years’ old at the time of sentence, and the sentence was undoubtedly a severe one for someone of that age. However she had the benefit of written submissions from Ms Ong and Mr Millett on the relevant facts and the law, and her sentencing remarks were full and well-reasoned. We do not consider the sentence was either manifestly excessive or wrong in principle. 52. It follows that the appeal against sentence is also dismissed.
{"ConvCourtName": ["Central Criminal Court", "Crown Court at Inner London"], "ConvictPleaDate": ["7 October 2014"], "ConvictOffence": ["possessing a firearm without authority", "simple possession of cannabis", "possessing a firearm with intent to endanger life"], "AcquitOffence": ["possessing ammunition with intent to endanger life"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Inner London"], "Sentence": ["11 years’ detention in a Young Offenders’ Institution"], "SentServe": ["No separate penalty"], "WhatAncillary": ["data not available"], "OffSex": ["his"], "OffAgeOffence": ["19"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["appellant lives at an address in South London"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["firearms expert", "searched", "prosecution witness", "photographs found on the appellant’s phone", "followed by police", "appellant’s phone", "DNA profiles"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["appellant knew that is what is was for and intended such use.", "intention"], "MitFactSent": ["relatively young age"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["conviction with limited leave", "sentence"], "AppealGround": ["either manifestly excessive or wrong in principle.", "First, that the judge was wrong to rule that the evidence in question was to do with the facts of the case", "Secondly, that the judge was wrong to rule (in the alternative) that it was admissible as bad character", "conviction was unsafe in all the circumstances, given the prejudice caused to the appellant"], "SentGuideWhich": ["98 of the Criminal Justice Act 2003", "section 16 of the Firearms Act 1968"], "AppealOutcome": ["dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["We do not consider the sentence was either manifestly excessive or wrong in principle.", "case against the appellant was a strong"]}
{"ConvCourtName": ["Central Criminal Court", "Crown Court At Inner London"], "ConvictPleaDate": ["2014-10-07"], "ConvictOffence": ["simple possession of cannabis", "possessing a firearm without authority", "possessing a firearm with intent to endanger life"], "AcquitOffence": ["possessing ammunition with intent to endanger life"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Inner London"], "Sentence": ["11 years’ detention in a Young Offenders’ Institution"], "SentServe": ["Concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["19"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Don't know"], "VictimType": ["Don't Know"], "VicNum": ["Don't know"], "VicSex": ["Don't Know"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Police evidence", "Forensic", "firearms expert", "Digital", "prosecution witness"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["appellant knew that is what is was for and intended such use.", "intention"], "MitFactSent": ["relatively young age"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["sentence", "conviction with limited leave"], "AppealGround": ["either manifestly excessive or wrong in principle.", "conviction was unsafe in all the circumstances, given the prejudice caused to the appellant", "Secondly, that the judge was wrong to rule (in the alternative) that it was admissible as bad character", "First, that the judge was wrong to rule that the evidence in question was to do with the facts of the case"], "SentGuideWhich": ["98 of the Criminal Justice Act 2003", "section 16 of the Firearms Act 1968"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["case against the appellant was a strong", "We do not consider the sentence was either manifestly excessive or wrong in principle."]}
380
Case No: 201900694/A4 Neutral Citation No: [2019] EWCA Crim 1281 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday 11 July 2019 B e f o r e : LADY JUSTICE NICOLA DAVIES DBE MR JUSTICE PHILLIPS MR JUSTICE JULIAN KNOWLES R E G I N A v DAVID ALLEN 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 S Evans appeared on behalf of the Appellant Miss F Wilmott appeared on behalf of the Crown J U D G M E N T (Approved) LADY JUSTICE NICOLA DAVIES: 1. On 16 January 2019 in the Crown Court at Liverpool, the appellant was convicted of three offences. On 8 February 2019, he was sentenced by His Honour Judge Watson QC, the trial judge, as follows. • Counts 1 and 3, assault of a child under 13 by penetration, a special custodial sentence under section 236A of the Criminal Justice Act 2003 (“ the 2003 Act ”) of 11 years and six months, comprising a custodial term of 10 years and six months and an extended licence of one year to run concurrently with the sentence on Count 2; • Count 2, rape of a child under 13, a special custodial sentence under section 236A of the 2003 Act of 14 years, comprising a custodial term of 13 years and an extended licence of one year, to run consecutively to the sentence imposed on 12 November 2014 in the Crown Court at Warrington. 2. The appellant appeals against sentence by leave of the single judge. 3. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, no matter relating to the victim 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. The facts 4. In 2011 the appellant was in a relationship with the mother of the victim, BB. In 2017, when BB was 14, she disclosed that when she was younger she had been sexually assaulted by the appellant on three occasions on the sofa in the living room. The first assault occurred when BB went downstairs to get a drink, the appellant was in the kitchen, he was drunk. He digitally penetrated BB’s vagina causing pain. The appellant stopped when he heard someone coming and told BB not to tell anyone because she would get into trouble. About a week later the appellant went upstairs and told BB to go downstairs. He asked her if she wanted to watch a film before vaginally raping her. About a month later the appellant digitally penetrated BB’s vagina when other members of the family were upstairs. The appellant and BB’s mother separated a relatively short time after the final offence. BB has not seen him since. 5. BB thought the offending occurred in 2013 when she was 10 or 11. At trial there was material before the court which indicated the likely year to have been 2011; BB was nine in July of that year. 6. In 2013 the appellant was arrested and remanded in custody for an offence of sexual activity with a female with a mental disorder by penetration. The victim was his 20-year-old natural daughter. She lacked capacity to consent due to a learning disability. The appellant pleaded guilty and at Warrington Crown Court was sentenced to 14 years’ imprisonment. He was also sentenced in respect of ten offences of possession of extreme pornographic images (bestiality) to a term of four months’ imprisonment on each count to run concurrent to each other and to the 14-year sentence. 7. Following the disclosure by BB, the appellant was interviewed by the police in 2017 and denied the allegations. 8. In sentencing the appellant at Liverpool Crown Court, the judge was provided with the 2014 Pre-Sentence Report prepared for the purpose of the Warrington Crown Court offences and an addendum to the report to take account of the offences involving BB. The 2014 report did not assess the appellant as being dangerous. The 2017 report assessed the appellant as posing a high risk of causing serious harm to children, particularly girls, through the commission of sexual offences. It stated that the appellant was able to exploit his relationship with BB’s mother in that it allowed him to target BB as there were occasions when he was alone with her. 9. In sentencing the appellant, the judge did so upon the basis that BB would have been eight or nine at the time of the commission of the offences. The judge accepted that the appellant had told BB not to tell anyone. Following the first offence, the appellant asked BB if she had told anyone and he reassured her that she had done the right thing by not telling anyone, saying she would get into trouble. The judge found that the impact upon BB was very significant in that it changed her behaviour because it put her in a vulnerable position in relation to other adult males; the evidence being that she had had sexual contact with an older male who had been convicted of sexual offences in relation to her. The judge found that the impact of the appellant’s offending resulted in severe psychological harm to BB and even if that was not correct it represented such a seriously aggravating feature so as to move the offending from Category 3A to 2A in the relevant Sentencing Council Guidelines. 10. The judge noted that having committed the offences on BB in 2014, he committed offences against his own daughter and was presently serving a 14-year sentence. 11. The judge concluded that the appellant is dangerous. He found that the appellant is an offender of particular concern. As such a sentence pursuant to section 236A of the 2003 Act as amended was appropriate. The judge was satisfied that all three offences were Category 2A offences within the Sentencing Council Guidelines: Category 2 because it was severe psychological harm, the aggravating features being that the appellant told BB not to tell anyone and his consumption of alcohol. 12. Within the Sentencing Council Guidelines for the offence of rape the starting point is 13 years’ imprisonment. For the offences of assault by penetration the starting point is 11 years’ imprisonment. The judge took account of the principle of totality. He stated that were it not for the fact that the appellant was already serving 14 years, the custodial element of the sentence would be 16 years on Count 2 and a lesser offence on Counts 1 and 3. To reflect totality, the judge made a downward adjustment of the custodial term from 16 to 13 years but stated that had to be expressed as a 14-year sentence because of the extended licence of one year under section 236A . The 2014 sentence 13. The respondent has provided the following detail for the purpose of this appeal. The appellant pleaded guilty to all offences. The circumstances of the offence in which the appellant’s daughter was the victim (SG) were that between 1 October 2012 and 30 November 2013 the appellant had vaginal sexual intercourse with her. SG was assessed as having a mental disorder in the form of a moderate learning disability. As a result she did not have the capacity to consent to sexual activity. SG was assessed as extremely vulnerable, she lived in supported accommodation. The appellant had not been present in his daughter’s life between the ages of 12 and 18, but was re-introduced to her when she became an adult. He was aware of her learning disability. They referred to each other as father and daughter. 14. As a result of the sexual intercourse between the appellant and SG, she became pregnant. SG gave birth to a daughter. The child has been removed from her care. SG said the sexual intercourse had taken place on several occasions. She thought that her father would stop loving her if she did not agree to have sex with him. 15. In a report dated 27 October 2014, a consultant forensic psychologist described how SG’s disability meant that she has very little personal resilience or coping ability. The psychologist concluded that the effect on SG of the appellant’s offending would have life-long consequences. They would be ameliorated but not undone by long-term care and support in order to try and repair some of the psychological damage caused by the perception that SG had lost her father for a second time and had lost her baby. Grounds of appeal 16. The essence of the appeal is that the sentence passed in 2019, which is to run consecutively to the 2014 sentence, results in a term of imprisonment of 27 years. The Sentencing Council Guidelines for Offences Taken into Consideration and Totality state that the approach to be taken where an offender is serving a determinate sentence in respect of offences committed before the sentence to be imposed is that the court is to consider what the sentence length would have been if the court had dealt with the offences at the same time and ensured that the totality of the sentence was just and proportionate in all the circumstances. If it is not, an adjustment should be made to the sentence imposed for the latest offence. 17. The appellant does not contend that His Honour Judge Watson QC failed to follow that approach. The submission is that he failed to apply it properly in that the adjustment made was insufficient to ensure that the totality of the sentence was just and proportionate. The respondent’s submissions 18. It is the respondent’s case that when all relevant features of both sets of offending are taken into consideration the total effective sentence of 27 years is not manifestly excessive. These were distinct sets of offences committed at least a year apart with little factual similarities, save that they were serious sexual offences committed against particularly vulnerable individuals. Consecutive sentences were clearly appropriate and the judge made an appropriate adjustment to reflect totality. Discussion and conclusion 19. The 2019 offences were committed at least a year before the offence involving the appellant’s biological daughter. The 2019 offences took place in the victim’s home where the appellant was staying. On at least one occasion he was drunk. The appellant took advantage of his relationship with BB’s mother and of BB’s young age. He gave no thought to the consequences for BB. There have been serious consequences which have made her vulnerable to further sexual exploitation by an older male. The judge correctly found that there was severe psychological harm and identified appropriate aggravating features. The judge placed Count 2 within Category 2A of the Sentencing Council Guidelines, a starting point of 13 years’ imprisonment and a range of 11 to 17 years. No issue is taken with this categorisation. Aggravating features which entitled the judge to increase the starting point from 13 years to 16 years included the age of the victim, the separate offences of assault by penetration, location, the victim was warned not to tell anyone and on one occasion the appellant had been drunk. 20. The sentence of 13 years’ imprisonment plus the one-year extension was imposed to reflect the totality of the three offences committed against a young girl. She is the daughter of the woman with whom the appellant was in a relationship, as a result of which he was able to stay at the home of the victim and was able, on occasion, to be alone in a room with her. He took full advantage of that situation in committing the three offences. We accept that his offending has had a significant impact on his victim which has led to her being exploited sexually by another older man. 21. It is clear that the judge had in mind the principle of totality. We accept that the only issue is whether there was a sufficient downward adjustment to reflect what was said in the Sentencing Council Guidelines, namely consideration should be given to what sentence would have been passed if all sentences were before the same court and dealt with at the same time. The 2014 sentence and the 2019 sentence are factually separate in respect of the offences but together demonstrate the gravity of the offending of this appellant in respect of two vulnerable young females. Also, they demonstrate the significant risk which he poses to all young girls. 22. We do not seek to minimise the gravity of the appellant’s offending, still less its impact upon either of its victims. However, we have concluded that the totality of the sentence passed in Liverpool Crown Court in February 2019 upon Count 2 which resulted in a total 27-year sentence is manifestly excessive. Applying the principle of totality, we quash the sentence of 13 years’ custody with a one-year extension on Count 2 and substitute for it a sentence of 10 years and six months’ custody, with a one-year extension, pursuant to 236A of the 2003 Act . That sentence is to run consecutively to the sentence imposed on 12 November 2014 in the Crown Court at Warrington. To this extent, the appeal is allowed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]
{"ConvCourtName": ["Crown Court at Liverpool"], "ConvictPleaDate": ["16 January 2019"], "ConvictOffence": ["assault of a child under 13 by penetration", "possession of extreme pornographic images (bestiality)", "rape of a child under 13"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["remanded in custody"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Liverpool", "Crown Court at Warrington", "Liverpool Crown Court"], "Sentence": ["14 years, comprising a custodial term of 13 years and an extended licence of one year", "11 years and six months, comprising a custodial term of 10 years and six months and an extended licence of one year to run concurrently with the sentence on Count 2;", "four months’ imprisonment on each count to run concurrent to each other and to the 14-year sentence"], "SentServe": ["consecutively", "concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["victim’s home where the appellant was staying"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["drunk"], "OffVicRelation": ["his 20-year-old natural daughter", "appellant was in a relationship with the mother of the victim"], "VictimType": ["the victim, BB"], "VicNum": ["data not available"], "VicSex": ["she"], "VicAgeOffence": ["20-year-old", "eight or nine"], "VicJobOffence": ["eight or nine"], "VicHomeOffence": ["she lived in supported accommodation"], "VicMentalOffence": ["learning disability"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["report dated 27 October 2014, a consultant forensic psychologist", "she disclosed that when she was younger she had been sexually assaulted"], "DefEvidTypeTrial": ["denied the allegations."], "PreSentReport": ["high risk of causing serious harm to children, particularly girls, through the commission of sexual offences"], "AggFactSent": ["vulnerable position", "presently serving", "severe psychological harm", "consumption of alcohol.", "committed offences against his own daughter", "separate offences", "took place in the victim’s home"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence"], "AppealGround": ["submission is that he failed to apply it properly in that the adjustment made was insufficient"], "SentGuideWhich": ["section 236A of the Criminal Justice Act 2003 (“the 2003 Act”)", "principle of totality", "The Sentencing Council Guidelines for Offences Taken into Consideration and Totality", "Sexual Offences (Amendment) Act 1992", "Sentencing Council Guidelines: Category 2"], "AppealOutcome": ["we quash the sentence of 13 years’ custody with a one-year extension on Count 2 and substitute for it a sentence of 10 years and six months’ custody, with a one-year extension"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["totality of the sentence passed in Liverpool Crown Court in February 2019 upon Count 2 which resulted in a total 27-year sentence is manifestly excessive."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["Crown Court At Liverpool"], "ConvictPleaDate": ["2019-01-16"], "ConvictOffence": ["possession of extreme pornographic images (bestiality)", "rape of a child under 13", "assault of a child under 13 by penetration"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Liverpool Crown Court", "Crown Court At Warrington", "Crown Court At Liverpool"], "Sentence": ["14 years, comprising a custodial term of 13 years and an extended licence of one year", "11 years and six months, comprising a custodial term of 10 years and six months and an extended licence of one year to run concurrently with the sentence on Count 2;", "four months’ imprisonment on each count to run concurrent to each other and to the 14-year sentence"], "SentServe": ["Combination"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Yes-drinking"], "OffVicRelation": ["Relative", "Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["data not available"], "VicSex": ["All Female"], "VicAgeOffence": ["20", "8-9"], "VicJobOffence": ["Child"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Learning/developmental"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Expert report", "Victim testimony"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["High risk of harm"], "AggFactSent": ["Location", "separate offences", "consumption of alcohol.", "presently serving", "committed offences against his own daughter", "severe psychological harm", "Vulnerable victim"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence"], "AppealGround": ["Learned judge failed to properly apply Totality Principle"], "SentGuideWhich": ["The Sentencing Council Guidelines for Offences Taken into Consideration and Totality", "principle of totality", "Sentencing Council Guidelines: Category 2", "Sexual Offences (Amendment) Act 1992", "section 236A of the Criminal Justice Act 2003 (“the 2003 Act”)"], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["totality of the sentence passed in Liverpool Crown Court in February 2019 upon Count 2 which resulted in a total 27-year sentence is manifestly excessive."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
262
Case Nos: 2000/07409/D3 2001/00265/D3 , 2001/00083/D3 2001/01211/D3 , 2001/01992/D3 2001/00371/D3 , 2001/01378/D3 2001/01284/D3 Neutral Citation Number: [2003] EWCA Crim 3182 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Thursday 30 October 2003 Before : THE VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) (LORD JUSTICE ROSE) MR JUSTICE GAGE and MR JUSTICE PENRY-DAVEY - - - - - - - - - - - - - - - - - - - - - REGINA - and - PAUL LOWE ANTHONY PARKINSON MARTIN DESMOND NEARY MARK ANDREW DAVEY ANTHONY ELLIS STEPHEN PAUL SMITH CARL EMERSON FREDERICK BRIAN HILLHANDS and JASON GILES SMITH - - - - - - - - - - - - - - - - - - - - - ( Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Lord Thomas QC and Mr D. Williams appeared on behalf of Lowe, Mr P.D. Batty QC and Mr J. Smith appeared on behalf of Parkinson, Mr M. Hubbard QC and Mr D Williams appeared on behalf of Neary, Mr R. Holland appeared on behalf of Davey, Mr J. McDermott, QC appeared on behalf of Ellis Mr P.J. Martin appeared on behalf of S.P. Smith, Mr R. Burgess appeared on behalf of Frederick, Mr J. Rose appeared on behalf of Hillhands, and Miss J.P. Forsyth appeared on behalf of J.G. Smith Mr D. Turner QC & Mr R. Dudley appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - Judgment The Vice President : 1. On 4 th December 2000, following a twelve week trial at the Liverpool Crown Court before His Honour Judge Maddison, the appellants Lowe, Neary, Ellis and Hillhands and the applicant Frederick were convicted on one count of conspiracy to supply controlled drugs contrary to Section 1(1) of the Criminal Law Act 1977 . The following day the appellants Parkinson and Davey were convicted on the same count. On 5 th September 2000 at the same court before His Honour Judge George the appellant Stephen Smith pleaded guilty to the same count. On 4 th September 2000 at the same court before His Honour Judge Maddison the appellant Jason Smith pleaded guilty to one count of possessing a controlled class A drug with intent to supply contrary to Section 5(3) of the Misuse of Drugs Act 1971 and one count of possession of a controlled class B drug with intent to supply contrary to the same sub-section. He pleaded not guilty to a count of conspiracy to supply controlled drugs contrary to Section 1(1) of the Criminal Law Act 1977 and that count was ordered to remain on the file on the usual terms. 2. On 5 th February 2001 the appellants apart from Stephen Smith were sentenced to imprisonment as follows: Lowe 24 years, Parkinson 21 years, Neary 16 years, Davey 16 years, Ellis 16 years, Hillhands 11 years and Jason Smith 16 years. On 2 nd March 2001 Stephen Smith was sentenced to 11 years imprisonment. On 26 th October 2001 the applicant Frederick was sentenced to 14 years imprisonment, and a drug confiscation order in the sum of £14,095.23 was made against him with twelve months consecutive in default of payment by 20 th June 2002. Four co-accused, James Christopher Neary, Harry Anthony Davey, Desiree Coker and Thomas Parker were each acquitted of the conspiracy count. A sixth co-accused, Daniel English, pleaded guilty to one count of possession of controlled drugs, namely 3 kilograms of heroin and 10,000 ecstasy tablets with intent to supply in November 1999 and was sentenced, by another judge, to 9 years’ imprisonment. A man called McAteer, charged with the same conspiracy but tried separately, was convicted of conspiracy and murder. The single judge gave leave for Lowe, Davey and Ellis to appeal against conviction and sentence, for Parkinson and Neary to appeal against conviction, and for Stephen Smith, Hillhands and Jason Smith to appeal against sentence. Neary and Ellis both, before us, abandoned their appeals against conviction. No grounds to appeal sentence were before the single judge from Parkinson or Neary. But, as a matter of courtesy, we have heard leading counsel on behalf of each of them in relation to sentence. The single judge refused the applicant Frederick leave to appeal against conviction. He renewed that application before this Court, which refused leave in a judgment delivered on 23 rd October 2003. 3. The case for the prosecution was that the appellants, Frederick and the co-accused, between 1 st June 1998 and 28 th February 2000, conspired together and with various named and unnamed others to supply heroin and ecstasy contrary to Section 1(1) of the Criminal Law Act 1977 . Operation Kingsway carried out by the major crime unit of the Merseyside police between 1998 and 27 th February 2000 involved surveillance operations from fixed and mobile observation points. The observations were recorded over a radio link and logged. Details were also gathered of telephone calls. Some observations were photographed. The officer in charge was Detective Sergeant Patricson. The conspiracy involved repeated importations of large quantities of heroin from continental Europe into the United Kingdom through the Channel Tunnel. From July 1999 onwards Frederick, a disabled, middle-aged family man using the family Vauxhall Vectra motorcar, accompanied by his wife and one or more of his children, was responsible for the majority of the importations. The purity range of the drugs was between 43% and 67%. They were taken first to Ellis’ house at 107 Upper Parliament Street, Liverpool 8. From there they went to Stephen Smith’s house in Hawthorne Road, Bootle. Some were distributed on Merseyside. Some were destined for Bradford and some for Glasgow. The final delivery, consisting of 27 kilograms of heroin with a street value of at least £1.3 million was seized by the police at 107 Upper Parliament Street on 27 th February 2000. By that date other couriers had been intercepted and 18 kilograms of heroin and 10,000 ecstasy tablets recovered. The total amount of heroin recovered was 45 kilograms with a street value in Liverpool of between £1.8 million and £2.7 million. But, during the conspiracy, more than this amount had been distributed. Of those tried, Lowe and Parkinson were the top men. Lowe, who used different names, different stolen motorcars and varying methods of travelling abroad, was the controller and director of operations. He was frequently in contact with Parkinson, whose main responsibility was distribution of the drugs following their arrival in this country. Lowe associated with Martin Neary and his brother James, who was acquitted, both of whom made visits abroad at times coinciding with the foreign travels of Frederick. Lowe recruited Coker, who was acquitted, as a courier and she took care of his false passport and birth certificate. Davey was the head of the Bradford connection and on one operation on 30 th December 1999 Hillhands, also from Bradford, was involved. 4. The prosecution evidence in relation to Lowe was that he was in regular contact with the other members of the conspiracy. He made two trips abroad at the same time that Frederick was abroad. When, in July 1999, Ellis was stopped in France in possession of £25,000 in cash and using a false name, Lowe arranged to have documents given to Ellis by the French authorities translated. On 1 st August 1999 Lowe met Martin Neary in Sefton Park on the day of Neary’s eighth and Frederick’s third trip abroad. Neary travelled to France in motorcars dishonestly acquired by Lowe and bearing false number plates. On 5 th October 1999 Lowe boarded the Hull-Rotterdam ferry. On 9 th October he arrived at Liverpool by air from Amsterdam. On 15 th November Coker travelled from Lowe’s house in Smithdown Lane, Liverpool to Stephen Smith’s house, carrying a quantity of what the prosecution said were drugs. The following day Lowe, carrying heroin and 10,000 ecstasy tablets, went with Coker to her house and shortly afterwards the drugs were delivered to English. On 19 th December Lowe met Parkinson in Seaforth where the two obtained a bag which they took to Smith’s house in Hawthorne Road. On 29 th December, shortly after Frederick had returned from one of his foreign trips, Lowe, with Ellis who was carrying a heavy bag, went to premises known as “A Touch of Steel” in Wavertree Road, Liverpool. A bag was later taken from there to 107 Upper Parliament Street. On 30 th December Lowe was involved in transferring 9 kilograms of heroin, recently imported by Frederick, to the Bradford team. He went down the back entrance to Smith’s Hawthorne Road house and emerged 25 minutes later carrying a plastic bag. On 31 st January 2000 Lowe arrived at 107 Upper Parliament Street shortly after a large quantity of drugs had been delivered there by the Neary brothers. Lowe thereafter organised the transfer of 2 kilograms of drugs by Ellis, first to Stephen Smith and then by him to Scottish couriers. On 12 th February 2000, when going through customs on his return from Amsterdam, Lowe falsely stated he had travelled out by car with a man called Johnson who owned the car and worked for British Telecom in Holland. On 27 th February Lowe arrived at 107 Upper Parliament Street shortly after drugs had been delivered and when the flat was being searched by police. £24,000 in cash was recovered from Lowe’s home. He was arrested on 27 th February and when questioned about that cash said it belonged to a member of his family. He claimed to have visited 107 Upper Parliament Street that day looking for a man called O’Rourke. 5. Lowe gave evidence that, although he went abroad three times during the period of the conspiracy, he never carried money out of or brought drugs into this country. Any bags he was seen carrying contained nothing relating to drugs, with the importation or distribution of which he had no connection. His lifestyle was modest. He had debts. He had a legitimate business in the construction industry and a criminal business dealing in stolen motorcars. Most of the cars he sold to Neary with whom he was in regular contact. But he was unaware that any of these vehicles were being used for drug dealing. The £24,000 cash found by the police at his house came mostly from the stolen car business but, in part, from savings from his cash construction business. He admitted buying a false passport and birth certificate which he had given to Miss Coker for safekeeping. He had never used it. He denied meeting Neary in Sefton Park on 1 st August 1999. He had not been at 26 Hawthorn Road for 25 minutes carrying a plastic bag or otherwise on 30 th December. Nor had he been at 107 Upper Parliament Street on the Sunday evening at the end of January 2000. He admitted lying to customs officers on his return from Amsterdam on 12th February 2000 and that his explanation for being at 107 Upper Parliament Street, namely that he was looking for O’Rourke, was false: the real reason for his visit was to obtain cannabis for his own use from Ellis. He admitted going to “A Touch of Steel” on 29 th December 1999 with Ellis: the purpose of the visit was not drugs but to look at some wrought iron furniture. He had known Parkinson for two or three years and knew that Parkinson was a bit of a rogue and a receiver of stolen goods. Towards the end of 1999 Lowe distanced himself from Parkinson because he heard that Parkinson had been arrested for an offence unrelated to the present case. He had access to two mobile telephones with which he contacted Parkinson but their dealings were not connected with drugs. He denied recruiting Miss Coker as a courier. He did not know Stephen Smith and, although he had driven Parkinson to 26 Hawthorne Road he had never been inside that house or carried a plastic bag there as described by the police on 30 th December 1999. He had first met English on 15 th November 1999 the day before English’s arrest. 6. The prosecution case against Parkinson was he, who lived in Kepler Street, Seaforth, associated regularly with Lowe, Davey, Stephen Smith and English, and was actively involved in the distribution of the drugs in this country. He had two mobile telephones from which many significant calls were made in connection with the conspiracy. On 16 th August 1999 he removed a bag from a shed in his back garden, met English in Seaforth, and handed him the bag, containing drugs, which English took to Glasgow. On 18 th October Parkinson met English in Liverpool, prior to English travelling to Davey’s home to collect a bag. On 26 th October, Parkinson, outside his home, met Davey and English. Three days later at the Tickled Trout near Preston, Davey handed a bag containing money to English which English later delivered to Parkinson for drugs to be delivered to Davey. On 19 th December, Davey and Parkinson met near Anfield football ground where, in a motorcar, heroin was smoked to test it. On 23 rd December Parkinson was in contact with Stephen Smith when he was meeting three men from the Scottish drug contingent. On 30 th December Parkinson was involved with Ellis in transferring a bag to a man at Seaforth. He had been in touch with Stephen Smith and Davey that day and, in the evening, was at Smith’s home when Lowe arrived. Parkinson was taken to McDonalds on the A580 where he met the Bradford contingent and guided them to Chelwood Avenue. There 9 kilograms of heroin were handed over by Parkinson. The following day, after the Bradford drugs contingent had been arrested, Parkinson made a series of telephone calls to Davey’s telephone. On 30 th January 2000 Parkinson was involved with Lowe and Stephen Smith, at Monaghan’s public house in Bootle, in the transfer of 4 kilograms of heroin to three Scots. The drugs had arrived that day via Frederick. There were repeated telephone communications during the day between Parkinson and Stephen Smith. The following day Parkinson contacted Stephen Smith by telephone making arrangements to transfer 2 kilograms of heroin to another Scottish courier. On 28 th February Parkinson was arrested at home. £800 was found in the drawer of one of the bedrooms. He said this belonged to himself and his wife. Following his arrest he was interviewed by the police on three occasions. At the first interview he made no comment to questions. At the second interview he said the allegation that he had handed over a large holdall to a pillion passenger in Chelwood Avenue on 30 th December was untrue. 7. Parkinson, in evidence, said he had previous convictions for violence and dishonesty and made a living by buying and selling anything available, apart from drugs. He knew Lowe, Davey, English and Stephen Smith. He had traded with Davey in contraband cigarettes and telephones but not drugs. He had had no dishonest or drug dealings with English. Stephen Smith was a close friend who would sell him stolen clothing or contraband cigarettes but not drugs. He had never met Ellis. On 16 th August 1999 he met English but only to give him a racing tip. He met Davey on 26 th October solely to ask him to intervene in a feud Parkinson was having with a man called Saunders. He met Davey at Anfield on 19 th December 1999 not to test heroin but to give him football tickets. He was in the Seaforth area on 30 th December 1999 but did not meet Ellis, whom he had never met. He was not at 26 Hawthorne Road that day. Nor was he involved, as the police described, in the handover of 9 kilograms of heroin to the Bradford contingent in Chelwood Avenue.. On 31 st January 2000 he was at Monaghan’s public house with Stephen Smith to watch football on television. He had no drug dealings there. He occasionally used the two mobile telephones but they belonged to his brother-in-law Michael Murphy and had come to his house so that they could be charged. £800 in cash found at his home came from the sale of furniture to his sister. He gave a number of reasons for declining to answer questions when interviewed. His sister confirmed the sale of the furniture. Two other witnesses spoke of buying small quantities of cigarettes from him on a number of occasions, and two other witnesses spoke of the sale by Parkinson of quantities of Persil. 8. Neary, who lived in Glendale Close, Liverpool, was an associate of Lowe and Frederick, whom he had met at the View Club, and Ellis. The prosecution said he represented the conspiracy abroad, facilitating the importation of drugs on his travels to the continent, which frequently coincided with those of Frederick. As we have said, some of the motorcars he used abroad had been acquired dishonestly by Lowe and bore false plates. On his return to this country in April and June 1999, when he was questioned by customs officers, Neary claimed that the purpose of his journey was to visit his sister in Brussels. On 30 th January 2000, shortly after Frederick returned to England from his twelfth trip to France, DC Webster identified Neary as the person who, together with his brother, carried two bags of heroin into 107 Upper Parliament Street. James Neary had arrived at the premises earlier driving Frederick’s motor car. On 27 th February Frederick, having returned from his thirteenth foreign journey, was visited by Neary. At about 6 p.m. Neary delivered two bulky holdalls of heroin and cannabis to 107 Upper Parliament Street. A quarter of an hour later police raided the premises and discovered a total of 27 kilograms of heroin, 1 kilogram of which and 282 grams of cannabis resin were in a holdall. After his arrest on 28 th February, Neary declined to answer any questions when interviewed by the police. 9. Neary, in evidence, said he was of good character and, in earlier times, had led a hard-working successful life as an independent builder with a large turnover. The business was wound up in 1994. His wife ran a florists. His trips to Europe were with a view to setting up a business in Belgium. He was introduced to Lowe on 17 th March 1999 and became involved in buying and disposing of cloned motorcars which he sold in this country and Europe. That business was the reason for his visits to Lowe’s house. He had nothing to do with the importation of drugs. He was unaware that several of his foreign trips coincided with Frederick’s journeys. It was not true that he had been at 107 Upper Parliament Street on 30 th January. On 27 th February 2000 the goods handed to him by Frederick were duty free not drugs. Thereafter it was drycleaning which he took to Ellis, who he had only met once before. He gave various explanations for not answering questions in interview. In particular he did not wish to implicate Lowe in the stolen car business. 10. Davey, the prosecution claimed, was head of the Bradford drug connection. He was regularly in contact with Parkinson and English, and knew Hillhands. On 18 th October 1999 English, after meeting Parkinson, collected something from Davey and returned to Liverpool where he again met Parkinson. On 26 th October Davey met Parkinson and English outside Parkinson’s home. On 29 th October Davey met English at the Tickled Trout near Preston and gave him a bag likely to have contained money in anticipation of the drugs delivery to Davey. English was to deliver the bag to Parkinson. On 16 th November English, on his way, it was said, to meet Davey, was stopped on the M62 Motorway at Brighouse and had 3 kilograms of heroin and 10,000 ecstasy tablets in his possession. On 19 th December Davey met Parkinson outside Anfield football ground after Parkinson and Lowe had taken a consignment of drugs to Stephen Smith’s house. As we have said, they tested the heroin, smoking it in a motorcar. On 30 th December, Davey travelled from Bradford to Liverpool in a Honda motorcar. Hillhands and Parker, who was acquitted, went on a motorcycle to Liverpool. Having met Parkinson at McDonalds on the A580, Parkinson guided Davey to Chelwood Avenue. Davey left the Honda motorcar and was present when 9 kilograms of heroin were handed to Hillhands. At that point Davey was arrested. 11. Davey said in evidence he was a nightclub doorman from Bradford. He also dealt in motorcars and contraband cigarettes, spirits and telephones. He had met Parkinson two or three years before and they traded in contraband cigarettes. Parkinson introduced him to English whom he did not know was a drugs dealer. Davey never had any drugs dealings with anybody. On 18 th October 1999 English came to Bradford solely to collect some clothes he had left in a caravan. On 26 th October Davey went to Parkinson’s house to see if he could help in relation to the feud with Saunders, a local hard man who had injured Parkinson’s wife. While he was there, Parkinson telephoned English who came to the house and Davey arranged to meet him three days later at the Tickled Trout. They met there on 29 th October and he handed to English a bag containing a coat, some blue movies and two telephones, but no drugs. On 26 th November, when English was stopped on M62, Davey knew nothing of his journey. On 19 th December he met Parkinson near Anfield to get some tickets for a football match. Heroin was not tested. On 30 th December he heard his friend Hillhands was going to Liverpool to collect some money and he accompanied him in a separate vehicle because he was planning to take the money from Hillhands in a staged robbery. He agreed he had been in a Honda motorcar at the junction of Chelwood Avenue and Thornton Road but was unaware that any transaction in relation to heroin took place there. Contrary to what had been put on his behalf in cross-examination, he declined in evidence to say that Parkinson was present on that occasion. 12. Ellis, according to the prosecution, was not central to the conspiracy, but played a number of important roles, in particular by providing the main drugs safe house at 107 Upper Parliament Street. On 15 th July 1999 he was stopped by French customs officers while carrying £25,000 in cash intended as payment for drugs. He falsely told the authorities that the money was for buying a car. Some money, he said, had come from buying and selling cars and some from the proceeds of winning at gambling. He took the documents issued to him by the French authorities to Lowe for translation. In November 1999 Ellis took the tenancy of a flat at 107 Upper Parliament Street. On 29 th December, the day following the return of Frederick from one of his visits to France, carrying a heavy bag, he went to the premises “Touch of Steel”. Lowe went separately to the same premises at the same time. The following day Ellis and Parkinson were involved in the transfer of drugs to a Honda motorcar in the Seaforth area. On 30 th January 2000 Ellis visited Lowe’s house. The following day a large consignment of drugs was delivered to 107 Upper Parliament Street from where Ellis took 2 kilograms in a taxi to Stephen Smith’s home in Hawthorne Road. On 27 th February 27 kilograms of heroin were delivered to Ellis’s flat. Lowe visited the flat immediately after the delivery. When the police raided the flat that day there was, as we have said, 1 kilogram of heroin and 282 grams of cannabis resin in a holdall on the kitchen floor and there was 26 kilograms of heroin in brick form in the airing cupboard. Ellis was arrested. 13. Ellis said in evidence he was a cannabis not a heroin dealer. This was why he had £25,000 in France. On his return he asked Lowe to have translated the documents given to him by the French authorities. He had known Lowe for some years, supplying him with small amounts of cannabis. Eventually Ellis provided the safe house for drugs but believed they were cannabis. He admitted lying to the French authorities that the money was for a car and came from gambling winnings. His visit to the “Touch of Steel” with Lowe on 29 th December 1999 was to look at wrought-iron furniture. On 30 th December he was not present with Parkinson when drugs were transferred to the Honda. He did not know Parkinson. 30 th January 2000 was the date of the first delivery to Ellis of what he believed to be cannabis resin. It was not delivered by the Neary brothers. On 27 th February a second delivery was made and Martin Neary came later the same day but only to deliver some drycleaning. Initially he did not realise he had a defence to the charge: he understood it did not matter that the drugs he stored were heroin or cannabis. He told his legal advisers that he always thought he was dealing in cannabis and they told him he must plead ‘Not Guilty’. His knowledge of the nature of the drugs was the issue for the jury. They disbelieved him. 14. Stephen Smith, it is common ground, was recruited to replace English, following English’s arrest in November 1999. He lived at 26 Hawthorne Road, Liverpool. His principal role was as courier, although he occasionally stored drugs. He knew Lowe, Parkinson and Ellis, all of whom visited his home. On 15 th November 1999 he handed a package to Coker. On 23 rd December 1999 he collected cash from a man called George Smith to whom, on 30 th January, he was said to have delivered 4 kilograms of heroin at Monaghans public house. On 30 th December he was involved in the handing over of 9 kilograms to Hillhands. On 1 st February he delivered 2 kilograms to a Scotsman called Craig at McDonalds in Netherton, having stored it at his house overnight. He was arrested at home on 28 th February 2000. 15. Frederick brought large quantities of heroin into this country, via the Channel Tunnel, from France to which he made thirteen short trips with his wife and children between July 1999 and 27 th February 2000. As we have said, he was largely supervised in Europe by Neary who collected drugs from him on 27 th February. Further details of the evidence against Frederick are to be found in this court’s judgment on 23 rd October 2003. 16. Hillhands arrived in the Liverpool area from Bradford on 30 th December 1999 travelling as a pillion passenger on a motorcycle, accompanied by a Honda motorcar driven by Davey. This Bradford contingent met Parkinson who gave 9 kilograms of heroin to Hillhands in Chelwood Avenue. Hillhands put the heroin under the front of his jacket, remounted his motorcycle and travelled in the direction of the M62 motorway. He was stopped and arrested at Burtonwood Services on the M62 with the drugs still under his jacket. He also had in his possession £3,800 in cash. This was the only incident involving Hillhands. In interview he admitted going to Liverpool but said this was in connection with CDs, not drugs. He did not give evidence but called a witness about the cash in his possession. 17. Jason Smith was a minder of 49 kilograms of heroin and 2 kilograms of cannabis which, together with £33,770 in cash were discovered at his home on the 8 th June 2000. 18. Desiree Coker, as we have said, was acquitted. The prosecution case against her was that she was a courier recruited by Lowe who took drugs to Hawthorne Road from Lowe’s house on 15 th November. On 16 th November she handed heroin and ecstasy tablets to English which were in his possession when he was arrested on the M62 motorway. When she was arrested on 28 th February 2000 police found in her house an unused passport in the name of Alan Perrin bearing Lowe’s photograph. A birth certificate was also found showing a date of birth of 15 th February 1961 which was the same as the date entered on the passport. 19. On behalf of Lowe, Lord Thomas QC advanced two grounds in support of his appeal against conviction. First, the judge was wrong in refusing to permit the defence statement served under S.5(6) of the Criminal Procedure and Investigations Act 1996 to be placed before the jury. It is twenty-four pages long and was served on 14 th July 2000, four and a half months after Lowe was arrested and questioned and six weeks before the beginning of the trial. Lord Thomas submitted that there was ample opportunity for the prosecution to investigate its accuracy as it contained the names and addresses of witnesses: indeed, because of such investigation, the prosecution dropped some of the allegations which they were making against Lowe and called rebuttal evidence on certain aspects. He referred to Beckles [1998] EWCA Crim 1494 in which at p.12 there is a citation from an unreported decision of this court in Roble 96/02955 CACD Judgment 21 January 1997 where it is said that the purpose of the statutory provisions in relation to the drawing of adverse inferences under section 34 of the Criminal Justice and Public Order Act 1994 “is to permit adverse inferences to be drawn where there has been late fabrication” and “to encourage speedy disclosure of a genuine defence or of facts which may go towards establishing a genuine defence”. He submitted that, if a judge is to give a section.34 direction permitting adverse inferences to be drawn, this has to be in the context of any defence statement, otherwise the defendant is placed in an impossible position. He also referred to an article by Ian Dennis, 2002 Criminal Law Review 25 suggesting, at p.37 that section.34 “has been increasingly marginalized” and “the inferences it permits may be useful corroborative evidence but the jurisprudence of the section shows that it is an extraordinarily technical rule of corroboration”. He also referred to Howell [2003] EWCA Crim 01 para 23 where the court said “the police interview and the trial are to be seen as part of a continuous process” and “adverse inferences may be drawn only in those cases where the defendant could reasonably have been expected to mention the facts in question”. At para 24 it was said “there must always be soundly based objective reasons for silence, sufficiently cogent and telling to weigh in the balance against the clear public interest in an account being given by the suspect to the police”. Lord Thomas submitted that, before drawing adverse inferences from Lowe’s failure to comment in interview, the jury should have had in mind that he was acting on legal advice, was being questioned about detailed sightings over a long period, that it took several weeks before the prosecution were able to serve on the defence 2,500 pages of evidence, that service of the defence statement gave ample opportunity to the prosecution to investigate and that some of his explanations were accepted by the prosecution. The summing up drew no distinction between Lowe and the other defendants who had not given defence statements anything like as detailed as Lowe’s. The jury were entitled to know all the circumstances before deciding whether to draw inferences. Here, because they were unaware of the defence statement, they were effectively misled. 20. Lord Thomas’ second submission related to the judge’s conspiracy direction. It was the prosecution case that Lowe and Parkinson were the most important figures in the conspiracy of those in the dock. There was a danger that Lowe might be convicted because he was an associate of those involved in drug trading. His defence was that he dealt in stolen cars, some of which, unknown to him, had been involved in drugs dealing. One possible scenario of his involvement in the conspiracy was that he supplied cars knowing drugs had been imported, but this was not the prosecution case. Accordingly, in his final speech, Lord Thomas had focused on the issue as to whether Lowe was a central organiser and stressed that the jury should not convict on some other basis not canvassed. In this context, he criticised the judge’s ruling rejecting the submission that a specific direction should be given that the jury should confine their deliberation to the narrow issue of whether Lowe was the main man in the conspiracy. Furthermore the judge should have given such a specific direction when the jury, not long after retiring, returned with the following question: “If we believe Lowe is not the main man as the prosecution have put the case but we believe him to be part of the conspiracy is he guilty?” The judge, in answer, referred to the use of the word “believe” and emphasised that they must only convict if they were sure. He went on: “If you believe that Mr Lowe is not the main man as the prosecution has put the case but you are sure and the prosecution have made you sure that he is a part of the conspiracy the answer is Yes he is guilty”. Lord Thomas referred to the differing views expressed by this court in Jones [1999] EWCA Crim 296 and the Northern Ireland Court of Appeal in McCandless [2001] NIECA 8 as to the need for jury unanimity in relation to the basis of a verdict of guilty of manslaughter. It is to be noted that diminished responsibility was in issue in McCandless but not in Jones . We do not find those authorities helpful in relation to conspiracy. 21. For the Crown, Mr Turner QC submitted, in relation to the defence statement, that, although his position on this application at trial was neutral, the judge was right to conclude that it was a previous consistent statement and, as such, inadmissible. Equally, the judge was right to take the view that it was no more admissible in evidence than would be a defendant’s proof. As to the judge’s direction in relation to conspiracy and the way in which he dealt with the note from the jury, Mr Turner pointed out that the judge gave the standard Judicial Studies Board direction in relation to conspiracy, concluding with the words that it did not matter where precisely a defendant appeared on the scale of seriousness. It was never the prosecution case that Lowe was the main conspirator but he was one of the central figures in the conspiracy. It was not for the jury to decide where each defendant was on a scale of seriousness. That was a matter for the judge. The jury’s question, he said, has to be put in the context of Lord Thomas’ leit-motif in his final speech, that Lowe was said by the prosecution to have a central role and to be in control. 22. In our judgment although there are cases in which it may be appropriate for the jury to know the date on which a defence statement was served or to see parts of a defence statement either in cross-examination when variation from it is alleged, or in re-examination to rebut a suggestion of recent invention, the judge’s ruling in relation to the defence statement in this case was impeccable. He directed himself as to all the material considerations and took nothing irrelevant into account. His conclusion that there was no proper basis on which this extremely lengthy statement, served four and a half months after interview, should go before the jury is unimpeachable. Like the judge we see no difference in principle between this statement and a defendant’s proof. It was prepared after all the prosecution documentation was served on the defence. It dealt in detail with much of the evidence. It gave Lowe’s response to many of the allegations against him. But, as was pointed out in Roble, the purpose of s.34 is to encourage speedy disclosure of a genuine defence and to permit adverse inferences to be drawn where a defence has been fabricated later. When, in interview after arrest, Lowe was asked about the substantial amount of cash in his possession, he did not give the explanations which he advanced at trial. That was a matter from which, if properly directed, the jury were capable of drawing adverse inferences. It is not suggested that they were not properly directed. This ground fails. As to the judge’s direction in his summing up and in his response to the jury question about conspiracy this was, in our judgment, correct. In a conspiracy case it is the role of the jury to decide whether a particular defendant was party to the agreement alleged. It is not for them to make findings as to precisely when a defendant joined a conspiracy or for how long he was a party to it. Nor is it their function to decide what role a defendant played in a conspiracy to which he was a party. Those are matters relevant to sentence, not to whether or not guilt of the offence is proved. The second ground fails. It was for these reasons that, on 23 rd October 2003 Lowe’s appeal against conviction was dismissed. 23. For Parkinson, Mr Batty QC, in submissions attractively adopted by Mr Holland on behalf of Davey, submitted, first, that the judge was wrong to refuse no fewer than four applications, at various stages of the trial, that the jury should be discharged. The first application followed evidence given on 2 nd October when DS Patricson, in the course of cross-examination by Lord Thomas on behalf of Lowe, as to why on a particular occasion of surveillance the officers had not followed Lowe, said: “The intelligence was Parkinson was going to make a drugs transaction and I decided as team leader to stay with Parkinson”. The judge concluded that any possible prejudice to Parkinson could be cured in due course by an appropriate direction. But he was troubled as to what might happen subsequently if defence counsel in their speeches brought the evidence back to mind. Accordingly, he laid down parameters as to the terms of final speeches. In breach of those parameters, submitted Mr Batty, Lord Thomas in his final speech said: “This is the night when there is an understanding that a drugs deal is going to be done”. That led to the fourth application to discharge the jury on 14 th November. In refusing to accede to that application, the judge commented that the speech had lasted throughout the morning and run into the afternoon and Lord Thomas’ words had not made any impact on the judge, although they did on defence counsel and Parkinson himself. The judge’s provisional view was that what counsel had said had gone counter to the spirit of the judgment he had given dismissing the first application to discharge on 6 th October. But the judge concluded that the juxtaposition of Parkinson’s name in counsel’s remarks and the reference to “an understanding” would not necessarily have put the jury in mind of the evidence given on 2 nd October. The judge pointed out that counsel had not referred to intelligence and the remarks were made in a matter of seconds. That speech would be followed over the next several days by many other defence speeches and a lengthy summing up. The judge concluded that any potential prejudice was limited in extent and could properly be met by a direction of the kind indicated in his ruling of 6 th October, together with a firm reminder to the jury that counsels’ speeches were not evidence and their verdicts must be based only on the evidence. No complaint is made of the direction on this aspect which the judge ultimately gave in the summing up. But, Mr Batty submitted, that prejudice was incurable. The second application to discharge was made on 30 th October after Lowe in his evidence had said that he had avoided contact with Parkinson because Parkinson had been arrested and was on bail in respect of “a serious offence”. The use of the word “serious” gave rise to the application on the basis that Parkinson would inevitably be prejudiced. Mr Batty does not criticise the terms of the ruling which the judge gave and accepts that, in itself, this would afford no ground of appeal. But, he said, it is a matter to be put in the scales in relation to prejudice which has to be approached cumulatively. A third application to discharge was made on 6 th November 2000 the day after a front page story had been published in the Sunday People, linking Liverpool football players to drug dealers. This was after Parkinson, in evidence, had told the jury of an innocent association with a Liverpool footballer whom he named. He had also given evidence about knowing the brother of a leading figure in the article and of his links with his brother-in-law, Michael Murphy (to whom he said the two mobile telephones belonged) who was also named in the article. The prosecution suggested that Parkinson had engineered the article; the defence suggested that the Crown had prompted it. After a three day voire dire, the judge did not find either of those claims to be established. Mr Batty referred to Docherty [1999] 1 Cr App R 274 at 280G where this court said that, when weighing up the danger of bias, a judge should approach the issue “on the basis of the more prejudicial meaning that could reasonably be placed … rather than some lesser prejudicial interpretation”. All four applications had been properly made. The cumulative effect of the matters to which the applications related could not be cured by any direction in the summing up. 24. Mr Batty’s second ground of complaint related to the directions given by the judge in his summing up with regard to identification. He accepted that a full Turnbull direction was given on 22 nd November but when, five or six days later, the judge dealt with the identification evidence he failed to point out the particular weaknesses in it. Furthermore, the judge failed to warn the jury of the risk during a surveillance operation, when there was radio communication between the officers, that one officer’s identification might taint another’s. Three of five officers purported to identify Parkinson in the meeting with the Bradford contingent at Chelwood Avenue on 30 th December 1999. But, in dealing with that evidence, as the general direction had been given some days earlier, it was dangerous not to give further directions as to identification weakness. Mr Batty’s third ground was that the judge unnecessarily and prejudicially highlighted inadmissible material in his summing up. Parkinson had been cross-examined by Davey’s counsel on the basis that he was present at the Chelwood Avenue handover, but Davey in evidence did not support this. The judge ought not to have used this incident as an illustration of what was not evidence. 25. For the Crown, Mr Turner submitted that the judge considered each of the applications to discharge the jury with the greatest care. He directed himself impeccably by reference to English and Convention law. He expressed himself in terms of Docherty as to whether or not there was a real danger of injustice and, on the fourth application, he looked at the cumulative impact of each of the matters. The words used by defence counsel in his final speech had had no impact on the judge or the prosecution. The evidence of DS Patricson and defence counsel’s comments in his speech had to be viewed in context, namely the jury knew that there was a surveillance operation being carried out on Lowe and Parkinson. They knew that a flat opposite Parkinson’s premises had been commandeered for the purpose. Unusually, at the request of those defending Lowe, the jury had seen the observation logs in relation to which the officers had been cross-examined at length about alleged errors. The logs named Parkinson as S1 and Lowe as S2 i.e. they were named targets. It would have been apparent to the jury that the police were not keeping a round-the-clock watch. Yet they were present when something of significance occurred, such as Lowe’s meeting with English, the meeting between Davey and Parkinson on 16 th November followed by the interception of English on his way east along M62, and, on 30 th December 1999, as the millennium approached, a Liverpool jury could not have failed to appreciate that there would not have been a dozen police officers in Hawthorne Road when 9 kilograms of heroin freshly imported by Frederick were handed to the Bradford team unless the police had been in possession of information. As to Lowe’s reference in evidence to Parkinson being on bail for a serious offence he was on bail suspected of murder, though ultimately he was not proceeded against. Lowe was entitled to explain why he was keeping away from Parkinson. Bearing in mind that Parkinson’s defence was that he was a professional receiver and that he was anxious to meet Davey, a hard man from Bradford, to settle a score with Saunders who had used a bottle on his, Parkinson’s, wife, the scope for prejudice to Parkinson in linking him with a serious offence was distinctly limited. The jury would be well aware that police suspicions may not be proved and they were, in any event, directed that Parkinson had not been proceeded against in relation to the offence to which Lowe referred. As to the article in the People, it contained no suggestion that the footballer identified by Parkinson had anything to do with drugs. Parts of the article were helpful to Parkinson and the judge gave the jury a clear and strong direction, before he summed the case up and shortly after the articles had appeared, that they must try the case according to the evidence and, if they had read the articles, they were nothing to do with and had no bearing on the case in relation to any defendant. 26. As to the directions with regard to identification, Mr Turner emphasised that a full Turnbull direction was given not only in relation to the defendants but also as to Frederick’s motorcar. By 30 th December 1999 officers had been trailing Parkinson and Lowe for months. The judge rehearsed the detail of the cross-examination as well as the evidence in chief of the witnesses bearing on identification, thereby exposing such weaknesses as there were. He did not direct the jury as to the danger of taint but he repeatedly warned them to consider each of the challenged identifications separately. As to the highlighting of the inadmissible evidence this was relevant to the credibility of Davey. The judge made it clear that they were not to regard what was put in cross-examination for Davey as being evidence against Parkinson. 27. It is plain that the question of whether or not the jury should be discharged was, on each of the four occasions when an application to discharge was made, a matter for the exercise of discretion by the trial judge. He was conducting what, having regard to the seriousness of the offences, the number of defendants and the competing and intermittently conflicting interests of the defendants, was a very difficult trial. It is in our view clear, from the meticulously careful rulings which he gave on each occasion, first, that he properly directed himself as to the relevant law, secondly, that he took into account all appropriate matters and thirdly, on each occasion, he exercised his discretion in a way which was not only permissible but was correct. It is to be noted that, at trial, counsel then appearing for Davey did not support the application to discharge the jury, although in this court Mr Holland, as we have said, criticised the judge for failing to discharge the jury. This ground fails in relation both to Parkinson and Davey. As to the summing up in relation to identification, having read the whole of the summing up, each member of this Court is filled with admiration for the meticulous care taken by the trial judge in the legal directions which he gave and the scrupulously comprehensive and accurate way in which he rehearsed the evidence of witnesses, warts and all. This ground fails. The complaint about supposed prejudicial highlighting of inadmissible material is entirely without substance. The fact that Davey, in evidence, did not support cross-examination on his behalf was highly relevant to his credibility and the judge was scrupulously careful to direct the jury as to what was and was not evidence in such a way that Parkinson cannot possibly have been prejudiced. This ground fails. For these reasons, we dismissed the appeals against conviction of Parkinson and Davey. 28. We turn to sentence. On behalf of Lowe, Lord Thomas accepted that the judge was entitled to make up his own mind on disputed questions of fact relevant to sentence (see Solomon and Triumph 6 Cr App R(S) 120) and was free to come to a conclusion as to where the truth lies, (see McGlade 12 Cr App R (S) 105). He also accepted that it was open to the judge to form views as to the degree of involvement of a particular defendant having regard to what he had seen and heard (see Martin [2002] 2 Cr App R(S) 130) and that, where a jury ask a question during the summing up, the sentencing judge is not bound to sentence on the basis that the question indicated that the jury had formed a particular view of the facts (see Cloud [2001] 2 Cr App R(S) 435). However, he submitted, the judge’s conclusion that Lowe was an organiser or controller of the conspiracy was one which no reasonable jury, properly directed and applying the criminal standard of proof, could have reached. The judge had drawn inferences from primary facts which, even if established, could not bear such a construction. Alternatively, there was nothing to found an inference that Lowe was more culpable than Parkinson or Davey. Lord Thomas identified fourteen factors referred to by the judge in his sentencing remarks in relation to Lowe, three or four of which Lord Thomas questioned. In addition to the factors to which Lord Thomas referred, the judge also had regard to the £24,000 in cash found in Lowe’s possession. Lord Thomas stressed that the conspiracy did not cease after Lowe and others were arrested, bearing in mind the 49 kilograms of heroin found in Jason Smith’s premises on 8 th June. Lowe’s lifestyle was modest, living in a council house and, although he admitted dealing in cloned cars, his record did not indicate serious further criminality. No trace of drugs was found at his home and neither his personality nor life achievements suggest a mastermind of an international operation. 29. In our judgment, there was abundant material justifying the judge’s conclusion, expressed in his sentencing remarks, that Lowe was one of the two big fish in relation to this conspiracy before the court. It suffices to refer to some of the material which Lord Thomas does not seek to challenge: Lowe made two significant trips abroad which coincided with trips made by Frederick; he associated regularly with Parkinson, Neary and Ellis during the period of the conspiracy; he was associated with many of the stolen cars used in the conspiracy, and he used numerous stolen cars, names and modes of travel; he was the person to whom Ellis turned for translation when he was stopped in France with £25,000; on 30 th December 1999, although Lowe denied it, the judge was entitled to conclude that he was involved in the transfer of the heroin to the team from Bradford; and the judge was entitled to conclude that, on both 30 th January and 27 th February 2000, Lowe was involved in the delivery of huge quantities of drugs to Ellis’ home at 107 Upper Parliament Street. As to Lord Thomas’ alternative submission, comparing Lowe’s role with that of Parkinson and Davey, it was, as it seems to us, plainly open to the judge to conclude that, although Parkinson’s role was primarily distribution in the Liverpool area and Davey was head of the Bradford connection, Lowe, in addition to his activities in Liverpool and in support of the Bradford connection, was also involved abroad: two of his foreign trips coincided with Frederick’s; it was to him that Ellis turned for translation; and he had a false passport with a false birth certificate to support it. Lord Thomas did not suggest that, if Lowe was properly characterised by the trial judge as one of the main players, the judge’s starting point was too high. For reasons which we shall explain when dealing with Mr Batty’s submissions, we do not accept that the starting point was too high. Twenty- four years was a severe sentence for Lowe. It was appropriate. His appeal against sentence is dismissed. 30. On behalf of Parkinson, Mr Batty referred to certain observations by the learned judge suggesting that there might be others higher up in the conspiracy than Lowe and Parkinson. If so, he posed the question, could more than twenty-four years be contemplated for them? Parkinson’s role was national rather than international and the judge accepted that he was not involved with the importation or with the delivery on the 27 th February. Neary, described as the international facilitator, had received a sentence of only sixteen years. Mr Batty accepted that the fact that, in August 1993, Parkinson received a four year sentence for supplying heroin with intent is an aggravating feature in his case. But he lived modestly in a council house and the police had returned to him half the cash they took on the basis that it had come from the sale of furniture. Twenty-one years, Mr Batty submitted, is “a bit too much”. Mr Batty also pointed out that the appeal has taken what he described as a long time to come to this Court through no fault of Parkinson. It is now three years since he was convicted and grounds of appeal were submitted on his behalf in December 2000. Mr Batty referred to Ashton Lions and Webber (The Times 10 December 2002) where, in a case in which there had been unjustifiable delay between the grant of leave to appeal and the hearing of an appeal, for which the appellant was blameless, sentences of eighteen years and fourteen years’ imprisonment were reduced by one year in the light of the appellant’s right to determination of a criminal charge within a reasonable time under Article 6(1) of the European Convention. The Court pointed out that such a result would not follow where there was delay due to circumstances outside the control of the Court or the prosecution. 31. With regard to the judge’s starting point, although no counsel referred us to any authority, we have considered a number of authorities in recent years including Middelkoop and Telli [1997] 1 Cr App R(S) 423, Sehitoglu & Ozakan [1998] 1 Cr App R(S) 89, Kaynak & Others [1998] 2 Cr App R(S) 283, Kayar [1998] 2 Cr App R(S) 355, Billson [2002] 2 Cr App R(S) 521, Unlu [2003] 1 Cr App R(S) 524 and Soares & Others (CACD 5 th September 2003) [2003] EWCA Crim 2488 in particular paras. 276, 279 & 290. No useful purpose would be served by a close analysis of the differing facts and circumstances of these authorities. What they show, relevant for present purposes, is that, first, this Court has contemplated the possibility, following a trial, of a sentence of thirty years’ imprisonment for a dominating mind in relation to conspiracy to import massive quantities of class A drugs; and, secondly, even if others were involved at a higher level, twenty-four years is not an inappropriate starting point for one like Lowe playing a senior national and international role in relation to massive importations of heroin. We say massive importations because, although the learned judge rightly did not seek to identify the precise amount of heroin imported in this conspiracy, it cannot conceivably have been less than 100 kilograms, of up to two-thirds purity. We say this, because the judge, for the reasons which he gave, was entitled to conclude that the January 2000 delivery, like the February 2000 delivery which the police seized, was 27 kilograms, 9 kilograms had gone to the Bradford contingent in December, 3 kilograms and 10,000 ecstasy tablets had been intercepted on their way to Bradford in November. Accordingly, even if two or three of the earlier eleven trips made by Frederick had been, as the judge allowed, dummy runs and the amount of drugs had been increasing as the trips went on, the figure of 100 kilograms which we have mentioned must, as it seems to us, be regarded as a conservative estimate. A useful cross-check for this conclusion is provided by the possession of 49 kilograms by Jason Smith in June 2000. Furthermore, we do not accept that Parkinson has any legitimate complaint when his sentence is compared with that of Neary. Neary’s role was international he is 56 and of previous good character, whereas Parkinson, who is 39, has the previous relevant serious conviction to which we have referred. We do not accept that there is in this case any unjustifiable delay on the part of the court or the prosecution. There are eight appellants plus Frederick, all making different complaints about conviction and/or sentence. It was mid-March 2001 before most of the applications for leave to appeal were received by the Court. It was the end of May 2001 before the relevant transcripts were obtained. Waiver of privilege documents in relation to Frederick had to be obtained as he had dismissed his trial counsel. In late November all the appeal papers were assembled and they were despatched to the single judge on 11 th December 2001. He gave his decision in early 2002 and on 10 th June the papers went to a summary writer for preparation of the appeal hearing. The summary was completed by late November 2002 and the case was then ready for listing two years after the trial and twelve months after the last defendant (Frederick) had been sentenced. There were, however, problems in agreeing a date convenient to all counsel and, in May 2003, the appeal was listed for 21 st to 25 th July. That date was vacated at the request of defence counsel for counsel’s convenience. It seems to us there was, in all the circumstances, no untoward delay. There is no ground for regarding Parkinson’s sentence of twenty-one years as excessive. Accordingly, even assuming that grounds on his behalf had been properly submitted to the single judge, his complaints, whether regarded as an application or an appeal, are dismissed. 32. On behalf of Neary, Mr Hubbard QC accepted that no grounds of appeal had ever been submitted to the single judge or to this court. The submission on his behalf was based on the fact that, by withdrawing his appeal against conviction, he has now shown remorse. We have read his statement to this court. He is a model prisoner. He is the oldest of the defendants, of good character and hitherto a respectable family man. The impact on him and his family of his sentence has been great. The submission is made that a slightly reduced sentence would have had the same impact: “Sixteen is just a little bit too long”. That is not a basis on which this court could characterise a sentence as either wrong in principle or manifestly excessive. Neary’s role was that of international facilitator. The sentence passed upon him by the learned judge was appropriate. The fact that he now admits his participation in these matters affords no basis for criticising the sentence passed by the learned judge. His complaints are therefore rejected. 33. On behalf of Davey, Mr Holland submitted that, if Neary and Ellis are properly to be treated as being at the same level of culpability, Davey’s role was less. Furthermore, Frederick, the importer, received only fourteen years. He accepted that the judge was entitled to regard Davey as having been the beneficiary of three importations, on 24 th October, 14 th November and 28 th December, but he was not himself involved in importations. His personal mitigation is that he has been married ten years and has six children aged between 8 and 18. He has behaved well in prison, where he enjoys enhanced status as a category C prisoner; he has a long record but much of it is of no great gravity and eighteen months is the longest period he has previously served; finally, Mr Holland relied on delay with which we have already dealt. In our judgment the learned judge was well placed to assess Davey’s role. It was of course quite different from that of Neary and Ellis and Frederick’s sentence, as the judge expressly stated, was less than otherwise it would have been because of his poor health, whereby serving a sentence would be more difficult for him than for someone not similarly afflicted. In our judgment it is impossible to say that sixteen years was other than an appropriate sentence in his case. His appeal is dismissed. 34. On behalf of Ellis, Mr McDermott QC, who did not appear at trial, points out that the judge said that Ellis was lucky in that, on one view, he should have received a longer sentence than Neary. He accepted that the judge was well placed during the trial to assess Ellis’ role in providing the safe house in Upper Parliament Street, making deliveries locally in Liverpool and taking part in some ill-defined way in France. His record is that of a petty criminal. He was not central to the conspiracy. At the trial his defence was limited to the question of his knowledge of the drugs with which he was involved. Sixteen years was a heavy sentence which, Mr McDermott submitted, should certainly be reduced if the sentence of others, particularly Neary, were reduced. We have regard to these submissions. We are unpersuaded that the sentence on Ellis was other than appropriate. His appeal is dismissed. 35. On behalf of Jason Smith, Miss Forsyth, in an admirably succinct submission, while accepting that the amount of heroin and cash housed by Smith was huge, said that the judge could not have given him adequate credit for his guilty plea. On any view, Neary and Ellis were much more deeply and widely involved than Jason Smith, whom the judge was sentencing for possession with intent to supply on a single day. If sixteen years is appropriate on a plea, twenty years or more must have been the contemplated sentence following a trial. Such a level, submitted Miss Forsyth, placed Jason Smith in too high a category. We agree. Although it might not be possible to criticise this sentence if it stood in isolation, for acting as the minder of 49 kilograms of heroin and £38,000 in cash, we think it was too long in the context of the other defendants in this case. Accordingly, we allow Jason Smith’s appeal, quash the sentence of sixteen years and substitute for it a sentence of thirteen years’ imprisonment. 36. For Hillhands, Mr Rose submitted that, at 23 at the time of the offence, Hillhands was by far the youngest of the defendants. His involvement was on one day only, when he was carrying 9 kilograms of heroin. There were others with him, one of whom may have been fortunate to be acquitted, so he was not apparently trusted by others in the Bradford contingent. We take these submissions into account. We note that Jason Smith is virtually the same age as Hillands and Ellis only few years older. In any event, the judge expressly had regard to Hillhands’ age. It is commonly a feature that couriers of drugs are only involved for a day or so. Hillhands did not plead guilty. 9 Kilograms of heroin is a large quantity of the drug, even though it was on a national rather than international journey. It is impossible to say that eleven years was excessive. His appeal is dismissed. 37. On behalf of Stephen Smith, Mr Martin stresses that he was involved because he was a lifelong friend of Parkinson. He became involved after English had been arrested in November 1999, carrying 3 kilograms of heroin and 10,000 ecstasy tablets to Bradford. No sufficient credit was given for his plea of guilty on 6 th September, when the judge accepted that there had been a good deal of pressure on him from other defendants. His role was clearly less than that of Ellis, yet the eleven year sentence he had received on a plea of guilty suggests that, on a trial, he would have received a sentence comparable to Ellis. Mr Martin accepted that Smith was disbelieved on the Newton hearing before His Honour Judge George and was found to have knowingly helped Parkinson on five occasions. The sentence on English was nine years and he had made a delivery to Glasgow in August as well as participating in the way he was at the time of his arrest. Mr Martin also sought to rely on delay. Stephen Smith’s case illustrates the difficulties which can arise when different judges pass sentence in relation to defendants in the same exercise, although we do not, in the present case, make any criticism of that having occurred. It is possible that had English appeared before Judge Maddison his sentence would have been higher than it was. It is possible that if English and Stephen Smith had both been sentenced by Judge Maddison, English would have received a higher sentence and Stephen Smith a lower sentence. In the ordinary way to reduce a sentence of this length by a year would be tinkering, which this court seeks to avoid. But, looking at the position of Stephen Smith, as we must, in relation to the sentences passed on the others involved in this case, we think that justice requires that such a reduction should be made in Stephen Smith’s sentence in order appropriately to reflect his position in relation to the other defendants. Accordingly his appeal is allowed. The sentence of eleven years is quashed and sentence of ten years is substituted. 38. We express our thanks to all counsel for the expeditious way in which, in relation to conviction and sentence, all these matters have been dealt with before this court.
{"ConvCourtName": ["Liverpool Crown Court"], "ConvictPleaDate": ["4th December 2000", "5th September 2000", "4th September 2000", "The following day"], "ConvictOffence": ["conspiracy to supply controlled drugs", "possessing a controlled class A drug with intent to supply", "possession of a controlled class B drug with intent to supply"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Liverpool Crown Court"], "Sentence": ["Frederick was sentenced to 14 years", "Jason Smith 16 years", "Neary 16 years", "Davey 16 years", "Lowe 24 years", "Parkinson 21 years", "Hillhands 11 years", "imprisonment", "Stephen Smith was sentenced to 11 years", "Ellis 16 years"], "SentServe": ["consecutive"], "WhatAncillary": ["drug confiscation order"], "OffSex": ["man"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["cash construction business"], "OffHomeOffence": ["Ellis’ house at 107 Upper Parliament Street, Liverpool"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["false passport and birth certificate.", "prosecution evidence in relation to Lowe was that he was in regular contact", "telephone calls", "surveillance operations"], "DefEvidTypeTrial": ["good character", "he never carried money", "Two other witnesses"], "PreSentReport": ["data not available"], "AggFactSent": ["repeated importations", "culpability", "street value", "different stolen motorcars"], "MitFactSent": ["remorse", "good character", "personal mitigation is that he has been married ten years and has six children", "model prisoner", "impact on him and his family", "behaved well in prison"], "VicImpactStatement": ["data not available"], "Appellant": ["appellants"], "CoDefAccNum": ["Four co-accused,"], "AppealAgainst": ["against conviction and sentence"], "AppealGround": ["the judge was wrong in refusing to permit the defence statement", "the judge was wrong to refuse no fewer than four applications,", "the judge’s conspiracy direction"], "SentGuideWhich": ["section 34 of the Criminal Justice and Public Order Act 1994", "Section 5(3) of the Misuse of Drugs Act 1971", "Section 1(1) of the Criminal Law Act 1977", "S.5(6) of the Criminal Procedure and Investigations Act 1996"], "AppealOutcome": ["appeal is allowed. The sentence of eleven years is quashed and sentence of ten years is substituted.", "allow Jason Smith’s appeal, quash the sentence of sixteen years and substitute for it a sentence of thirteen years’ imprisonment", "dismissed.", "dismissed the appeals against conviction of Parkinson and Davey", "complaints are therefore rejected.", "are dismissed.", "Lowe’s appeal against conviction was dismissed.", "against sentence is dismissed.", "appeal is dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["it was too long in the context of the other defendants"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["Liverpool Crown Court"], "ConvictPleaDate": ["2000-09-05", "2000-09-04", "1900-12-05", "2000-12-04"], "ConvictOffence": ["possession of a controlled class B drug with intent to supply", "possessing a controlled class A drug with intent to supply", "conspiracy to supply controlled drugs"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Liverpool Crown Court"], "Sentence": ["imprisonment", "Frederick was sentenced to 14 years", "Stephen Smith was sentenced to 11 years", "Jason Smith 16 years", "Hillhands 11 years", "Ellis 16 years", "Davey 16 years", "Neary 16 years", "Parkinson 21 years", "Lowe 24 years"], "SentServe": ["Consecutive"], "WhatAncillary": ["drug confiscation order"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["prosecution evidence in relation to Lowe was that he was in regular contact", "Documentation", "Digital", "Police evidence"], "DefEvidTypeTrial": ["good character", "Two other witnesses", "Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["culpability", "different stolen motorcars", "Financial gain /value", "repeated importations"], "MitFactSent": ["impact on him and his family", "good character", "model prisoner", "remorse", "behaved well in prison", "personal mitigation is that he has been married ten years and has six children"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["4"], "AppealAgainst": ["against conviction and sentence"], "AppealGround": ["the judge was wrong to refuse no fewer than four applications,", "the judge’s conspiracy direction", "the judge was wrong in refusing to permit the defence statement"], "SentGuideWhich": ["section 34 of the Criminal Justice and Public Order Act 1994", "S.5(6) of the Criminal Procedure and Investigations Act 1996", "Section 1(1) of the Criminal Law Act 1977", "Section 5(3) of the Misuse of Drugs Act 1971"], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence", "Hillhands", "Allowed&Sentence Replaced by More Lenient Sentence", "Dismissed-Failed-Refused", "Dismissed-Failed-Refused", "sentence-Parkinson", "Dismissed-Failed-Refused", "Dismissed-Failed-Refused", "Dismissed-Failed-Refused", "Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["it was too long in the context of the other defendants"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
515
Neutral Citation Number: [2012] EWCA Crim 2211 Case No: 2012/01742/B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 3 October 2012 B e f o r e : THE VICE PRESIDENT LORD JUSTICE HUGHES MR JUSTICE WILKIE MR JUSTICE POPPLEWELL ---------------------------------- R E G I N A v MAURICE FERRITER ---------------------------------- Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) ---------------------------------- Mr D Oscroft appeared on behalf of the Appellant Mr M Connor appeared on behalf of the Crown ---------------------------------- J U D G M E N T 1. THE VICE PRESIDENT: This defendant was convicted of attempted rape. His appeal as originally formulated was founded on the submission which was made to the judge that there was insufficient evidence to leave to the jury that what he did was more than a merely preparatory act. However, as the argument has developed it has become apparent that there is a second line to the submission, which is that there was insufficient evidence to leave to the jury to justify the inference that, even assuming there was a more than merely preparatory act, the intent was not merely to assault the complainant sexually, but to commit the specific offence of rape. 2. The background is this. The defendant had spent the evening drinking in a public house where the complainant was the barmaid. He appears to have been there all night, and he had no doubt been drinking most of the time. By the end of the evening he was the only remaining customer and she was alone behind the bar. Nobody else seems to have been in the building at all, certainly not in the bar in question. 3. The complainant had for some time been ready to leave. She had her coat on and had her bag over her shoulder. She could be seen on the CCTV footage which the jury saw standing about, quite patently waiting for the last drinker in the bar to stop and go home. That was the defendant. He did not leave. He arrived instead behind the bar with her. He confronted her face to face and a struggle ensued. The two of them ended up on the floor. Part of the time he was on top of her on the floor and part of the time, because she struggled, they were more like side by side on the floor. She was successful in her struggles and eventually she broke free. She was able to run to another public house nearby and to get help. A man from the other public house went to the scene of the offence and was able to detain the defendant who was still there. 4. The defendant pleaded guilty to counts of theft of spirits, namely a bottle which he had detached from the optics, and of some money from the tills, all taken after the complainant had left the public house and run away. That left two counts for the jury to consider. Count 1 was a count of attempted rape and count 2 was a count of sexual assault. 5. At the conclusion of the Crown's case, Mr Oscroft on behalf of the defendant asked the judge to rule that there was insufficient evidence that anything more than mere preparation had taken place. That submission the judge refused. The submission is renewed before us. 6. It is a commonplace that attempted rape requires proof of two things. The first is an intention to rape, rather than to do anything else, and the second thing that must be proved is actions which are more than mere preparation for committing the offence. To borrow the language of Lord Bingham in R v Geddes [1996] Crim LR 894, it is often helpful to invite the jury to consider whether the defendant has done an act which shows that he has actually tried to commit the offence in question, or whether he has only got ready or put himself into a position or equipped himself to do so in future. 7. Mr Oscroft has referred us to a decision of this court in Beaney [2010] EWCA Crim. 2551 . That was a case in which the defendant accosted a woman who was leaving a railway station at night. He put some kind of weapon to her neck and pushed her into some bushes. She went to the ground but was able to break free and run away, leaving her bag behind. The defendant took her bag and was found later in possession of her i-Pod which had been in it. In due course his case was that it had been simple robbery or theft but there was no sexual motive at all. This court held that on the facts of that case there was insufficient evidence of an intent to rape, as distinct from an intent to commit a lesser sexual assault. For that reason the conviction for attempted rape was quashed and a conviction for attempted sexual assault was substituted. 8. It is essential to separate in the analysis of this case, as it was in Beaney , the evidence as to the defendant's intention on the one hand and whether there was more than mere preparation on the other. As we have said, the principal submission advanced to the judge and initially the principal submission advanced to us, focused on the second of those questions. But logically it makes sense to consider first the question of intention. 9. The defendant's case here, rather as Mr Beaney's case, was that there was nothing sexual in his mind at all. His case was that what he wanted to do was to take the money out of the tills behind the bar. Indeed it was his case that he told the unfortunate complainant that that is what he was after -- in effect that he said to her that she need not fear anything worse, he was only after the money. The evidence however belied that assertion. First, she said he had said no such thing and she would undoubtedly have heard it if he had. The jury plainly believed her and did not believe him. Secondly, her evidence, plainly accepted by the jury, was that he had tried while they were struggling on the ground, on something like three or perhaps four occasions, to pull her trousers down. True it was that because she was wearing a top coat the part of the trousers that he was able to get his hand on were at or about knee level, or possibly below, but that is what was accessible. Whilst it was of course a perfectly proper submission to make to the jury on his behalf, for Mr Oscroft to contend that he might simply have been trying to prevent her from getting up and running away, rather than actually trying to remove her trousers, the jury was quite entitled to take the view that that was not so, and plainly it did. 10. The first question in the case is accordingly whether there was evidence from which the jury could safely infer a sexual intent rather than the intent to rob which the defendant asserted. We are entirely satisfied that the jury had ample material on which to conclude that the intention was sexual molestation as distinct from robbery. If he had wanted the money, he would have said so and he did not. The attempt to remove her trousers, which the jury clearly accepted, is wholly inconsistent with robbery and only consistent with sexual intent. Her handbag which was over her shoulder and likely to contain something of some value was not touched. When he came in behind the bar he went straight to her, rather than to the tills, and when she ran away it was some little time before he went anywhere near the tills and then only after he can plainly be seen deliberating for some time whether to pour himself a glass from one of the optics or to take, as in the end he did, one of the bottles down. 11. The next question is however more difficult. It is whether there was material on which the jury could safely infer that the sexual intention which the defendant plainly had was to commit the specific offence of rape with all that that entails, rather than something unpleasant and sexual but not necessarily the particular kind of penetration which is rape. 12. We sympathise with the judge in leaving the entire case to the jury because it is not at all clear to us that the submission which we have just articulated was ever clearly made to the judge. But the answer of Mr Connor for the Crown to the simply expressed but penetrating question of my Lord, Popplewell J, is revealing. Was there, my Lord asked, any evidence or activity which was capable of justifying the conclusion which pointed to an intent to commit rape rather than, for example, an intent to molest her sexually under her clothes in some other way? Mr Connor's frank answer was that there was not, and he is right. In those circumstances we are, we think, driven to the conclusion that the conviction for attempted rape is unsafe. 13. Before we come to the consequences of that, we need to address the third question which is: was this a case in which the jury was entitled to say, assuming an intent either to rape or to commit some other sexual offence, that the activity of the defendant went beyond mere preparation into trying to do it? We have not the slightest doubt that his actions did go well beyond mere preparation and into trying to do it. He was engaged in the act of molesting the unfortunate complainant physically and trying to remove her trousers. If that is not more than mere preparation we are not at all sure that we know what is. We observe that in the case of Beaney this court reached a similar conclusion in relation to activities on the part of that defendant which were a good deal less explicit than the activities of this one. What had there been done was no more than to reach out a hand towards the complainant's leg. 14. The result therefore is that we are left with a case in which there was ample evidence of an intent to commit a serious sexual assault, involving the removal of the lady's trousers and thus, plainly, an assault directed at her private parts unclothed. The jury must, on the findings that it made, have concluded that that was his intent and they must in those circumstances, had they gone on to consider count 2, have concluded that there was in this case a sexual assault. There was clearly a physical assault and by section 78 of the Sexual Offences Act 2003 , touching or other activity is sexual if a reasonable person would consider that the act is of its nature sexual, but also if such a person would consider that, whilst of its nature it was equivocal, yet because of the purpose of the perpetrator it was sexual. This is a case of the second of those alternatives without, in our view, the slightest doubt. 15. In those circumstances, section 3 of the Criminal Appeal Act 1968 plainly applies and the right course for this court to take is, whilst quashing the conviction for attempted rape, to substitute a conviction of sexual assault. That means that we must then consider the question of sentence. 16. The judge passed a sentence of four years' imprisonment in respect of the count of attempted rape. Had it been a full rape it would plainly have been something in the order of five or six years. It is true that the physical assault of the complainant did not in this case, happily as it turned out, reach the interference with the complainant's private parts but it is plain that that was what the defendant was about. He was doing it at night against a vulnerable complainant, vulnerable in the sense that she was a lone woman doing her job in a public house where there was nobody else to support her. Had it not been interrupted by her succeeding in escaping, it might well have attracted quite a long sentence of imprisonment. Even as it was, it was a matter of no little gravity. It is not quite as bad as an attempt to commit the offence of rape, but there is not an enormous difference from that in an attempt to interfere with her unclothed private parts in some other way than by way of rape, given that in both cases it did not in fact proceed. Doing the best we can, we are entirely satisfied that a sentence of not less than three-and-a-half years' imprisonment is appropriate on the substituted count of sexual assault. 17. Accordingly, the outcome of this appeal is that the conviction for attempted rape is quashed, a conviction for sexual assault is substituted and the sentence for that is three-and-a-half years, concurrent to the sentence which was imposed by the judge in respect of counts 3 and 4 for the relatively insignificant thefts which the defendant carried out by way of afterthought.
{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["theft", "attempted rape"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["data not available"], "Sentence": ["four years' imprisonment"], "SentServe": ["concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["His"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["drinking"], "OffVicRelation": ["only remaining customer"], "VictimType": ["complainant was the barmaid"], "VicNum": ["complainant was the barmaid"], "VicSex": ["she"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["barmaid"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["CCTV footage"], "DefEvidTypeTrial": ["case was that what he wanted to do was to take the money"], "PreSentReport": ["data not available"], "AggFactSent": ["vulnerable complainant", "at night", "lone woman doing her job"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["conviction"], "AppealGround": ["there was insufficient evidence to leave to the jury"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["conviction for sexual assault is substituted", "conviction for attempted rape is quashed", "three-and-a-half years, concurrent"], "ReasonQuashConv": ["insufficient evidence to leave to the jury that what he did was more than a merely preparatory act."], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["Don't know"], "ConvictOffence": ["theft", "attempted rape"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["data not available"], "Sentence": ["four years' imprisonment"], "SentServe": ["Concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Yes-drinking"], "OffVicRelation": ["Stranger"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Female"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Employed"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Digital"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["lone woman doing her job", "at night", "vulnerable complainant"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["conviction"], "AppealGround": ["there was insufficient evidence to leave to the jury"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["three-and-a-half years, concurrent", "Allowed&Sentence Replaced by More Lenient Sentence", "conviction for attempted rape is quashed"], "ReasonQuashConv": ["insufficient evidence to leave to the jury that what he did was more than a merely preparatory act."], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
297
No. 2014/00253/B2 Neutral Citation Number: [2014] EWCA Crim 567 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Wednesday 19 March 2014 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Thomas of Cwmgiedd ) MR JUSTICE ROYCE and THE RECORDER OF STAFFORD ( His Honour Judge Tonking ) ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - - - R E G I N A - v - OBINNA EMMANUEL ACHOGBUO - - - - - - - - - - - - - - - - - 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 D Coward (Solicitor Advocate) appeared on behalf of the Applicant - - - - - - - - - - - - - - - - - J U D G M E N T Wednesday 19 March 2014 THE LORD CHIEF JUSTICE: 1. The court sits today to consider a reference by the Registrar under section 20 of the Criminal Appeal Act 1968. It provides: "If it appears to the registrar that a notice of appeal or application for leave to appeal does not show any substantial ground of appeal, he may refer the appeal or application for leave to the Court for summary determination; and where the case is so referred the Court may, if they consider that the appeal or application for leave is frivolous or vexatious, and can be determined without adjourning it for a full hearing, dismiss the appeal or application for leave summarily, without calling on anyone to attend the hearing or to appear for the Crown thereon." The background 2. The matters which have given rise to this reference by the Registrar can be briefly explained. As long ago as 15 August 2011 the applicant, a 45 year old man, was convicted at the Crown Court at Snaresbrook before His Honour Judge Tudor Owen and a jury of two counts of Sexual Assault of a Child under the age of 13, contrary to section 7(1) of the Sexual Offences Act 2003. He was sentenced to 18 months' imprisonment on both counts, to run concurrently. 3. The 9 year old complainant was the applicant's stepdaughter. The applicant had married the child's mother in Nigeria in 2007 and came to Britain in 2008. Between July 2008 and January 2009 the applicant lived with the family which comprised the mother, three children and the grandmother. During the day the applicant was left alone with the three children and the grandmother. The 9 year old girl gave evidence that on occasions while playing in their mother's room the younger children were sent out of the room and the applicant would lift up her top and suck her breasts. She said this happened two or three times between July 2008 and January 2009. She did not tell her mother what had happened at the time. The applicant was arrested. When he was interviewed he declined to comment. We shall return to that interview in a moment. 4. The applicant's evidence at trial was that his wife had acted in concert with the grandmother and the child to fabricate the allegations. 5. It is apparent from the papers with which we have been provided that Mr Mitchell Cohen, counsel who appeared for the applicant at the trial, advised against an appeal. It is evident from our consideration of the transcript of the trial that counsel conducted the case with great skill. It is right to point out that the judge described his closing speech as "excellent". 6. In October 2011 new solicitors, Kalber Struckley, were instructed by the applicant. They applied to the applicant's trial solicitors for the papers. In November 2011 copies of the papers were sent by e-mail to them. Nothing happened. 7. On 29 August 2012 the applicant instructed Coward & Co, the solicitors who now represent him. On 19 October 2012 Coward & Co asked the trial solicitors for the papers. On 12 January 2013 the papers were produced in circumstances where the Legal Services Ombudsman was critical of the delay that had occurred. We say that in fairness to Coward & Co. The first application for leave to appeal 8. Having received the papers, on 4 July 2013 what we will describe as the first application for leave to appeal was made to this court. It was put forward on grounds that an application had been made and granted to admit hearsay evidence of a named witness. The Grounds of Appeal set out the background and that particular single ground of appeal. There followed a number of pages of legal submissions drawing attention to such well-known cases as R v Al-Khawaja , R v Horncastle and other cases on the admissibility of hearsay evidence. 9. As a result of receiving that application, the court put in hand its usual enquiries. It ordered a transcript. It enquired into the detail as to what had happened. It quickly transpired that there had, in fact, been no hearsay application in respect of the named witness. The summing-up was sent to the solicitors to consider whether there were any grounds to be put forward, and the solicitors were informed that no such hearsay application had been made or granted and no statements admitted. 10. Eventually, in September 2013 Coward & Co conceded that the evidence which was said to be hearsay was not before the jury and that the grounds were misconceived. That was the end of the first application. The second application for leave to appeal 11. On 8 January 2014 a second application made on behalf of the applicant was received by the court. It was evident from a mere perusal of the second application that the paragraphs of the first application which summarised the facts had been adopted wholesale. Indeed, it is accepted today before us that the author of the second Grounds of Appeal had been the author of the first Grounds of Appeal and was fully aware of them. The grounds put forward on this occasion were these: "The [applicant] had provided a no comment interview which was referred to in the learned judge's summing-up. The [applicant] was not advised by his legal team as to whether or not he should waive privilege so that the jury could consider the reason why his solicitors had advised him to provide a no comment interview. Given the nature and seriousness of the allegations the [applicant] faced, it was imperative that the [applicant's] solicitors fully advise the [applicant] as to the pros and cons of waiving privilege and allowing the jury to see why the advice was given by the [applicant's] solicitors and more importantly so that the jury could see that the [applicant] had denied the offence when he gave instructions to his solicitors at the police station. The failure of the [applicant's] solicitors to correctly advise him in relation to waiving privilege has interfered with the [applicant's] right to a fair trial as he had been the victim of professional negligence." A number of authorities are set out to support a ground of appeal based on the incompetence of counsel and the other legal representation. The Notice of Appeal then referred to the application for an extension of time in which to lodge an appeal. It stated: "The [applicant] asks that he be allowed to lodge his appeal out of time. He instructed new solicitors to undertake his appeal as he had previously received a negative advice. The [applicant's] new solicitors had considerable difficulty in obtaining the case papers from his former solicitors. Only the intervention of the Solicitors Regulation Authority had allowed the papers to be obtained by his new representatives." 12. There is nothing in the second application for leave to appeal that refers in any way to the first application made to this court. We have been told by Mr Coward that he did not omit that intentionally. All we can do is to note that there was an omission. It was a very serious omission because the court did not have the correct information before it about the earlier application. As we have said in the course of argument, we do not enquire into why that happened. We are not in a position to do so. 13. On receipt of the second application for leave to appeal, in accordance with its usual procedures the court obtained a waiver of privilege and wrote to trial counsel and solicitors to obtain their explanation of what had been said. 14. It is clear from the response of the trial solicitors that there had been numerous complaints by the applicant, that many of them had been rejected out of hand, but, more importantly, that they had notes on the advice given at the police station in relation to the no comment interview. The notes showed that the solicitors' representative advised the applicant to make no comment during the interview after the applicant had said that he denied the allegations and that he could give no explanation as to why the allegations had been made. He was advised about adverse inference. Our determination under s.20 15. On the basis of that letter and of the other enquiries made by this court it is clear that this case is one that has absolutely no prospect of success. There are two reasons in our judgment why the matter falls within section 20. First, it is frivolous and vexatious because in making the application for the extension of time the court did not have the proper explanation put before it. We will not enquire into the reasons for that, but it was a serious non-disclosure. Secondly, following enquiries it is clear beyond argument that the grounds put forward for bringing this application are bound to fail. It must follow that it is frivolous and vexatious. Applications made on the basis of allegations of incompetence against the trial advocate and solicitor 16. Of late it has become the habit for a number of cases to be brought on appeal to this court on the basis of incompetent representation by trial solicitors or trial counsel. As in this case, many such cases proceed without any enquiry being made of solicitors and counsel who acted at trial. That means that the lawyer who brings such an application acts on what is, ex hypothesi, the allegations of a convicted criminal - and in this case a convicted paedophile. For a lawyer to put forward such allegations based purely on such a statement, and without enquiry, is in our view impermissible. Before applications are made to this court alleging incompetent representation which is based upon an account given by a convicted criminal, we expect lawyers to take proper steps to ascertain by independent means, including contacting the previous lawyers, as to whether there is any objective and independent basis for the grounds of appeal. 17. As long ago as 1997 in R v Doherty and McGregor [1997] 2 Cr App R 218, this court drew attention to the fact that it was proper for fresh representatives as a matter of courtesy to speak to former counsel before grounds of appeal are lodged. Today circumstances have changed. The frequency of this kind of appeal makes it clear to us that counsel and solicitors would be failing in their duty to this court if they did not make enquiries which would provide an objective and independent basis, other than complaints made by the convicted criminal, as to what had happened. 18. The failure in this case has caused significant costs to be incurred by this court. For example, the transcript of the summing-up alone cost £388.80. In addition, there are the costs of running the office, the lawyers' time and the delay to other cases. It is, therefore, essential that counsel and solicitors in this kind of application, which has become more frequent, take the steps we have outlined. The use of the court’s powers under s.20 19. It is deeply regrettable that this court has had to employ its powers under section 20. We have been referred to R v Taylor [1997] Crim LR 649 and to an observation of Lawton LJ in the Court of Appeal in the case of DPP V Majewski [1977] AC 443 (which is well known for other reasons) at 451 A-D. The instances of the court exercising this power have been few. It did so recently in R v Davis and Thabangu [2013] EWCA Crim 2424 . 20. The court will henceforth consider exercising this power more frequently if cases of the type referred to us today occur again. The court expects not only the highest standards of disclosure but also strict compliance with the duties of advocates and solicitors. It is the fundamental duty of advocates and solicitors to make applications to this court after the exercise of due diligence. In cases where the incompetence of trial advocates or solicitors is raised, the exercise of due diligence requires, having made enquiries of trial lawyers said to have acted improperly, taking other steps to obtain objective and independent evidence before submitting grounds of appeal to this court based on allegations of incompetence. Reference to the Solicitors Regulation Authority 21. In the instant case the fact that the second Grounds of Appeal were advanced without any mention of the first is, in our view, a matter that should be enquired into by the Solicitors Regulation Authority. They can conduct the necessary enquiries. We express no view as to how this came about, but we think that it is important for the good and proper administration of justice that the Solicitors Regulation Authority do so. We shall ask the Registrar to refer the matter to that Authority.
{"ConvCourtName": ["Crown Court at Snaresbrook"], "ConvictPleaDate": ["15 August 2011"], "ConvictOffence": ["Sexual Assault of a Child under the age of 13"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Snaresbrook"], "Sentence": ["18 months' imprisonment"], "SentServe": ["concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["man"], "OffAgeOffence": ["45"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["lived with the family"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["applicant's stepdaughter"], "VictimType": ["9 year old complainant"], "VicNum": ["The 9 year old complainant"], "VicSex": ["applicant's stepdaughter"], "VicAgeOffence": ["9"], "VicJobOffence": ["9 year old complainant"], "VicHomeOffence": ["lived with the family"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["9 year old girl gave evidence"], "DefEvidTypeTrial": ["applicant's evidence at trial was that his wife had acted in concert with the grandmother"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["applicant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal or application for leave to appeal"], "AppealGround": ["The [applicant] was not advised by his legal team as to whether or not he should waive privilege", "grounds that an application had been made and granted to admit hearsay evidence of a named witness"], "SentGuideWhich": ["section 7(1) of the Sexual Offences Act 2003", "section 20 of the Criminal Appeal Act 1968"], "AppealOutcome": ["it is clear that this case is one that has absolutely no prospect of success."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["the grounds put forward for bringing this application are bound to fail. It must follow that it is frivolous and vexatious."]}
{"ConvCourtName": ["Crown Court At Snaresbrook"], "ConvictPleaDate": ["2011-08-15"], "ConvictOffence": ["Sexual Assault of a Child under the age of 13"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Snaresbrook"], "Sentence": ["18 months' imprisonment"], "SentServe": ["Concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["45"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Female"], "VicAgeOffence": ["9"], "VicJobOffence": ["Child"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Victim testimony"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Other"], "AppealGround": ["The [applicant] was not advised by his legal team as to whether or not he should waive privilege", "grounds that an application had been made and granted to admit hearsay evidence of a named witness"], "SentGuideWhich": ["section 7(1) of the Sexual Offences Act 2003", "section 20 of the Criminal Appeal Act 1968"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["the grounds put forward for bringing this application are bound to fail. It must follow that it is frivolous and vexatious."]}
150
Neutral Citation Number: [2007] EWCA Crim 1913 Case No: 200606462 A4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM KINGSTON UPON THAMES CROWN COURT Mr Recorder Shorrock T20067177 Royal Courts of Justice Strand, London, WC2A 2LL Date: 31/07/2007 Before: LORD JUSTICE TOULSON MR JUSTICE WALKER and HIS HONOUR JUDGE WADSWORTH QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISON) - - - - - - - - - - - - - - - - - - - - - Between: R Respondent - and - LIBAN ABDI Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Tim Banks instructed for the Appellant Ms Sarah Ellis instructed for the Respondent Hearing date: 14 June 2007 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Toulson : 1. Liban Abdi pleaded guilty at Kingston upon Thames Crown Court on 23 October 2006 to an offence of assaulting a child under 13 by penetration, contrary to s 6(1) of the Sexual Offences Act 2003 . On 27 November 2006 he was sentenced by Mr Recorder Philip Shorrock to 5 years’ imprisonment and recommended for deportation. 2. His application for permission to appeal was considered on paper by Roderick Evans J. He refused permission to appeal against the custodial part of the sentence, and that part of his application has not been pursued. He referred the application for leave to appeal against the recommendation for deportation to the full court because there was doubt whether prior notice had been given as required by s 6(2) of the Immigration Act 1971 (as amended) before the recommendation was made. This point had not been raised in the grounds of appeal but it had been spotted by the casework lawyer in the criminal appeal office, who brought it to the attention of the single judge. The point was then taken up in the skeleton argument prepared by Mr Tim Banks, who appeared for the defendant at the trial and before this court. Because the point is of some general importance, we considered it right to give leave to appeal. Mr Banks challenged the recommendation for deportation both on the grounds of lack of notice and on the merits, so it is necessary to summarise the facts. The facts 3. The appellant is a Somali national, who came of the United Kingdom illegally in 2003. He claimed asylum, but his application was rejected. At the time of the offence he was aged 30 and had no previous convictions. 4. The victim was an 8 year old boy. The offence happened at his home. The appellant had gone there to visit other members of the boy’s family, but they were out. He had visited the family previously, but he had not met the boy. On this occasion the only people at home were the boy and his grandmother. She was not feeling well and went to her room, leaving the appellant alone with the boy. The boy was watching television and the appellant joined him. With the boy on his lap, the appellant began to masturbate. He pulled down the boy’s clothing and penetrated his anus with his finger. He then ejaculated and semen was found on the boy’s pants. 5. The boy said nothing at the time, but he later asked his mother if they could stop living there because he did not like the appellant. He then explained what had happened. 6. The appellant was interviewed but denied the offence. He said that the boy had made up the story. He pleaded guilty on the morning of the trial. 7. The victim’s mother said in an impact statement that the victim’s life had been seriously affected. He did not sleep properly, and he seemed to become worried and angry very quickly. He said that he would not forget what had happened for the rest of his life. 8. A pre-sentence report assessed the appellant as posing a high risk of harm to young children. He was sexually aroused by young boys and the probation officer expressed concern that he sought to explain the offence as a misjudgement influenced by alcohol. 9. The recorder asked counsel for the prosecution, at the end of his opening of the facts at the sentence hearing, whether a form IM3 had been served on the appellant. The reply was, “I understand from my learned friend that it has, yes.” Mr Banks then addressed the recorder on sentence, including the question whether there should be a recommendation for deportation. 10. Mr Banks told us that in conference prior to the sentencing hearing he asked the appellant through an interpreter if he had been served with an IM3 form and he explained what this was. The reply was that some document about deportation had been served on him after his arrest. Mr Banks believed from what he was told that the form had been served. Mr Banks also readily accepted that if the form had not in fact been served, no prejudice was caused to the appellant by the omission, and that he had been able to put before the recorder all that he could properly say on the subject of deportation. Immigration Act 1971 11. A person who is not a British citizen may become liable to deportation under s 3(5) or 3(6), which provide as follows: “(5) A person who is not a British citizen is liable to deportation from the United Kingdom if – (a) the Secretary of State deems his deportation to be conducive to the public good;… (6) Without prejudice to the operation of subsection (5) above, a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.” 12. Section 6 deals with recommendations by a court for deportation. Its provisions include the following: “(1) Where under section 3(6) above a person convicted of an offence is liable to deportation on the recommendation of a court, he may be recommended for deportation by any court having power to sentence him for the offence unless the court commits him to be sentenced or further dealt with for that offence by another court… (2) A court shall not recommend a person for deportation unless he has been given not less than seven days notice in writing stating that a person is not liable to deportation if he is a British citizen, describing the persons who are British citizens …; but the powers of adjournment conferred by section 10(3) of the Magistrates’ Courts Act 1980 , section 179 or 380 of the Criminal Procedure (Scotland) Act 1975 or any corresponding enactment for the time being in force in Northern Ireland shall include power to adjourn, after convicting an offender, for the purpose of enabling a notice to be given to him under this subsection or, if a notice was so given to him less than seven days previously, for the purpose of enabling the necessary seven days to elapse. ” 13. Form IM3 is the standard form used under s 6(2). The argument about notice 14. Mr Banks’ argument was very simple. It was as follows: 1. Diligent enquires have been made and there is no documentary evidence that a form IM3 was ever served on the appellant. It must therefore be taken that it was not served. It would not be fair to regard it as having been served from what the appellant told Mr Banks in conference, since the discussion was through an interpreter and imprecise. 2. The language of s 6(2) contains an unambiguous prohibition on a court making a recommendation for a deportation unless the appropriate notice has been given, and the recommendation was therefore unlawful. 15. Counsel for the prosecution, Ms Sarah Ellis, did not oppose either proposition. 16. We have no difficulty accepting Mr Banks’ first proposition. We would have liked to hear full argument on the second point. Discussion 17. We are unaware of any direct authority on the question whether a recommendation for deportation must necessarily be quashed if the notice required by s 6(2) had not been given. 18. Mr Banks relied on the case Nazari [1980] 1 WLR 1366, 1373 A, where Lawton LJ said: “A person who is likely to be the subject of an order must be given 7 clear days notice of what may happen to him. The object of that is to enable him to prepare his answer to a suggestion that he should be recommended for deportation.” 19. However, the court was not there concerned with the consequences of a failure to serve the required notice. That was not an issue before the court. 20. The decision of the House of Lords in Soneji [2005] UKHL 49 , [2006] 1 AC 340 , provides important guidance on how a court should approach the consequences of a failure to comply with a statutory requirement of this kind. The case concerned the procedural requirements of s 72A of the Criminal Justice Act 1988 governing postponed determinations of confiscation proceedings. Section 72A(3) stated: “Unless it is satisfied that there are exceptional circumstances, the court shall not specify a period under subsection (1) above [i.e. a period of postponement of the determination] which – (a) by itself; or (b) where there have been one or more previous postponements under subsection (1) above or (4) below, when taken together with the earlier specified period or periods, exceeds six months beginning with the date of conviction.” 21. This court held that the wording of that provision was fatal to the validity of a confiscation order which had been made after a postponement of more than 6 months without exceptional circumstances. The House of Lords reversed that decision. 22. Lord Steyn said at [14]: “A recurrent theme in the drafting of statutes is that Parliament casts its commands in imperative form without expressly spelling out the consequences of a failure to comply. It has been the source of a great deal of litigation. In the course of the last 130 years a distinction evolved between mandatory and directory requirements. The view was taken that where the requirement is mandatory, a failure to comply with it invalidates the act in question. Where it is merely directory, a failure to comply does not invalidate what follows.” 23. Lord Steyn went on to trace the development of a new and more flexible approach through a line of authorities including London and Clydeside Estates Limited v Aberdeen District Council [1980] 1 WLR 182 , 189-190 (Lord Hailsham of St Marylebone LC), Wang v Comr of Inland Revenue [1994] 1286, 1296 (Lord Slynn of Hadley) and the decision of the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 , which Lord Steyn at [21] described as the most valuable decision in the evolution of this corner of the law in the common law world. 24. In the judgment in Project Blue Sky , cited by Lord Steyn at [21], it was said that a court determining the validity of an act done in breach of a statutory provision may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. The court considered that a better test for determining the issue of validity is to ask whether it was a purpose of legislation that an act done in breach of the provision should be invalid. In determining that question, regard must be had to the language of the relevant provision and the scope and object of the whole statute. 25. Agreeing with that approach, Lord Steyn said at [23] that the emphasis ought to be on the consequences of non-compliance and on the question whether Parliament could fairly have been taken to have intended total invalidity. 26. Looking at the matter in that way, Lord Steyn observed that any prejudice to the defendants caused by the delayed determination of the confiscation proceedings was not significant, and was decisively outweighed by the countervailing public interest in not allowing an offender to escape confiscation for what were no more than bona fide errors in the judicial process. 27. The other members of the Judicial Committee either agreed with Lord Steyn or gave judgments adopting the same approach. 28. The broad purpose of the deportation provisions in the Act is to enable the removal from the United Kingdom of those of who have no right to be here and whose deportation would be to the public good. Where a decision to deport is taken, whether under s 3(5) or s 3(6), there is a right of appeal to the Asylum and Immigration Tribunal under s 82(2)(j) of the Nationality, Immigration and Asylum Act 2002 . The right to appeal against a decision taken after a recommendation by a criminal court is new. 29. The language of s 6(2) might suggest that its purpose is to avoid the risk of a person being recommended by a court for deportation who is not eligible to be deported because he is a British Citizen. But the appellant is not a British citizen. It is difficult to see why Parliament should have intended that a recommendation for deportation of a non-British citizen should be automatically invalidated by a failure to serve a notice which would on the facts have been irrelevant to the offender. 30. The purpose of s 6(2) may, however be the wider purpose suggested in Nazari of putting the defendant on notice of the possibility of the making of a recommendation for deportation, so as to give him time to prepare to address the possibility on the merits. Even on that basis, in this case the appellant and his counsel were aware of the risk of such a recommendation and Mr Banks was able to make his submissions to the recorder on it. He also recognised that it is a particularly unappealing point in terms of any substantial merit in circumstances where the appellant’s case was conducted on the basis that the appropriate notice had been served and the judge was led to believe that it had been served. 31. If it were to happen that a court made a recommendation for deportation against a person who was a British citizen, and therefore ineligible to be deported, there would be a number of other safeguards within the statutory scheme. First, the recommendation is just that – a recommendation and not an order. It would be open to the offender or his representatives to draw the position to the attention of the Secretary of State. Secondly, there could be an appeal against the recommendation to this court. Thirdly, if a deportation order were made, there could be an appeal to the Asylum and Immigration Tribunal. Fourthly, as a matter of practicality, the process for carrying out a deportation requires Home Office officials to obtain personal details regarding the deportee’s citizenship in order to prepare the necessary travel documentation. 32. Recommendations for deportation are not always opposed by defendants. Sometimes a defendant will recognise that a deportation recommendation is inevitable, or may even welcome it, and may wish the sentencing process including the recommendation for deportation to be completed as quickly as possible. According to Mr Banks’ argument, if in such a case the defendant had not received the prescribed notice, the court would have no power to make an unopposed recommendation for deportation, but would be compelled to adjourn the matter to everyone’s cost and inconvenience. 33. Bearing these considerations in mind, we do not believe that the court should impute to Parliament an intention that non-compliance with s 6(2) should necessarily render a recommendation for deportation invalid. Unless that were the proper construction of the Act, the ground of appeal based on lack of notice must in this case fail. 34. We would add that if we had accepted the appellant’s argument on this point, his victory would in all likelihood would have been pyrrhic, since it would remain open to the Secretary of State to make a deportation order under s 2(5) on the ground that it would be conducive to the public good. The merits of the deportation order 35. In his sentencing remarks the recorder said : “You are liable to be deported from this country and given the very serious nature of this offence it is my view that your continued presence is to the detriment of this country and those that live here. Accordingly, I do recommend that you are deported when you are released from your prison sentence.” 36. It was submitted on the appellant’s behalf that the decision to make a recommendation for deportation was wrong. It was an isolated offence, for which the appellant had shown full remorse, and the recorder had not found for the purposes of s 229 of the Criminal Justice Act 2003 that he presented a significant risk to members of the public of serious harm by the commission of further offences. 37. As to the last point, the recorder concluded that if the appellant were to commit a similar offence in future he would undoubtedly cause serious harm, and that there was some risk of him doing so. However, bearing in mind, in particular, the appellant’s age and lack of previous convictions, he gave him “the benefit of the doubt” and did not find that there was a significant risk of him re-offending. This conclusion coincided with the assessment, albeit qualified, in the pre-sentence report. The probation officer wrote: “On the basis that this is Mr Abdi’s first conviction and his current age it is presumed that his risk of re-offending would be low. This is evidenced by the Offender Group Re-Conviction Scale which has assessed his risk of re-offending at 13%. However, given the fact that we do not have any substantiated knowledge save from the defendant’s word, I believe that this assessment is limited.” 38. There is no inconsistency between the recorder’s conclusion that the criteria of s 229 were not established and his decision to make a recommendation of deportation. For the purposes of s 229, he had to be satisfied that there was both a significant risk of the appellant committing further offences and a significant risk of him causing serious harm to the public by doing so. For the purposes of deciding whether to recommend deportation, he was entitled to balance both the degree of risk of the appellant re-offending and, if so, the likely harm which would result. He concluded that there was a risk of the appellant re-offending (although not such as to satisfy s 229), and that, if he did so, the result would undoubtedly be to cause serious harm. The recorder was fully entitled to conclude that it was not conducive to the public interest that young children should be exposed to such a risk. 39. Although the offence was not pre-planned and there was a level of remorse, it was a grave offence committed on a child whom he had not previously met but was in his temporary trust. 40. In our judgment no complaint can properly be made about the recommendation for deportation. The appeal is accordingly dismissed.
{"ConvCourtName": ["Kingston upon Thames Crown Court"], "ConvictPleaDate": ["23 October 2006"], "ConvictOffence": ["assaulting a child under 13 by penetration"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["guilty on the morning of the trial."], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Kingston upon Thames Crown Court"], "Sentence": ["5 years’ imprisonment and recommended for deportation."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["was aged 30"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["had not met the boy."], "VictimType": ["victim was an 8 year old boy."], "VicNum": ["victim was an 8 year old boy."], "VicSex": ["victim was an 8 year old boy."], "VicAgeOffence": ["victim was an 8 year old boy."], "VicJobOffence": ["victim was an 8 year old boy."], "VicHomeOffence": ["his home."], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["explained what had happened."], "DefEvidTypeTrial": ["denied the offence."], "PreSentReport": ["high risk of harm"], "AggFactSent": ["temporary trust.", "grave offence committed on a child"], "MitFactSent": ["level of remorse", "not pre-planned"], "VicImpactStatement": ["impact statement"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal against the recommendation for deportation"], "AppealGround": ["because there was doubt whether prior notice had been given"], "SentGuideWhich": ["Immigration Act 1971", "s 6(1) of the Sexual Offences Act 2003."], "AppealOutcome": ["appeal is accordingly dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["no inconsistency between the recorder’s conclusion that the criteria of s 229 were not established and his decision"]}
{"ConvCourtName": ["Kingston Upon Thames Crown Court"], "ConvictPleaDate": ["2006-10-23"], "ConvictOffence": ["assaulting a child under 13 by penetration"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["guilty on the morning of the trial."], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Kingston Upon Thames Crown Court"], "Sentence": ["5 years’ imprisonment and recommended for deportation."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know", "30"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Stranger"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Male"], "VicAgeOffence": ["8"], "VicJobOffence": ["Child"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["No"], "ProsEvidTypeTrial": ["Victim testimony"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["High risk of harm"], "AggFactSent": ["Breach of trust", "grave offence committed on a child"], "MitFactSent": ["level of remorse", "not pre-planned"], "VicImpactStatement": ["Yes"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Sentence"], "AppealGround": ["because there was doubt whether prior notice had been given"], "SentGuideWhich": ["Immigration Act 1971", "s 6(1) of the Sexual Offences Act 2003."], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["no inconsistency between the recorder’s conclusion that the criteria of s 229 were not established and his decision"]}
266
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202301562/B3 Neutral Citation Number: [2024] EWCA Crim 519 Royal Courts of Justice Strand London WC2A 2LL Wednesday 1 May 2024 Before: LORD JUSTICE LEWIS MR JUSTICE GOSS HER HONOUR JUDGE MONTGOMERY KC (Sitting as a Judge of the CACD) REX V LEE HAMMILL __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MS N ROBERSON appeared on behalf of the Applicant. _________ J U D G M E N T 1. LORD JUSTICE LEWIS: The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Consequently, where a sexual offence has been committed against a person, no matter relating to that person shall, during that person’s lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offence. 2. On 17 April 2023, in the Crown Court at St Albans, the applicant, Lee Hammill (then aged 31), was convicted of a number of offences. Two were offences of rape of a child under the age of 13. Two were offences of assault of a child under 13 by digital penetration and two similar offences by penetration with his tongue. Nine others were offences of sexual activity with a child. The applicant was sentenced to a total of 12 years, comprising a custodial term of 11 years and an additional 1-year licence period. The applicant’s application for leave to appeal against conviction was refused by the single judge. He renews his application for leave to appeal against conviction. 3. The facts can be stated shortly. The complainant was a child whom we will refer to as “AB”. A member of her family was in a relationship with the applicant. The prosecution alleged that from the age of 11 to 14, the applicant penetrated AB’s vagina with his fingers and his tongue, and anally raped her on two occasions. When AB was between the ages of 13 and 14, the applicant was again accused of penetrating her vagina with his fingers and his tongue and, on occasions, penetrating her anus with his penis. 4. The prosecution relied upon evidence from AB. There was also evidence from others including AB’s first partner. The applicant also gave evidence. He has autism and very shortly before he gave evidence it was decided that he would have an intermediary to assist him. The applicant denied that any sexual activity had occurred between him and AB. AB’s mother also gave evidence on behalf of the prosecution. She in fact said that AB had made it all up and she was cross-examined and asked questions in re-examination by the prosecution. It is clear, having read all the material put before us, that the central issue in the case was whether the prosecution had made the jury sure that each alleged event on each count had in fact happened. 5. On behalf of the applicant, Ms Roberson has made very detailed, very clear and very helpful written and oral submissions. She advanced four grounds of appeal. Grounds 1 and 2 can be taken together, but it is important to remember that that Ms Roberson submits that the grounds individually but also cumulatively give rise to questions about the safety of the conviction. 6. In relation to ground 1, Ms Roberson submits that the Recorder usurped the role of the jury by making repeated pro prosecution comments in the summing-up. Ms Roberson has set them all out in her detailed skeleton argument. She took us through a number of those, drawing attention in particular to items in paragraph 9 of her written argument and to what are said to be improper comments set out in paragraph 17 of her skeleton argument, drawing attention to some of those points in particular.Ms Roberson relied upon the decision in R v Mears [1993] 1 WLR 818 that, if a summing-up is fundamentally imbalanced, it cannot be corrected simply by the judge telling the jury that the assessment of the evidence was a matter for them. Alternatively, in relation to ground 2, Ms Roberson submits that the Recorder gave a summary of evidence that was so diffuse and unstructured as to be of no assistance to the jury. 7. Ground 3 is that the judge failed to allow the intermediary to assist the applicant to the best of her abilities during his evidence. Again, in her written submissions and orally, Ms Roberson took us through the various examples that she submitted exhibited those errors. She pointed out that the ground rules hearing, by which the rules relating to how the evidence was going to be taken from the applicant, had not been done in a way that met the recommendations of the Advocate’s Toolkit. The applicant did not have the ground rules hearing until shortly before he gave evidence even though Ms Roberson had asked for a ground rules hearing on the previous day. After 90 minutes the applicant stopped giving evidence and then, over a period of time, counsel reformulated his questions to make them more comprehensible by the applicant but, by that stage, Ms Roberson submitted that it was too late and the impact of the 90 minutes could not be minimised because the applicant would by then have felt confused. She submitted that the judge overruled the intermediary at a number of points. Not, it seems, expressly turning down anything the intermediary says but rather when the intermediary said something or raised her hand in an attempt to assist the applicant, Ms Roberson submitted that the Recorder effectively ignored the intermediary. There had been a recommendation for breaks at periodical intervals. There had not been a break. The intermediary requested a break but one was refused and the taking of evidence from the applicant continued. 8. Ground 4 concerns the fact that Ms Roberson submitted that the Recorder erred by allowing the prosecution to cross-examine their own witnesses. That is a reference to AB’s mother in particular, although it is said the error occurred in relation to AB’s father in evidence as well. In relation to AB’s mother, two particular points that Ms Roberson made was that the prosecution, in re-examination, was allowed to ask whether the mother had said in the written statement that she made to the police that her daughter had made it all up, and the mother said it was something she had told the police but the policeman had not written it down. Ms Roberson submits that although it was not expressly said by the prosecution, it is implicit, or the inference was, that the mother was making that part of her evidence up. The second point concerned re-examination on the question of timings and the time at which AB ceased to live at the parental home and went to live with her partner. There was an issue as to whether she had simply stayed with her partner from Christmas onwards and moved in with him in February, or whether she had in effect moved out of the family home in December. 9. We have read very carefully all the material submitted to us for this hearing, including the entirety of the summing-up and the transcripts of the re-examination of AB’s mother. We have also read the transcripts of the cross-examination and re-examination of the applicant, and we have read the autism spectrum disorder assessment and the intermediary report, although the intermediary at the hearing was a different one from the one who made the report. 10. We remind ourselves that the question for this Court in deciding whether to grant leave to appeal is whether the conviction is arguably unsafe. Having read the transcript of the summing-up in its entirety, we do not consider that it demonstrates that the Recorder usurped the role of the jury. The summing-up went through the Route to Verdict document explaining what the jury had to be sure of before they could convict the applicant on each of the counts. The Recorder reminded the jury that the applicant was of good character, which supported his credibility and made it less likely that he had committed the offences. The central issue in the case was whether or not the jury were sure that the conduct alleged in each count had in fact happened. 11. The Recorder summarised the evidence of AB. She also summarised the evidence given by the applicant. She set out his answers, including those where he said he had never shared a bed with AB or massaged her. He had never put his fingers or his tongue in her vagina and he said he had never put his penis in her anus. That was what the jury had to assess. It is correct that the Recorder said once, in the course of the transcript of the summing-up that “we suggest”, when, of course, it was the prosecution who was bringing the case and making submissions. The judge was not suggesting anything. The judge was presiding over the trial. The Recorder did however correct herself. We do not regard this error, unfortunate though it was, as demonstrating that the summing-up was fundamentally biased. Nor do we think that the summing-up was so diffuse or unstructured as to be of no assistance to the jury. Reading the summing-up as a whole and fairly, it was clear what the jury had to decide and what the central issues were, namely whether or not they were sure that the events in each of the counts had happened. They were told what the evidence was and what the defence case was. Grounds 1 and 2 do not arguably demonstrate that the conviction was unsafe. 12. In relation to ground 3 and the intermediary, we make the following observations. Intermediaries are important in a criminal trial. They assist vulnerable witnesses to give their evidence in the best way possible. It is important that consideration be given to how the arrangements are going to be operated and what needs to be done to enable the intermediary to function properly and to give his or her assistance to the witness. There are recommendations which deal with that. 13. Dealing with the criticism advanced here. The first concerns the fact that the arrangements did not provide for a ground rules hearing before or adequately before the start of the trial. That is obviously important because it allows people to focus and preparation to be made on the basis of how the intermediary is going to operate. However, we have to bear in mind the question here is the safety of the convictions. The fact of the matter is that a ground rules hearing was held shortly before the applicant gave evidence. The intermediary who was going to be present and acting as the intermediary at the trial did highlight certain points that she thought were important and which we understand were agreed to be the points that needed to be taken into account. They were that there were to be breaks to be taken every 40 minutes for 15 minutes, the appellant was to be reminded that he was not guessing, there be short and specific questions, common language was to be used, counsel was to avoid dates and refer to events instead, counsel was to signpost topic changes and these were to be ordered chronologically wherever possible, additional processing time should be allowed for the applicant to process the question and advocates were to speak slowly. Despite the criticism therefore of the timing of the holding of the ground rules hearing, it was held and the relevant points that the intermediary wanted brought out were brought out. 14. In terms of the report that had been prepared, that did refer to questions being written out. But, as far as we can see, that was not something that the intermediary raised on the day. There is no ground of appeal in relation to that and no complaint about that matter is made in the written skeleton argument. 15. So far as the starting of the cross-examination and the first 90 minutes is concerned, the position was this. Prosecution counsel has said that he had begun cross-examination without having time to rework his questions. In fact, he did rework his questions over the Easter weekend break. No examples were shown to us, where, in our judgment, on a fair reading of the transcript, the applicant was unable to give his evidence. On the question of the breaks, that came towards the end of the cross-examination. It was apparent there was a short time left and, when it was raised, the applicant indicated he did not want a break and he could, and did in fact, continue to give evidence without apparent difficulty. He also confirmed that the question and answers that he had given in response to the police interview were correct and the jury had that material as well. 16. We do not see any evidence that the judge overruled the intermediary, and in all the circumstances, reading the transcripts fairly, and considering the effect of what happened, we do not consider that it is arguable that the way in which the intermediary was dealt with gives rise to an arguable ground that the conviction was unsafe. 17. On ground 4, having read the examination and the re-examination, it seems to us that what happened in re-examination was that the Crown had confirmed with the witness that the reference to the witness’s daughter having made these allegations up was not in the statement and the witness explained why. She said she had given the information to the police but the policeman had not written it down. That was a matter for the jury to assess. 18. So far as the timing in relation to when AB moved out - was it Christmas or was it technically later in February? -we do not see that that matter could possibly affect the safety of the conviction, whether or not it was a question that should have been asked. So we do not see that ground 4 raises any arguable issue of the safety of the conviction. 19. Standing back from the four individual grounds of appeal, we have considered the four grounds cumulatively to see whether the effect of what Ms Roberson criticised has arguably rendered this conviction unsafe. We are satisfied that the errors that she says occurred do not in fact make an arguable case that the conviction was unsafe. For those reasons, we refuse leave to appeal. 20. We understand that maybe disappointing for the family. We thank them for the dignity they have shown in Court as they have listened to what must be a difficult judgment and we are grateful to Ms Roberson, for her written argument and helpful oral arguments. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]
{"ConvCourtName": ["Crown Court at St Albans"], "ConvictPleaDate": ["17 April 2023"], "ConvictOffence": ["rape of a child under the age of 13", "Nine others were offences of sexual activity with a child", "penetration with his tongue", "assault of a child under 13 by digital penetration"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at St Albans"], "Sentence": ["12 years"], "SentServe": ["data not available"], "WhatAncillary": ["1-year licence period"], "OffSex": ["Lee Hammill"], "OffAgeOffence": ["aged 31"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["has autism"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["A member of her family was in a relationship with the applicant."], "VictimType": ["child"], "VicNum": ["child under the age of 13."], "VicSex": ["her"], "VicAgeOffence": ["age of 13"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["There was also evidence from others including AB’s first partner", "The prosecution relied upon evidence from AB.", "AB’s mother also gave evidence on behalf of the prosecution."], "DefEvidTypeTrial": ["he applicant denied that any sexual activity had occurred between him and AB."], "PreSentReport": ["data not available"], "AggFactSent": ["he applicant denied that any sexual activity had occurred between him and AB.", "A member of her family was in a relationship with the applicant", "child under the age of 13"], "MitFactSent": ["has autism", "applicant was of good character"], "VicImpactStatement": ["data not available"], "Appellant": ["he applicant, Lee Hammill (then aged 31), was convicted of a number of offences."], "CoDefAccNum": ["data not available"], "AppealAgainst": ["leave to appeal against conviction"], "AppealGround": ["Recorder gave a summary of evidence that was so diffuse and unstructured as to be of no assistance to the jury.", "the judge failed to allow the intermediary to assist the applicant to the best of her abilities during his evidence", "usurped the role of the jury by making repeated pro prosecution comments in the summing-up", "erred by allowing the prosecution to cross-examine their own witnesses."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["we refuse leave to appeal."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["do not in fact make an arguable case that the conviction was unsafe."]}
{"ConvCourtName": ["Crown Court At St Albans"], "ConvictPleaDate": ["2023-04-17"], "ConvictOffence": ["Nine others were offences of sexual activity with a child", "penetration with his tongue", "assault of a child under 13 by digital penetration", "rape of a child under the age of 13"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court At St Albans"], "Sentence": ["12 years"], "SentServe": ["data not available"], "WhatAncillary": ["1-year licence period"], "OffSex": ["All Male"], "OffAgeOffence": ["31"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Learning/developmental"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Female"], "VicAgeOffence": ["13"], "VicJobOffence": ["Child"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["witness testimony", "victim testimony"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["denied offence", "A member of her family was in a relationship with the applicant", "child under the age of 13"], "MitFactSent": ["has autism", "applicant was of good character"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Other (e.g., application for extension of time to appeal)"], "AppealGround": ["erred by allowing the prosecution to cross-examine their own witnesses.", "the judge failed to allow the intermediary to assist the applicant to the best of her abilities during his evidence", "evidence should not have been submitted to the jury", "summing of case was biased"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["conviction was not unsafe"]}
534
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. Neutral citation No. [2023] EWCA Crim 1476 I N THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2023/02609/A3 Royal Courts of Justice The Strand London WC2A 2LL Tuesday 5 th December 2023 B e f o r e: LORD JUSTICE DINGEMANS MR JUSTICE GOOSE HIS HONOUR JUDGE DREW KC ( Sitting as a Judge of the Court of Appeal Criminal Division ) ____________________ R E X - v - MALIK DOUGLAS ____________________ 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 Radstone appeared on behalf of the Appellant Miss L McGarr appeared on behalf of the Crown ____________________ J U D G M E N T ____________________ LORD JUSTICE DINGEMANS: Introduction 1. The applicant's applications for an extension of time (13 days) and for leave to appeal against sentence have been referred to the full court by the Registrar. The need for the short extension of time arose because of counsel's workload, and it would be wrong to penalise the applicant for that. We will grant leave to appeal because it is apparent that there were errors made in the sentencing exercise. 2. The appellant is now aged 27; he was aged 26 at the time of sentencing. He had ten previous convictions for 20 offences, which included relevant convictions for eight drugs offences and two offences relating to shotguns, firearms and offensive weapons. Some of the drugs offences had been committed in July 2020, and the appellant was still on licence in relation to them. 3. On 26 th May 2023, in the Crown Court at Wood Green, the appellant pleaded guilty and was sentenced by Mr Recorder Taylor on 23 rd June 2023 as follows: on count 1, Possessing a prohibited firearm, contrary to section 5(1) (aba) of the Firearms Act 1968 , four years and six months' imprisonment; on count 2, Possessing a controlled drug (Class B, cannabis) with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971 , a consecutive term of two years and three months' imprisonment; and on count 3, Possessing criminal property, contrary to section 329(1) (c) of the Proceeds of Crime Act 2002 , a concurrent term of six months' imprisonment. The total overall sentence was one of six years and nine months' imprisonment. Supplementary orders were made for the forfeiture, destruction or disposal of the firearm, the drugs and the cash which had been seized. 4. There are three grounds of appeal. First, it is said that the sentence on count 1 was wrong in law. This arises from a point which has been identified by both counsel. It relates to the minimum term of five years' imprisonment required to be imposed for possession of the prohibited firearm (count 1). Secondly, it is said that the Recorder's starting point in relation to count 2 was too high. Thirdly, it is said that the Recorder failed to have regard to totality by the imposition of a consecutive sentence on count 2. Factual background 5. On 3 rd March 2023, police officers executed search warrants under the Firearms Act and the Misuse of Drugs Act at an address in Summerhill Road, London. Police officers gained entry to the property and found the appellant and his mother present. Police officers searched the premises and found a .38 calibre revolver (count 1). An attempt had been made to remove markings on the firearm which had been deactivated and then reactivated so that it was capable of firing cartridges. Police officers also found three separate packets of cannabis (count 2). The first packet contained 1.03 grams of cannabis; the second packet contained 10.2 grams; and the third contained 2.563 grams. The estimated wholesale value of the cannabis was £1,000 to £1,500, and the estimated street value of the cannabis was £2,280 to £2,670. On a table near the cannabis the police found £720 in cash (count 3, possessing criminal property). 6. The appellant was arrested. He was interviewed later that day. In interview, he made no comment. The sentence 7. No pre-sentence report was obtained. We agree that, given the inevitability of a substantial custodial sentence for possession of the firearm, no pre-sentence report was required. 8. The Recorder noted that it was agreed that the relevant category for the firearm was 3B, with a starting point of five years and six months, and a minimum term of five years' imprisonment. He recorded that the appellant had had a category 3 "significant role" in the offence charged in count 2, with a starting point of 12 months, with a range of 26 weeks to three years' imprisonment. The Recorder took into account the appellant's eight previous convictions for drug related matters. He took a starting point of 36 months and discounted it for the guilty plea, which gave a sentence of 27 months' imprisonment. 9. For mitigation, the Recorder considered the fact that the appellant had a young child and was attempting to build a relationship with the child's mother. The Recorder referred to totality and then imposed a sentence of 72 months, which he reduced by 25 per cent, for possession of the prohibited firearm, which gave 54 months' imprisonment. He imposed a consecutive term of 27 months' imprisonment for possession of the Class B drug with intent, and a concurrent term of six months' imprisonment for possession of the criminal property. That gave the total of six years and nine months' imprisonment. The appeal 10. In relation to ground 1 (the unlawful sentence in relation to the firearms matter), there is effectively common ground. There is a required minimum sentence of five years' imprisonment for this offence, unless the court is of the opinion that there are exceptional circumstances relating either to the offence or to the offender that justify not imposing such a sentence. There is no power to reduce the required minimum period to reflect a reduction for a guilty plea. The Recorder imposed a sentence of less than five years' imprisonment on count 1. He did not state that he had made a finding in relation to exceptional circumstances. The Recorder noted the minimum period, but then seems to have overlooked it when he applied credit for the guilty plea. 11. Section 11(3) of the Criminal Appeal Act 1968 prevents this court from increasing the total sentence. However, it is common ground that the court may restructure the sentence so that the sentence on count 1 is increased to five years' imprisonment to comply with section 311 of the Sentencing Act 2020 , so long as the overall sentence is not increased. 12. We therefore turn to the real point of the appeal: namely whether the sentence on count 2 should have been ordered to run concurrently with the sentence on count 1, with a small increase to the term of five years, rather than the six years and nine months' imprisonment to which the appellant was sentenced. 13. We have had careful regard to the sentencing guideline on totality, to which both Mr Radstone, who appears on behalf of the appellant, and Miss McGarr, who appears on behalf of the prosecution, have relied. We are grateful to both their helpful written and oral submissions. In so far as material, there is a passage in the guideline which reads: "Consecutive sentences will ordinarily be appropriate where: … b. offences committed in the same incident are distinct, involving an aggravating element that requires separate recognition. Examples include • … • where the offender is convicted of drug dealing and possession of a firearm offence. The firearm offence is not the essence or an intrinsic part of the drugs offence and requires separate recognition • … d. one or more offence(s) qualifies for a statutory minimum sentence and concurrent sentences would improperly undermine that minimum. Examples include • other offences sentenced alongside possession of a prohibited weapon (which attracts a five year minimum term) – any reduction on grounds of totality should not reduce the effect of properly deterrent and commensurate sentences. …" The drugs sentence and totality 14. In our judgment, the Recorder was entitled to place the offence of possession of Class B drugs with intent at the top of the relevant category range because of the substantial aggravating factor of eight relevant previous convictions. The discount for the guilty plea gave a sentence of 27 months' imprisonment. As an individual sentence, that would have been appropriate. In our judgment, the Recorder was right to order that sentence to run consecutively because it represented different offending and different criminality from the firearms offence, which is, as we have indicated, a point recognised in the totality guideline. 15. We have stood back and considered whether an adjusted sentence, as it will now have to be to avoid increasing the total sentence of 21 months' imprisonment for this separate offending, means that the overall sentence is not proportionate. We are unable to find that that is so. Although Mr Radstone made attractive and succinct submissions on behalf of the appellant, we would not have been minded to interfere with the sentence for the drugs offending in any event. In circumstances, however, where we have to increase the sentence for the firearms offence, we must reduce the sentence for the drugs offence to avoid infringing section 11(3) of the Criminal Appeal Act. 16. Accordingly, we will allow the appeal to this extent. The sentence on count 1 is increased from four years and six months to five years' imprisonment. The sentence on count 2 is reduced from 27 months to 21 months imprisonment. This means that the overall length of the sentence remains as it was, at six years and nine 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] ______________________________
{"ConvCourtName": ["Crown Court at Wood Green"], "ConvictPleaDate": ["26th May 2023"], "ConvictOffence": ["Possessing criminal property", "Possessing a controlled drug (Class B, cannabis) with intent to supply", "Possessing a prohibited firearm"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Wood Green"], "Sentence": ["four years and six months' imprisonment", "The total overall sentence was one of six years and nine months' imprisonment", "consecutive term of two years and three months' imprisonment", "concurrent term of six months' imprisonment"], "SentServe": ["consecutive term"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["26"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["police officers executed search warrants"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["previous convictions", "significant role", "wholesale value"], "MitFactSent": ["appellant had a young child"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal against sentence"], "AppealGround": ["Secondly, it is said that the Recorder's starting point in relation to count 2 was too high. Thirdly, it is said that the Recorder failed to have regard to totality", "whether the sentence on count 2 should have been ordered to run concurrently", "the sentence on count 1 was wrong in law."], "SentGuideWhich": ["section 5(1)(aba) of the Firearms Act 1968", "section 329(1)(c) of the Proceeds of Crime Act 2002", "section 5(3) of the Misuse of Drugs Act 1971", "totality guideline", "section 311 of the Sentencing Act 2020", "section 11(3) of the Criminal Appeal Act.", "Copy link to this paragraphSection 11(3) of the Criminal Appeal Act 1968"], "AppealOutcome": ["The sentence on count 1 is increased from four years and six months to five years' imprisonment. The sentence on count 2 is reduced from 27 months to 21 months imprisonment. This means that the overall length of the sentence remains as it was, at six years and nine months'"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["the overall sentence is not proportionate"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["Crown Court At Wood Green"], "ConvictPleaDate": ["2023-05-26"], "ConvictOffence": ["Possessing a controlled drug (Class B, cannabis) with intent to supply", "Possessing criminal property", "Possessing a prohibited firearm"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Wood Green"], "Sentence": ["The total overall sentence was one of six years and nine months' imprisonment", "concurrent term of six months' imprisonment", "consecutive term of two years and three months' imprisonment", "four years and six months' imprisonment"], "SentServe": ["Combination"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["26"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Police evidence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["significant role", "Financial gain/value", "previous convictions"], "MitFactSent": ["appellant had a young child"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal against sentence"], "AppealGround": ["whether the sentence on count 2 should have been ordered to run concurrently", "Secondly, it is said that the Recorder's starting point in relation to count 2 was too high. Thirdly, it is said that the Recorder failed to have regard to totality", "the sentence on count 1 was wrong in law."], "SentGuideWhich": ["section 11(3) of the Criminal Appeal Act.", "totality guideline", "section 311 of the Sentencing Act 2020", "Copy link to this paragraphSection 11(3) of the Criminal Appeal Act 1968", "section 329(1)(c) of the Proceeds of Crime Act 2002", "section 5(3) of the Misuse of Drugs Act 1971", "section 5(1)(aba) of the Firearms Act 1968"], "AppealOutcome": ["Allowed&Sentence Replaced by More Excessive Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["the overall sentence is not proportionate"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
359
No: 201705387/A4 Neutral Citation Number: [2018] EWCA Crim 962 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 20 April 2018 B e f o r e : MR JUSTICE EDIS THE RECORDER OF CARDIFF HER HONOUR JUDGE REES QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - R E G I N A v CONNER MARISCOTTI - - - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - - - Mr J Manning appeared on behalf of the Appellant Mr A Ingram appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - J U D G M E N T This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. 1. MR JUSTICE EDIS: Conner Mariscotti is now 19 years old. Having admitted five offences before the Magistrates' Court on 17 October 2017 he was committed for sentence pursuant to section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. That committal was dealt with at Snaresbrook Crown Court on 10 November 2017 when a total sentence of 32 months' detention in a young offender institution was imposed, against which he now appeals by leave of the single judge. 2. The offences were all offences of possession with intent to supply controlled drugs, contrary to section 5(3) of the Misuse of Drugs Act. Count 1 related to class A drugs (cocaine). Count 2 related to class A drugs (ecstasy). Count 3 related to class A drugs (LSD). Counts 4 and 5 related to class B drugs (cannabis). Sentences of 32 months in respect of each of the class A counts were imposed concurrently and sentences of eight months' detention were imposed concurrently also in respect of the two cannabis offences. Certain further orders were made, on which nothing now turns. 3. These offences came to light when the police went on other wholly unrelated business to the home of the appellant on 23 August 2016. While they were there they looked under his bed and found quantities of drugs. There was herbal cannabis and a small bag of cannabis resin in a black rucksack: 408 milligrams of herbal cannabis and 2.91 grams of resinous cannabis. That resulted in the two counts relating to cannabis. They also found a quantity of white powder, some coloured tablets, some brown looking substance and a large quantity of self-seal bags. These were analysed as turned out to be the class A drugs: 1.4 grams of cocaine, four packages of ecstasy totalling 3.99 grams in 19 tablets of ecstasy and some further tablets differently coloured but of the same substance. There were two packages which turned out to be LSD and eight doses in eight packages of the same amount partially compressed in a white crystallised form. The value of the drugs was put at a street valuation at £1,724 all in. On examination some texts were found on his telephone which were relevant to drug dealing involving cannabis. 4. The appellant has limited criminal convictions and has no criminal conviction for any offence involving controlled drugs. 5. There was before the judge a pre-sentence report and addendum which had been prepared for other proceedings and which dated back in the case of the substantive report to 27 April 2017 and of the addendum to 16 June 2017, which gave an assessment of the appellant, as well as an assessment of the offences for which they had been prepared. 6. The proceedings took the following course. It became clear at the first hearing in the Crown Court that there was an issue of fact between the prosecution and the appellant. The question was whether he had those drugs in order to supply them to friends on a non-commercial basis or whether he had them in order to sell them commercially. The judge decided that it was necessary for that to be resolved and a hearing was held for that purpose. The hearing took the usual form in that the judge had available the evidence on which the prosecution relied and the appellant gave evidence on oath and was cross-examined in which he supported or sought to support his account of his social only supplying. The judge rejected that evidence. He said that the quantities of class A drugs in this case were the kind of quantities that street dealers generally have available to them, although they do not normally carry that amount on the street when they are dealing. He accepted that the text messages relating to drug dealing on the mobile phone related to dealing in cannabis and did not therefore themselves establish that he had in his possession any class A drugs for the purpose of commercial supply. However, the judge said that having heard him the appellant is not a credible witness and the judge did not believe a word he had said, other than when he was talking most movingly about the bereavement that he suffered when he lost his mother when he was a child. Having reached that conclusion the court found that the appellant was dealing commercially in a very small way in class A and class B drugs. He was, as the judge put it, selling them on a hand to mouth basis. He was entirely sure that the class A drugs were in his possession for selling. The cocaine was divided into packages. The other class A drugs were also split into saleable quantities. He rejected therefore the mitigating account given by the appellant. 7. That means, as is accepted by Mr Manning, who appears on behalf of the appellant before us and indeed appeared on his behalf before the judge, that when considering the relevant guideline the appropriate category of harm is Category 3 street dealing. Although the appellant was not actually in the course of selling on the street when he was arrested, he was arrested with his small stock from which he would subsequently intend to draw saleable quantities and take them out into the street. He was therefore a street dealer. 8. The next exercise required of the judge by the guideline was an assessment of culpability demonstrated by role. In this case the role was either significant or lesser. The judge observed that he did not have a supervisory role because he was effectively running his own little business storing the trade goods at his home. The judge said that that was a significant role. That finding is challenged in a way to which we shall shortly turn. 9. The judge then selected a starting point from the appropriate category for class 3 significant role of four years. The starting point in the guideline is four years six months and the range is three years six months to seven years. The judge had therefore selected a shorter starting point before plea discount than the guideline suggested. In doing so he sought to reflect both the size of the business which the appellant was running and also the mitigating features. 10. Having gone through that second step in the guideline, the judge then moved to step 4, reduction for guilty pleas, and allowed full credit. This was, we note, an act of some generosity since the relevant guideline for credit for plea guilty pleas suggests that normally that amount of credit should be reduced by half where there has been a failed Newton hearing, as here. The one-third discount however was applied reducing the four year starting point before plea discount to the sentences which we have already set out of 32 months. 11. Mr Manning has drafted and advanced two grounds of appeal. First, he says that the judge erred in treating the appellant as having played a significant role and therefore took too high a starting point. Had the judge been able to say that this was a lesser role, the starting point would have been three years in the guideline and the range two to four years and inevitably the sentence would have been less. The second ground is that the judge failed to give sufficient weight to mitigating factors, which includes a procedural submission to which we shall return. 12. The single judge considering those two grounds which were before him on paper and which have been expanded before us orally, refused leave on the first ground but granted leave on the second. He did so on a particular basis which it is appropriate to set out. He said this: "Although the procedure set out in the Criminal Practice Direction for dealing with a Newton hearing was not followed, the issue which the judge had to resolve was within a very narrow compass and was clearly defined so that everyone engaged in the hearing was aware of it. There was no injustice. The judge heard the evidence and his conclusion that you were dealing in drugs for profit, albeit on a comparatively small scale, is unassailable. You fall within the category of 'significant role' in the Guidelines. The judge said he would have imposed a total sentence of 4 years after a trial and from that he deducted a full one-third discount for your guilty pleas even after a Newton hearing in which your basis of plea had been rejected. The resulting sentence of 32 months in total for dealing in five different types of drugs is well within the acceptable range of sentences for offending of this nature. If matters stood there I would not have granted you leave to appeal. I grant leave, however, for the full court to review your sentence because your counsel says he was not given a proper opportunity to address the judge in mitigation on your behalf. You should not be optimistic about the result of your appeal. The full court might conclude that whatever the procedural shortcomings might be, your sentence is not manifestly excessive." 13. We entirely agree with the single judge in refusing leave to argue Mr Manning's first ground of appeal. If you are running your own business, your role in it is significant. The fact that it is a small business is to be reflected in other ways in applying the guidelines to the facts of the case in accordance with the approach identified by this court in R v Healey [2012] EWCA Crim. 1005 , [2013] 1 Cr.App.R (S) 33 . It is impossible to describe a sole trader as having an insignificant role in his own business. Big or small, he is it. 14. We therefore confine ourselves to the issue on which the single judge granted leave and briefly explain the circumstances. The judge heard the appellant in evidence and heard submissions about the issue which was live in the Newton hearing and reached a conclusion about it. However, what he did not do was to pause, announce his factual findings and then invite mitigation to be addressed to him by Mr Manning. He said: "I am afraid Mr Mariscotti was an entirely unconvincing witness and I have no difficulty rejecting his account. Stand up then Mr Mariscotti in respect of each of the counts of possession with intent to supply ... " In other words, there was no pause for particular consideration of the items of mitigation which this appellant may be able to deploy in seeking to reduce the sentence before plea discount below four years. 15. We have therefore allowed Mr Manning to advance those matters of mitigation that he would have advanced before the judge had matters proceeded differently. There are eight points. First, he refers to the effect of the bereavement resulting from the death of his mother on the appellant. It has a continuing effect on his ability to form relationships. Secondly, he has no previous convictions. Thirdly, Mr Manning in-appositely, in our judgment, refers us to the credit for plea. That issue comes later, as we shall say. Fourthly, he refers to the co-operation with the police which effectively involves not disrupting or seeking to disrupt their search. Fifthly, his age. Sixthly, his limited intelligence. Seventhly, a letter of remorse which he had written to the judge. We observe that a defendant who gives evidence which is rejected at a Newton hearing can hardly be said to be overburdened with remorse in any ordinary use of the word. Eighthly, he was actively seeking employment. Mr Manning says that he would have asked the judge at that stage to order a pre-sentence report and it was conceivable that that might have resulted in a further reduction in the sentence. 16. We accept that in the ordinary run of events there is generally a pause for some mitigation following the announcement of the findings of fact of the judge at a Newton hearing. That is not an invariable procedure. If the judge has sufficient information about the mitigation which has been presented to him, so that he is aware of all relevant points, then it may be possible to proceed as the judge did here. Whether that is right or wrong, the opportunity afforded to the appellant in this court amply rectifies any injustice which may have occurred. 17. It is clear that all of those matters now advanced before us were well-known to the judge who had the papers and who had read to him the letter of remorse and who had just heard the appellant give evidence about himself and about his background and about the loss of his mother. 18. In those circumstances, it is simply not the case that the judge was unaware of anything significant which might have exerted any downward traction on this sentence. So far as the pre-sentence report is concerned, in our judgment the judge having read the documents to which we have referred dating back to 2017 was very well placed indeed to appreciate that no further such document was likely to contain anything which would impact on this sentence for what is, after all, commercial dealing in a variety of class A drugs. 19. We therefore have addressed the concern which troubled the single judge but find as a result of that exercise that there is no mitigation available to this appellant which would be capable of reducing the sentence before plea discount below four years. But even if that is wrong, there is a margin in this case in favour of the appellant because the judge gave, in our judgment, unduly generous credit for the plea of guilty. Instead of allowing full credit of 16 months he should have allowed half credit of eight months. In so doing he was no doubt attempting to reflect further all the matters which might usefully be prayed in aid on behalf of this appellant. 20. At all events, however the sentence was arrived at, it is, in our judgment, impossible to say that on the facts of this case it is arguable that a sentence of 32 months in all was manifestly excessive or wrong in principle. Therefore, this appeal is dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected]
{"ConvCourtName": ["Snaresbrook Crown Court"], "ConvictPleaDate": ["10 November 2017"], "ConvictOffence": ["Count 1 related to class A drugs (cocaine)", "Count 3 related to class A drugs (LSD)", "Counts 4 and 5 related to class B drugs (cannabis)", "Count 2 related to class A drugs (ecstasy)", "offences of possession with intent to supply controlled drugs"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["plea discount"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Snaresbrook Crown Court"], "Sentence": ["32 months' detention in a young offender institution"], "SentServe": ["concurrently"], "WhatAncillary": ["Certain further orders were made"], "OffSex": ["Conner Mariscotti"], "OffAgeOffence": ["now 19 years old."], "OffJobOffence": ["data not available"], "OffHomeOffence": ["home of the appellant"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["These offences came to light when the police went on other wholly unrelated business to the home of the appellant on 23 August 2016. While they were there they looked under his bed and found quantities of drugs."], "DefEvidTypeTrial": ["The question was whether he had those drugs in order to supply them to friends on a non-commercial basis or whether he had them in order to sell them commercially. The judge decided that it was necessary for that to be resolved and a hearing was held for that purpose. The hearing took the usual form in that the judge had available the evidence on which the prosecution relied and the appellant gave evidence on oath and was cross-examined", "the appellant gave evidence on oath and was cross-examined"], "PreSentReport": ["pre-sentence report"], "AggFactSent": ["your role in it is significant.", "intent to supply controlled drugs,", "value of the drugs was put at a street valuation at £1,724 all in"], "MitFactSent": ["remorse which he had written to the judge", "he has no previous convictions.", "19 years old", "bereavement resulting from the death of his mother on the appellant", "The appellant has limited criminal convictions and has no criminal conviction for any offence involving controlled drugs.", "limited intelligence", "appellant was not actually in the course of selling on the street when he was arrested,"], "VicImpactStatement": ["data not available"], "Appellant": ["Conner Mariscotti"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against which he now appeals by leave of the single judge."], "AppealGround": ["judge failed to give sufficient weight to mitigating factors", "the judge erred in treating the appellant as having played a significant role and therefore took too high a starting point"], "SentGuideWhich": ["relevant guideline the appropriate category of harm is Category 3 street dealing"], "AppealOutcome": ["dismissed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["Had the judge been able to say that this was a lesser role, the starting point would have been three years in the guideline and the range two to four years and inevitably the sentence would have been less"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["impossible to say that on the facts of this case it is arguable that a sentence of 32 months in all was manifestly excessive or wrong in principle."]}
{"ConvCourtName": ["Snaresbrook Crown Court"], "ConvictPleaDate": ["2017-11-10"], "ConvictOffence": ["Counts 4 and 5 related to class B drugs (cannabis)", "Count 3 related to class A drugs (LSD)", "Count 2 related to class A drugs (ecstasy)", "Count 1 related to class A drugs (cocaine)", "offences of possession with intent to supply controlled drugs"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Snaresbrook Crown Court"], "Sentence": ["32 months' detention in a young offender institution"], "SentServe": ["Concurrently"], "WhatAncillary": ["Certain further orders were made"], "OffSex": ["All Male"], "OffAgeOffence": ["18"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["evidence in offender's home"], "DefEvidTypeTrial": ["Offender admits only to lesser offence", "offender testimony that drugs were for social use, not for commercial supply"], "PreSentReport": ["Don't know"], "AggFactSent": ["significant role in offence", "value of the drugs was put at a street valuation at £1,724 all in", "intent to supply controlled drugs,"], "MitFactSent": ["remorse which he had written to the judge", "limited intelligence", "he has no previous convictions.", "bereavement resulting from the death of his mother on the appellant", "young offender", "appellant was not actually in the course of selling on the street when he was arrested,", "The appellant has limited criminal convictions and has no criminal conviction for any offence involving controlled drugs."], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal against sentence"], "AppealGround": ["judge failed to give sufficient weight to mitigating factors", "the judge erred in treating the appellant as having played a significant role and therefore took too high a starting point"], "SentGuideWhich": ["relevant guideline the appropriate category of harm is Category 3 street dealing"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["excessive sentence as mitigating factors not considered"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["Trial/sentencing judge considered all relevant facts in appropriate way and came to correct conclusion/decision"]}
546
Neutral Citation Number: [2017] EWCA Crim 317 Case No: 201603659 A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 14 March 2017 B e f o r e : LORD JUSTICE DAVIS MR JUSTICE FRASER RECORDER OF SHEFFIELD - HIS HONOUR JUDGE GOOSE QC (Sitting as a Judge of the CACD - - - - - - - - - - - - - - - - - - - - - R E G I N A v REECE MELVIN JONES - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr B Close appeared on behalf of the Applicant The Crown did not attend and was unrepresented - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. MR JUSTICE FRASER : On 12 February 2016, in the Crown Court at Wolverhampton, the appellant pleaded guilty at a pleas and case management hearing (as such hearings were then called) before Mr Recorder Sweeting QC, to one count of robbery contrary to section 8(1) of the Theft Act 1968. On 8 July 2016, Her Honour Judge Kristina Montgomery QC sentenced him to 4 years 6 months' imprisonment. 2. He was born on 5 May 1995 and the offence was committed on 15 December 2015. Accordingly, although he was over 21 as at the date of his conviction and sentence, he was in fact only 20 at the time that he committed the offence. The correct custodial sentence was therefore one of a term of detention in a Young Offender Institution, and not one of imprisonment. In opening the facts, the Crown incorrectly told the sentencing judge that he was 24 years old, which explains the error in her terminology. This is a subject to which we will return after dealing with the substantive appeal. 3. The appellant brings his appeals against sentence with the permission of Foskett J. He was sentenced with two co-defendants, Paul Ferguson, who was 35 years old, who was sentenced to 4 years 8 months (or potentially 4 years 10 months) and Lee Anslow, who was 28 at the time of the offence and who was given the same sentence. The difference in how we have expressed those two sentences arises because the judge expressed the sentence both as 58 months but then also said that that was 4 years 8 months, when in fact it is 4 years 10 months. Regardless of which of those two figures appears on the court record, the difference between those two is not relevant for the purposes of this appeal. 4. The appellant was sentenced without the sentencing judge having the benefit of a pre-sentence report. We are of the view that one is not now necessary and so under section 156 of the Criminal Justice Act 2003 we continue to hear the appeal and give judgment on that, and deal with his sentence, without requiring such a report. 5. The facts of the offences committed by the appellant and his co-accused are as follows. On 15 December 2015, at about 4.45 am, a Ford Focus car arrived at a 24-hour Asda store in Darlastan. The appellant and his two co-accused were passengers and a fourth person was driving. The driver remained outside as they entered the store. They had their hoods up, and the other two co-accused were wearing gloves. The appellant had socks on his hands. One of the other two, Anslow, was carrying a large wrench. A security guard was threatened with the wrench and made to kneel down. The guard was dragged to the cigarette kiosk where the appellant was standing, and the appellant and one of the others began to empty the kiosk of cigarettes into a large builders' bag. They managed to fill the builders' bag with about £9,000 worth of cigarettes and then went to leave. However, the bag was so full and heavy they could not get it through the doors behind the kiosk and so they had to abandon it. 6. At this point the police arrived and the getaway car that was parked outside sped off, leaving the three defendants behind. It was not known then, and is not known now, who the driver of that car was. That was still not the end of the matter, as a chase ensued. After a scuffle with one of the other co-accused who was arrested, one police officer required hospital attention. The appellant tried to run away but was arrested after a much shorter struggle with a police officer, but CS gas had to be used upon him by the police in order to effect the arrest. The third individual was arrested without incident. 7. The appellant admitted going to the ASDA store to steal the cigarettes but said that he thought it was going to be a burglary. He had met the others, he said, unaware that the shop would be open and that the customers and staff would be there for the offence. However, given this was a 24-hour store, that explanation can be seen as somewhat self-serving. 8. The sentencing judge found that the robbery was a less sophisticated commercial robbery which fell into category 2B of the guidelines, a characterisation with which the parties agreed. She found the correct starting point for the robbery was at the very top of the range for that category. The category range for that offence is 3 to 6 years and she therefore took a starting point for the appellant at the top of that bracket of 6 years. Due to the very bad record of previous offending by both Ferguson and Anslow, the two co-defendants, both of whom had significant offences of robbery on their criminal records, which had previously attracted significant custodial sentences expressed as 4 years and 54 months respectively for each of them, she found the correct starting point for them was outside the range and chose six and a half years. 9. That differential could have been more marked and it may have been the case that other sentencing judges would have decided that the difference between the appellant, and his co-accused, should have been greater. But, in our judgment, the judge properly addressed her mind to the fact that the culpability of the co-defendants was far higher than that of the appellant due to their previous relevant convictions. They were all entitled to credit of 25 per cent for their pleas of guilty, and that reduction was applied to the 6-year starting point for the appellant resulting in a sentence in his case of four and a half years. He had only relatively minor previous convictions, although there were a number of them, and these were for road traffic and theft offences. This offence, therefore, marked a step change in the seriousness of his offending. Prior to this offence his longest sentence had been 12 weeks in a Young Offender Institute for receiving stolen goods and driving whilst disqualified. That related to an offence in June 2015. 10. It is not argued on his behalf that this should not have been treated as a category 2B offence or that the starting point chosen by the sentencing judge of 6 years was manifestly excessive. Mr Close, who has appeared for the appellant before us today and has made the appeal very attractively and well, in our judgment, also accepts that the credit applied of 25 per cent for the guilty plea cannot be challenged. 11. The sole ground of appeal is that there was insufficient differentiation between the sentence passed on the appellant and the sentences passed upon his co-accused. His record was less serious by some margin and he was also much younger than the others. It is argued on his behalf that the differences between the culpability of the offenders was not accurately reflected in the different sentences passed upon them which has resulted in a difference between those sentences of only a few months. 12. The sentences judge described all three of the participants as having played an equal part in the robbery. Although one of them had a weapon, the wrench, and shouted instructions and threats at the staff, all three of them were treated as though they had played an equal part and, in our judgment, that is clearly correct. There is no criticism of that approach from Mr Close on the appeal before us. 13. Although previous convictions for robbery are a statutory aggravating feature and the appellant did not have any, in our judgment this was reflected in the fact that the sentencing judge chose a lower starting point for his sentence prior to the application of the discount to which he was entitled for pleading guilty, and she also expressly increased the starting point for the co-defendants. She clearly therefore had this point in mind. 14. The sole question for this court upon appeal is whether the sentence that was passed upon this appellant was manifestly excessive. Given the circumstances of this offence, the use of threats, including a weapon, the treatment of the guard, the resisting of arrest and the use of CS gas upon the appellant by the police, we are of the view that it cannot be said that the choice of starting point of 6 years at the top of the relevant range for category 2B offences was wrong or even slightly excessive in his case. His particular sentence of four and a half years, therefore, after application of the discount was not manifestly excessive and his appeal is dismissed. 15. We affirm the custodial sentence upon the appellant in terms of its correct characterisation being one of detention in a Young Offender Institution due to his age at the date he committed the offence, and not as it was expressed upon the sentencing exercise, which was as of a sentence of imprisonment. When a defendant is below the age of 21 at the date the offence was committed this is important, as it makes a person a young offender. The Crown must ensure that this is drawn to the attention of the sentencing judge at the time. 16. The appeal is therefore dismissed.
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{"ConvCourtName": ["Crown Court At Wolverhampton"], "ConvictPleaDate": ["2016-02-12"], "ConvictOffence": ["robbery"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["at a pleas and case management hearing"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Wolverhampton"], "Sentence": ["4 years 6 months' imprisonment."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["20"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Stranger"], "VictimType": ["Company"], "VicNum": ["1 of 1", "2 of 2"], "VicSex": ["Don't Know"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Other"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Medical evidence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["previous convictions", "weapon"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["2"], "AppealAgainst": ["sentence"], "AppealGround": ["whether the sentence that was passed upon this appellant was manifestly excessive", "there was insufficient differentiation between the sentence passed on the appellant and the sentences passed upon his co-accused"], "SentGuideWhich": ["section 156 of the Criminal Justice Act 2003", "section 8(1) of the Theft Act 1968"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["it cannot be said that the choice of starting point of 6 years at the top of the relevant range for category 2B offences was wrong or even slightly excessive"]}
38
Neutral Citation Number: [2022] EWCA Crim 897 Case No: 202101087 B3/ 202101098 B3/202101101 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM The Central Criminal Court Her Honour Judge Poulet QC T20207047 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/07/2022 Before: LORD JUSTICE FULFORD MR JUSTICE HOLGATE and HHJ WALDEN-SMITH - - - - - - - - - - - - - - - - - - - - - Between: RAJAE HESLOP SAHARDED HASSAN IRWIN CONSTABLE Appellants - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Brian St Louis QC & Mr Justin McClintock (assigned by by the Registrar) for the appellant Heslop Mr Timothy Moloney QC & Mr Mark Kimsey (assigned by by the Registrar) for the appellant Hassan Ms Tana Adkin QC & Mr Simon Smith (assigned by the Registrar) for the appellant Constable Mr Alan Kent QC & Ms Catherine Pattison (instructed by Crown Prosecution Appeals Unit) for the Respondent Hearing dates: 22nd March 2022 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Fulford: Introduction 1. On 19 March 2021, in the Central Criminal Court before Judge Poulet QC and a jury at the conclusion of “Trial 1”, the appellants were convicted of murder (count 1) and attempted murder (count 2). On 26 March 2021, Heslop was sentenced to imprisonment for life on count 1 and the period of 28 years (less 402 days spent in custody and on remand) was specified as the minimum term under section 322 of the Sentencing Act 2020. A concurrent sentence of 18 years’ imprisonment was imposed on count 2. Hassan was sentenced to imprisonment for life on count 1 and the period of 32 years (less 402 days spent in custody and on remand) was specified as the minimum term. A concurrent sentence of 20 years’ imprisonment was imposed on count 2. Constable was sentenced to custody for life on count 1 and the period of 24 years (less 402 days spent in custody and on remand) was specified as the minimum term. A concurrent sentence of 17 years’ detention was imposed on count 2. 2. Kaleel Nyeila, Samuel Agyeman, Armani Ogilvie-Pitt and Abdi Karama, who were said to have been involved in the planning and facilitation of the shooting with which these proceedings were concerned, were acquitted on 15 June 2021 at the conclusion of “Trial 2”. 3. Before this court Heslop and Hassan appeal against conviction by leave of the single judge. Constable also appeals against conviction, but limited to the ground of appeal relating to Ground 1. He has not renewed his application to appeal on other grounds. The Facts in Outline 4. Shortly before 9pm on 1 May 2018, two men were shot at close range with a handgun whilst sitting in a car that was parked in Essoldo Way in Queensbury, Edgware, London. One of the bullets hit Leon Maxwell (“LM”) in his lung. The injury proved to be fatal and he died at the scene. Antoine Jean-Marie (“AJM”) was shot in his torso but managed to run away. He took a taxi to Northwick Park Hospital and was successfully treated for his injuries. AJM was unable to provide a description of the attackers because they had been wearing motorcycle crash helmets. LM and AJM had been involved in the sale of cannabis at the time of the incident. 5. Two men carried out the shooting, arriving together on a stolen moped. Both were dressed in black North Face jackets. The pillion passenger, wearing a grey helmet and said to be Constable, alighted from the bike and fired five shots at or into the car, one bullet hitting each victim, whilst the driver, wearing a red helmet and alleged to be Heslop, manoeuvred the moped to facilitate their escape. 6. CCTV footage captured the moped as it travelled from Essoldo Way to Wealdstone, where it was left for 24 hours before being moved. The moped and grey helmet were recovered on 25 May 2018, in Windrush Road, London NW10. DNA attributed to Heslop was recovered from the helmet. 7. While the motive for the shooting was not immediately apparent, the prosecution’s contention was that it bore the hallmarks of rivalry between two gangs in the area: the Stone City Gunners / “Greyset” gang (“SCG”) and the “Queensbury’ Boys” (“QB”). Indeed, the prosecution were able to link the three defendants to the SCG. Hassan, who was known by the nicknames “Krafty”/ “K” / “K-Man”, was identified as the leader of this group. His DNA was found on one of the bullet casings retrieved from the scene. The prosecution’s case was that he had organised the attack, having provided the ammunition and possibly the firearm. Constable was known by the nicknames “Primal” / “Primus” / “Prime” / “PM”. Heslop was affiliated to the gang through his brother, who was a known associate of the SCG. 8. The prosecution case was that the plan that evening was to make an armed incursion into the rivals’ territory, with all those involved intending to kill anyone who appeared to be a member of the QB. The appellants committed the offences together as part of a joint plan, each having the requisite intent. Hassan was a leader of the SCG, and had recruited Heslop and Constable to carry out the shooting, supplied the ammunition and possibly the firearm, and arranged the use of a stolen moped as transport. All the defendants in Trial 1 and Trial 2 were associated with the SCG. Since neither victim was associated with the QB gang, the prosecution’s case was that they were simply in the wrong place at the wrong time The Facts in Detail 9. During the investigation, the police utilised CCTV imagery to establish the movements of the moped. It had been stolen in the early hours of 1 May 2018 by a male called Jahdelle Williams-Campbell, and later that afternoon it was driven from Wembley to the High Street, Wealdstone, stopping en route for Williams-Campbell to collect a red crash helmet. It was then driven to Byron Park and handed over at about 5 pm to the four men who were the defendants in Trial 2: Agyeman, Nyeila, Kamara and Ogilvie-Pitt. It was thereafter taken to a nearby location by Ogilvie-Pitt and Agyeman. 10. During the early evening, CCTV evidence revealed Heslop and Hassan meeting inside a premises called the Cashino, located on the High Street. Constable was outside and remained in the vicinity of the premises. By 19.21 Constable had swapped jackets with Ogilvie-Pitt and at 19.22 Constable (now wearing a black North Face jacket with white logo) walked into the Cashino whilst Heslop was still inside. 11. Thereafter, Constable and Heslop left the Cashino and walked up the High Street together, turning into Headstone Drive. Constable returned to the High Street minutes later, where he spoke with Karama and Agyeman who then retrieved the moped. Constable was captured on CCTV at 19.35 walking in Whitefriars Avenue. Heslop rode his own moped to Grant Road where he retrieved something from a white carrier bag. Between 19.34 and 19.38 Heslop drove to a house in Marthorne Crescent. He parked in nearby Wickham Road and entered 6 Marthorne Crescent, where his girlfriend sometimes stayed. He was wearing a grey crash helmet. At 20.16 hours, a figure arrived at Marthorne Crescent, which was said by the prosecution and Heslop to be Constable (Detective Constable Emmanuel, having considered a variety of factors, testified, “ I have concluded that is Irwin Constable ”, albeit the judge advised the jury to ignore the evidence that had been given as to this individual’s gait). Agyeman and Karama drove the moped to the vicinity of Marthorne Crescent (Whitefriars Open Space). Just after 20.30, two figures left 6 Marthorne Crescent (said to be Constable and Heslop). One of them, Heslop, returned to the address at 20.33 and left again at 20.36. 12. At 20.39 hours, the moped began the journey to Essoldo Way. The two individuals on the moped were wearing black North Face jackets. After the shooting, the moped had been driven to the vicinity of Athlestone Road/Whitefriars Open Space by 20.59 hours, and the two riders headed towards number 6 Marthorne Crescent minutes later. 13. On arrest, the appellants declined to answer any questions during interview. The Evidence relating to Gangs 14. The prosecution averred that the defendants were all involved in drug trafficking and violence and that the material seized when they were arrested demonstrated – certainly as regards Heslop and Hassan – their glorification not only of drug dealing, but also of gun and knife violence, especially vis-à-vis their rivals. Handwritten lyrics found at Heslop’s home were suggested to be directly and incriminatingly related to this shooting. These were written on pieces of paper headed “ Exeter Prison ”, and they contained a large body of notes amongst which were apparent clear admissions to belonging to a gang and antipathy towards the QB gang. They included references to making the rival gang members fearful. One section appears to relate directly to Heslop’s own role in the present shooting, which the Crown suggested amounted to a confession. Images and videos of individuals holding weapons were recovered from his mobile telephone. A mobile telephone linked to Hassan when he was arrested contained what appeared to be lyrics that boasted of shootings and guns, and in which the lyricist makes it clear he is a senior gang member. There was reference to the “ stones ” (said to be the Stone City Gunners). Police Sergeant Jones gave evidence, in part based on direct contact, that Hassan was the leader of the gang and lived close to the High Street, Wealdstone. 15. As described above, neither victim was associated with the QB gang and the Crown’s case was that this was a case of misidentification and that they had simply been in the wrong place at the wrong time. It was postulated that a critical false assumption had been made about them, given a cannabis sale was underway at the time of the incident. One of the Agreed Facts was to the following effect: “8A. PS Paul Jones is a police officer who between 2014 and 2018 was in charge of investigating gang-related crime in the Borough of Harrow. PS Jones is experienced with gangs, how they operate and gang-related activity. In his opinion, for someone to deal drugs within the ‘territory’ of a gang, they would have to be dealing on behalf of the gang that controls that area .” (our emphasis) 16. Given this context, in a written application dated 15 January 2021, the Crown applied to adduce various strands of gang-related evidence to demonstrate that the murder and the attempted murder, which were otherwise unexplained, bore the hallmarks of gang activity. In essence, the prosecution alleged that the three defendants, as members or associates of the SCG, had undertaken what is known as a “ ride out ”: two of those involved travelling on a moped to an area outside their “ turf ”, armed with a lethal weapon looking to kill a rival gang member. Thus, it was said this was not a random shooting of a passer-by in the street. 17. Having considered the parties’ submissions, the judge restricted the Crown’s opening as regards the gang-related evidence. She considered it was necessary to determine the admissibility of this material once the mobile telephone, cell site and CCTV evidence had been given, to enable her to assess the nature and strength of the case, based on the evidence that was independent of the gang material. The Crown was permitted at the outset, however, to refer to a selection of particular “ drill lyrics ” seized from Heslop, written it was suggested whilst he was in custody, along with the lyrics recovered from a mobile telephone attributed to Hassan (see [14] above). 18. In due course this issue was substantively addressed on 29 January 2021, towards the close of the prosecution case. It was once again urged by the Crown that the jury should be informed of the rivalry between the two gangs, along with the links between each of the defendants and the SCG. The prosecution sought particularly to rely on the evidence of Police Sergeant Paul Jones, who had had direct dealings with most of the defendants and who was said to have extensive knowledge and experience of the gangs in Harrow and the surrounding boroughs. This background contextual evidence fell to be combined with the material already introduced in evidence, as rehearsed above, which was found, first, on a mobile telephone associated with Hassan and, second, within written notes in the possession of Heslop (as already indicated, the latter was said to contain a confession). It was argued that in these circumstances, the existence of the gangs and the defendants’ affiliation to the SCG was not bad character evidence but instead formed part of the facts of the case. 19. Those acting for the appellants submitted that Police Sergeant Jones should not be regarded as an expert witness, and in this regard reliance was placed on R v Myers [2015] UKPC 40; [2016] AC 314. It was highlighted that the officer did not appear to have been trained in relation to gangs. It was suggested that his knowledge of and interactions with most, if not all, of the defendants – partly in an effort to dissuade them becoming or remaining gang members – had the potential to bias him against them. In any event his evidence was suggested to be anecdotal. It was argued, furthermore, that much of the material served in support of his opinion did not demonstrate ongoing rivalry between the QB and SCG gangs. Further, there had been no “ trigger event ” which could permit the Crown to assert that this was a revenge attack. 20. It was submitted additionally that neither of the victims had been shown to have any gang connections, notwithstanding the fact that they had been conducting a cannabis sale. Whilst there were incidents that were said to be part of ongoing gang warfare, they could not be attributed to the QB or the SCG. It was argued that the jury should not, in those circumstances, be invited to consider whether this shooting was the result of gang rivalry between the SCG and the QB. The prosecution, it was argued, would be speculating as to a motive when none could reliably be shown to exist. The admission of the evidence would, therefore, unfairly prejudice the jury against the appellants. Additionally, it was unjust to assert in the present proceedings that the four defendants in the following trial could be linked to the SCG when they were unrepresented in the instant proceedings. 21. By way of discrete submissions for each of the individual accused, Ms Tana Adkin Q.C. on behalf of Constable suggested that the material relied upon to demonstrate that he was a member of SCG revealed little more than that he was a prolific cannabis dealer with two associated knife convictions. Mr Brian St Louis Q.C. on behalf of Heslop argued that the prosecution had failed to prove his alleged association with the SCG. The references to gang membership in the notes on the Exeter Prison paper potentially related to any gang rather than focussing on the SCG. Mr Tim Moloney Q.C. on behalf of Hassan submitted that the prosecution had been unable to establish a motive which could be laid at the door of SCG and in any event the Crown had failed to establish that this was an instance of misidentification by the killers. The lyrics in the mobile telephone attributed to Hassan were no more than the words of a song and they should not be relied on to demonstrate a propensity towards dealing with firearms or ammunition. It was observed that drill lyrics frequently reference guns and violence without the writer substantively espousing their use. 22. The judge ruled that the admissibility of gang evidence inevitably depends on the circumstances of the individual case. She judged that the evidence in this instance bore the hallmarks of a murder carried out by a gang. She observed that every feature of the shooting had the characteristics of gang activity rather than that of individuals acting with a different murderous motive. As the judge put the matter, “ Fundamentally, the very action of two men travelling 3-4 miles across London on a stolen motorbike to shoot two men involved in a cannabis sale suggests gang activity between two postcodes. This is underlined by the numbers involved with the arrangements for the obtaining and positioning of the stolen moped ”. There was ample evidence of incidents of apparent gang warfare in the material set out by Police Sergeant Jones and the judge concluded that whilst there may have been no obvious triggering event clearly attributable to the QB gang, the existence of the rivalry of these two gangs was part of the facts in the instant case. This was borne out by the writings of Heslop and Hassan. The judge referred to part of the judgment of Hallett LJ in R v Awoyemi and Ors [2016] EWCA Crim 668; [2016] 4 WLR 114, at paragraphs 34, which included the following: “Gangs will not necessarily commit their specific feuds to writing or to camera and declare their intent to seek revenge in a way that can be proved directly; that does not mean evidence of a gang’s culture, membership and attitude towards violence will be irrelevant. It may provide an important link or part of an important link between an accused and the crime.” 23. The judge particularly focussed on the notes written by Heslop, with especial reference to QB (who must “ burn ”, in other words must die) and the lyrics of Hassan in which he described himself as the leader of the gang. This evidence, in the judge’s estimation, provided sufficient support for the proposition that the existence of the gangs of Wealdstone and Queensbury, along with their rivalry, formed an essential part of the facts of the case. The judge concluded that the affiliation on the part of the defendants to the SCG, within this context, was evidence which “ has to do with the alleged facts of the offence ” with which the defendants were charged for the purposes of section 98 (a) of the Criminal Justice Act 2003 (“CJA”). The involvement in gangs by the defendants was relevant to their intention, along with their motive, and it was germane as to whether they shared a common purpose. It tended, furthermore, to rebut the defendants’ assertions that their persistent contact with each other simply concerned cannabis dealing and spending time “ chilling ”. 24. In the alternative, the judge determined that the gang evidence was admissible pursuant to section 101(1)(c) of the CJA, as important explanatory evidence, without which the jury would find it impossible properly to understand other evidence in the case. The evidence, for instance, of Heslop’s Exeter Prison notes and the lyrics of Hassan would otherwise be incomplete and incomprehensible. Similarly, the web of contacts via mobile telephones and the movements of those involved immediately prior to the shooting would lack their proper context if there was no reference to the existence of the gangs. 25. The judge noted that Police Sergeant Jones was in a position to testify about the existence of the gangs and to assist with their territories and rivalries. In the circumstances, he could act as an expert witness, applying the approach set out in Myers . Police Sergeant Jones had sufficient experience to act as an expert and was uniquely placed to assist the jury as to the circumstances in which the gangs conducted themselves in the relevant area. He was acquainted with these defendants, their culture and the nature of their feuds, and he would be warned to give the court a fair, independent and balanced account. The judge observed that Police Sergeant Jones had known Constable from late 2016. He was acquainted with his street name, “ Prime ”, and was aware that he was a member of SCG. Constable regularly dealt in cannabis. He had £23,000 in his possession on arrest but was simultaneously homeless. He had no other obvious means of earning money. The judge determined that Mr Jones was entitled, furthermore, to give his opinion as to the likelihood that someone regularly dealing in cannabis in a particular area would have to be a member of the gang controlling the area (see [15] above). 26. In the event, the judge admitted the following evidence: i) The handwritten notes on Exeter Prison notepaper seized when Heslop was arrested and the interpretation of them by another police officer, Detective Constable Declan James. This included the suggestion that they contained a reference to a retaliation attack on a man called Davis Kula on 6 May 2018 (see immediately below). From the content it appeared that the notes had been written between 5 and 18 September 2018 whilst Heslop was in Exeter Prison. The Crown suggested that it constituted a confession, given, inter alia , the following was set out: “Opps can’t say I aint on it, been on there block wid my rocket, hand ting and you cocked it. Had man dashing like forst, forest gum see man run, see dimmdawg put 2 in lung. Anything qb soon get burn, been in the field young it like how many times am I gonna ride on these punks, they come with the dots but no one burn, that what I call some amuter cunts.” It was suggested by the Crown that the latter part of the text referred to the retaliation attack a few days later (6 May 2018) when Davis Kula, a friend of Constable, received pellet wounds in his skull and back when shot at by two men on mopeds in Wealdstone. No serious injury was caused, a fact which matches the observation: “ but no one burn ”. Heslop additionally indicated he belonged to a gang and hates “ the Opps ” (see [60] below on this issue). ii) The evidence of Police Sergeant Jones regarding Hassan’s position as leader of the gang and his observation that others associated with Hassan followed his instructions whenever police officers were in attendance. iii) Various Apple Notes on Hassan’s mobile telephone and their interpretation by a Detective Constable James, including his reference to himself as a senior gang member/leader, and his mention of a fellow gang member “ Prime ” (said to be Constable). iv) Part of the lyrics on Hassan’s mobile telephone which are said by the prosecution to relate to the Essoldo Way murder. The judge determined that the lyrics appeared to include boasting in relation to shootings, guns and ammunition as well as sending young gang members into opposition territory. The judge determined this evidence revealed a propensity to handle both firearms and ammunition and it was, as a consequence, admissible under section 101(1)(d) of the CJA. v) Constable’s gang association, as demonstrated by his very extensive cannabis dealing, reflected inter alia in the fact he was in possession of £23,000 when arrested. Additionally, the judge admitted material discovered on his telephone in which he referred to himself as “ Prime ”, along with images of large quantities of drugs and a text message exchange with David Kula. vi) Police Sergeant Jones’s evidence of his experience in this context, the existence of the SCG and QB gangs and the extent of their respective territories and their rivalry, including in May 2018, the relevance of the area outside the Cashino and the shooting of Davis Kula. He was permitted to testify as to his opinion that a drug dealer operating in a particular area needed to be affiliated to a gang (see [15] above). vii) The co-accused Agyeman could be demonstrated to use the “ Menace ” telephone line. Material from his mobile telephone of conversations/arguments in relation to gang disputes and the references to “ qb yutes ” was deemed admissible to show his association with the SCG. 27. The relevant parts of the admissions read as follows: “ Stone City Gang/Grey Set Gang 7. The Stone City Gang formally known as the Grey Set Gang (“SCG/GSG”) is based in the HA3 post code area of Wealdstone. Their territory includes the High Street, Wealdstone, and the area outside and in the vicinity of the Cashino. 8. The Queensbury Boys (“QB”) is based in the HA8 area. Their territory includes Essoldo Way, Queensbury. 9. There is a history of apparent rivalry between the SCG/GSG and the QB. 10. On 6 May 2018 there was an attack on Davis Kula in the Wealdstone involving two suspects, each riding a moped. One of the suspects fired three shots at Mr Kula. He sustained pellet wounds to his skull and back. The injuries were not life-threatening or life-changing. 11. Irwin Constable, also known as “ Prime ”, “ Prime Minister ” and “ PM ” is associated with the SCG/GSG. 12. Saharded Hassan is also known as “ Krafty ” “ K ” and “ K-Man ” is associated with the SCG/GSG. He is considered a leader of the gang. 13. Samuel Agyeman, also known as “ Sammy ” and “ S1 ” is associated with the SCG/GSG. 14. All of the defendants in trial 1 are known to each other, and to the defendants who feature in trial 2. 15. There is no known connection between either Leon Maxwell or Antoine Jean-Marie and any gang.” 28. The judge directed the jury as to this evidence as follows: “ Gang evidence […] 82. Part of the evidence […] told you of the existence of the Stone City Gunners/Greyset gang and the Queensbury Boys and their territories. The agreed facts included the existence of the gangs’ apparent rivalry. The facts also set out the association of Irwin Constable with the SCG and the role SH was considered to have within the group. The prosecution also assert that RH is associated with a gang based on his extensive cannabis dealing in Harrow and what he has written in the notes found at his home on his arrest in 2019. Why have you heard about this evidence? 83. This evidence is before you as it is part of the facts of the case and because it tends to prove a motive for this attack and a common purpose of those said to be involved. You should bear in mind that the prosecution did not establish any link between Leon Maxwell and Antoine Jean Marie and any gang. However, the prosecution say that given the evidence of group planning, the specific geographical movement of the moped, the fact that the two victims were engaged in a cannabis deal in the Golf and the use of a firearm by the assailants all suggest this attack had an objective of gang rivalry and hostility. 84. You should approach this evidence fairly; gang association does not automatically mean that D is guilty of the offences charged but you may use the information as part of the body of circumstances which may tend to show a common purpose between those who you find had such an association and so a motive for the attack. 85. SH’s telephone […] was downloaded. The lyrics […] were found in that download. As you know SH admits he wrote only one section of these notes. No part of these lyrics can be evidence against IC or RH. They are only evidence in the case against SH. 86. You should consider this material. The first section “ got 1 on the n got one on the q ” is said to relate to the Queensbury shooting. This material may link the SCG gang to this shooting. The writer speaks of himself as a leader of the gang. In addition, the material makes several mentions of what are said to be shootings “ gang done couple drillings this summer ”. Overall, the content of these lyrics and the notes of RH may be said to demonstrate gang culture which apparently adheres to a particular way of life, the use of weapons and attacking other groups in order to sustain reputation and for personal kudos. Glorify guns. Overall, the prosecution say the content illustrates gang activity generally which displays violent rivalry. 87. Once again you should remember that gang association alone could not make an individual guilty of the crime alleged but you may take it into account as part of the evidence in the case.” The Appellants’ Cases 29. It was the case for all the appellants that the attack may not have had connections with gang activity and there was an insufficient basis for the jury to be sure that it was the men on the moped who were responsible for the shooting. 30. Heslop, whilst accepting that he regularly rode a moped to make cannabis deliveries, often wearing a gunmetal grey helmet, denied he was the driver of the stolen moped. During the evening of 1 May 2018, he went to Cashino either to obtain drugs from or pay a debt to Hassan. Thereafter he was at Marthorne Crescent, where he “ bagged up ” his supply of cannabis. The drugs were below the expected quantity and he called Hassan who arranged for Constable to bring an additional supply to offset the shortfall. Constable stayed 5-10 minutes. He denied that he left the property, alone or with Constable, prior to 9.30 pm when he took a taxi home to North Finchley. He suggested he had never ridden on the stolen bike, and he maintained he had no role in the shooting. The presence of his DNA on the grey painted helmet must have been the result of secondary transfer. He flew to Jamaica on 13 May 2018, because his uncle was unwell. 31. Hassan accepted that he was one of the leaders of the Stone City Gang. A number of younger men worked for him as drug dealers and runners, including Agyeman. He supplied a man called Max Walcott, whose runner was Heslop. He also supplied Constable, along with a number of other individuals. He denied that he knew about the arrangements to steal the moped. He did not play a part in the attack or intentionally provide any assistance or encouragement. He spent the afternoon on the High Street, engaged in his business of dealing in cannabis. The mobile telephone calls he made to Heslop were concerned with drugs and money. He met up with Heslop who gave him some cash and he arranged for Heslop to obtain additional drugs (he arranged for Constable to take drugs to Heslop). The presence of his DNA on the bullet casing was not the result of primary transfer. He suggested the lyrics found on his mobile telephone had been written by someone else, as he had only recently taken it over. 32. Constable maintained that he was on the High Street in Wealdstone on 1 May 2018 on account of his occupation, namely that of dealing in cannabis. This was the reason for his telephone contact with Hassan. He denied involvement in the shooting, and he suggested he had swapped his jacket because he had recently been made homeless and was without access to washing facilities. He did not know Heslop and had simply been aware of his association with another drug dealer. It was highlighted that there was no telephone contact between them. He maintained that his only contact with Heslop was when, at the request of Hassan, he delivered the drugs referred to above. He suggested that Hassan had attempted to use him as “ cover ” for the collection of the gun. He denied that he was the person seen on CCTV footage in Marthorne Crescent with Heslop and he disputed the identification evidence by Detective Constable Emmanuel. He suggested that battery on his mobile telephone was drained of power at 7.02 pm, which had made him uncontactable before the time of the “ ride-out ”. He had been at 70 Sefton Avenue at the time of the shooting, getting ready to go to an event in Dalston. The Grounds of Appeal (It is to be stressed that not all the points raised before the judge, as summarised above, were repeated in the Grounds of Appeal.) Heslop 33. It is submitted that the judge erred in law in admitting the evidence relating to gangs, since its prejudicial effect significantly outweighed any probative value it may have had. It is highlighted that there was no known motive for the shootings and that, consequently, the evidence relating to gangs simply introduced fatal speculation into the trial. It is suggested this material had no relevance to the case. 34. It is accepted that gang evidence can be admissible on the issue of motive, but only if the prosecution is able to demonstrate relevance. In this regard, the appellant Heslop relies on the judgment in Myers and it is emphasised that the prosecution was unable to identify a “ trigger event ”. Mr St Louis stresses that with evidence of this kind, there is usually evidence of active rivalry between two gangs at the relevant time. It is suggested that this critical feature is absent in the present case. Constable 35. On behalf of Constable, Ms Adkin similarly submits that the judge erred in permitting the prosecution to admit the evidence of gang rivalry and affiliation, for reasons broadly akin to those advanced by Mr St Louis. It is suggested that there was no evidence of “ tit for tat ” exchanges between the SCG and the QB. Although it was accepted that Davis Kular was shot as retribution, there is no evidence that the QB were responsible. 36. It is suggested, additionally, that the judge erred in refusing to discharge the jury when an irrelevant, but significant, piece of “ gang evidence ” was introduced by mistake (this point was argued by Hassan at trial, unsupported at that stage by Constable and Heslop). A recording which the prosecution obtained from the telephone of Agyeman was introduced which included a heated exchange involving two men, demonstrating – it was contended – the extent of the rivalry between the QB and the SCG. It contained threatening language, references to gang rivalry and violence; there was “ goading ” and threats were exchanged. The judge had been led to understand that one of the speakers was Ageyman, in part because the date given for the exchange was 2018. Instead, it related to a conversation in 2020 and did not feature any of the defendants in Trial 1 or Trial 2. The judge indicated that she had thought that one of the speakers was Agyeman and it was on this basis that it had been admitted. Mr Moloney (on behalf of Hassan) applied to discharge the jury, an application which – as we have just indicated – was not supported by Heslop and Constable. The judge declined to halt the trial and the jury were directed to ignore the content of the recording and Police Constable Declan James’s interpretation of it, given the date of the recording was corrected from 2018 to 2020. Although Constable did not support the application to discharge the jury at the time, it is now suggested that, on reflection, it is apparent that this event had rendered the trial unfair. 37. It is emphasised that as regards Constable, unlike his co-accused, there was no evidence of notes or lyrics that were said to have been written by him relating to the incident on 1 May 2018, nor are there any references or images, as with Heslop and Hassan, to involvement with guns, shootings and gang membership or affiliation. There was said to be an absence of material to link the appellant to the events in Essoldo Way. 38. Constable accepted that he was connected to Hassan, and his defence involved relying on the bad character evidence that his movements were explained by his occupation, that of a dealer in cannabis. Hassan 39. Mr Moloney on behalf of Hassan joined the submissions that any evidence of motive as available to the prosecution was insufficient to justify the admission of the gang-related evidence. He argued this material had been admitted, at least in part, on an erroneous factual basis, given there had been an admitted misunderstanding as to the reasons for the shooting of Davis Kula. Apart from motive, there was no sustainable basis to admit the gang-related evidence. 40. It was emphasised that although there was a case for the appellant to answer, it was circumstantial in nature, with the prosecution relying principally on evidence of the telephone contact with his co-accused and a DNA finding on a single bullet casing found at the scene of the shooting. In those circumstances, the gang evidence was fatally prejudicial to the appellant’s defence: given Hassan was alleged to be the leader of the gang, if the jury accepted the killing was gang-related, it was almost inevitable that the jury would conclude that he must have authorised what had occurred. 41. Mr Moloney joined Ms Adkin in her objections to the introduction of the recording of the highly charged, gang-focussed argument, which (as already summarised) was said to have involved Agyeman, purportedly demonstrating the existence of hostility between the SCG and the QB. Once the true position had been revealed, the judge refused Hassan’s application to discharge the jury, following the playing of the above recording. Instead, she directed the jury to disregard the recording and any evidence relating to its contents. It is submitted that the judge should have acceded to Hassan’s submission. 42. As to the supposed rivalry between the SCG and the QB, it is submitted that not only was this unsupported by the evidence, but that any rivalry appeared to involve a group from Northolt. Discussion 43. In Myers (an appeal to the Privy Council from a conviction in Bermuda), as in the present case, the murderous intention of the gunmen was not in dispute, and therefore the evidence of motive did not assist on that issue. Instead, the prosecution’s case was that the evidence of a feud between rival gangs was relevant to identity, which was the core issue in dispute. We stress this is the identical position in the present case: the evidence of the gang feud arguably demonstrated that the appellants had a motive to kill the victims. They were members of a group which was likely to have had an axe to grind, in the sense that they would have targeted the victims on the grounds of their perceived membership of the opposing group. The evidence contributed, therefore, to the prosecution’s proposition that it tended to demonstrate who was responsible, and it supported other incriminating evidence (see Lord Hughes at [44]). 44. Contrary to the submissions advanced before us, it is not a precondition for the introduction of gang evidence that the prosecution is able to establish that there had been a “trigger event”. The judgment of Lord Hughes has been misunderstood in this regard. For the appellants Myers and Cox , it happened to be the position that an important strand in the “ rope of evidence ” relied on by the prosecution was that there had been a trigger event which would have created a grievance within the opposing gang. As Lord Hughes observed, “ If that is a necessary part of the Crown case, it is for the Crown to prove the trigger event ” (see [49]). The Privy Council did not, however, go further by imposing an obligation on the prosecution in every gang case to establish a relevant trigger event as a precondition for the admission of gang-related evidence (see the first sentence of [50]: “ Brangman’s case was not put as one of reprisal in the course of a gang feud, nor did the Crown advance the case as depending on a plainly identifiable trigger event ”; Brangman was said, instead, to have a powerful motive via his gang association for the shooting ). 45. R v Ayowemi is an example of a case in which evidence of this kind can be admitted by more than one route. It was accepted in that appeal that evidence of gang membership and gang activity may be admissible in evidence, if it has “ to do with ” the alleged facts, pursuant to section 98 of the Criminal Justice Act 2003 (“CJA”) or as “ bad character ” evidence pursuant to section 101(1) of the CJA 2003. However, in that case the judge admitted the relevant gang-related material under section 101(1) of the CJA, and it was that section on which this court focussed in the judgment on the appeal. But a preliminary question in these circumstances is whether the evidence comes within the meaning of section 98(a). As Sir Brian Leveson P pointed out in Ditta [2016] EWCA Crim 8 at [7]: “Section 98(a) of the 2003 Act provides that where evidence is "to do with the alleged facts of the offence with which the defendant is charged", no bad character application need be made in relation to that evidence. In R v Sule [2013] Cr App R 3, Stanley Burton LJ commented, at [11], that the words "to do with" have a broad application: they would certainly cover prior conduct which provided a reason for the commission of an offence. ” 46. Section 98 provides: ““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.” 47. The decision in Sule merits detailed consideration in the present context. As summarised in the headnote, the victim was shot in circumstances that were said to have been, in effect, an execution, albeit the deceased was not the intended victim but had been mistakenly identified. In support of its case, the Crown introduced evidence of three incidents involving shootings that had occurred during a three-month period prior to the relevant shooting. It was submitted that these incidents demonstrated a feud for which the murder was intended to be a reprisal. Against that background, the judge held that the evidence of the three incidents was highly relevant to, and had to do with, the alleged facts of the offence with which the defendants were charged within the meaning of section 98. On an application for permission to appeal, it was submitted that evidence of the three earlier incidents ought not to have been admitted pursuant to this provision because the inference to be drawn was that the defendant was involved in a violent gang, probably dealing in prohibited drugs. It was additionally argued that the evidence was not “ to do with the alleged facts of the offence ” because the incidents were too distant in time from the murder that was the subject of the indictment. It was submitted the evidence concerning these incidents amounted instead to evidence of either the defendant's or another individual's bad character and that the requirements of the various statutory gateways to the admission of bad character evidence were not met. 48. Stanley Burnton LJ set out the court's conclusions on this as follows: “12.  In our judgment, the evidence of the three incidents was evidence that was alleged to do with the evidence of the murder in question. The words of the statute are straightforward, and clearly apply to evidence of incidents alleged to have created the motive for the index offence. Indeed, where the evidence is reasonably relied upon for motive, it would be irrational to introduce a temporal requirement. Take these examples. A man is wounded in a shooting. He is hospitalised for six months. On discharge, he is alleged to have shot the man who is alleged to have been his attacker. In another case, the reprisal is the day after the first attack. In the second case, the evidence of the first attack is not bad character for the purposes of s.98, in the first it is. 13.  In our judgment, the judge's decision was clearly right, and we pay tribute to his clear and cogent ruling. Incidents (1) and (3) gave rise to the alleged motive for the murder that was the subject of the indictment. Incident (2) [ … ] was part of the pattern: as was put by Mr Price, part of a series of “tit for tat” incidents. Each of them had to do with the others, as had the index offence. They were not merely relevant: they were intrinsic to the prosecution's case. 14.  We add that, given these four incidents took place within a period of three months, if there were a temporal requirement in s.98(a), we would have held it to be satisfied.” 49. The same reasoning applies in the instant case. W hat otherwise might have been viewed as a random or inexplicable shooting, was on the prosecution’s case a vital event forming part of the ongoing feud between two drug gangs in Northwest London – the SCG and the QB . For this material to be admissible there was no necessary temporal qualification, and any requirement for the prosecution to prove a “ trigger event ” depended on whether it is an important strand in the “ rope of evidence ” relied on by the Crown. That was not how the prosecution put its case. 50. We have no doubt but that this material was admissible on this basis. It had to do with the alleged facts of the offences with which the defendants were charged and the judge set out its relevance and ambit with admirable clarity. We quote once more from the relevant passage in the summing up: “83. This evidence is before you as it is part of the facts of the case and because it tends to prove a motive for this attack and a common purpose of those said to be involved. You should bear in mind that the prosecution did not establish any link between Leon Maxwell and Antoine Jean Marie and any gang. However, the prosecution say that given the evidence of group planning, the specific geographical movement of the moped, the fact that the two victims were engaged in a cannabis deal in the Golf and the use of a firearm by the assailants all suggest this attack had an objective of gang rivalry and hostility. 84. You should approach this evidence fairly; gang association does not automatically mean that D is guilty of the offences charged but you may use the information as part of the body of circumstances which may tend to show a common purpose between those who you find had such an association and so a motive for the attack.” 51. Having been properly admitted and having been the subject of entirely appropriate judicial directions, it was for the jury to decide whether the contentions based on the gang-related evidence were established. 52. We turn next to the recording which the prosecution obtained from the telephone of Agyeman and introduced into evidence. As summarised above, it included a heated exchange involving two men, demonstrating – it was contended – the extent of the rivalry between the two gangs, the QB and the SCG. The judge had made earlier detailed rulings in which she indicated that the Crown could adduce evidence of association vis-à-vis only one of the other four defendants from Trial 2, Sammy Ageyman. He had made a significant contribution to the planning of the attack, and he had the use of the “Menace Line” telephone. The judge limited the evidence in support of his gang association to an argument recorded on his telephone in which the principal speakers, apparently one from each of the two relevant gangs, were involved in a loud dispute. This was said to demonstrate the rivalry between, and posturing adopted by, the two gangs. As the judge observed, the conversation was frequently very difficult to hear and comprehend. 53. The front sheet of the transcript of this conversation suggested that it was downloaded from Ageyman’s mobile telephone which had been seized on 27 March 2018 (therefore, shortly before the murder). On Monday 1 February 2021 the recording was played to the jury and Detective Constable Declan James gave brief evidence as to its meaning. He explained that what could be heard was a conversation between two opposing gang members who were discussing “scores”. One was a QB member and one a SCG associate. The two speakers are aggressive and voluble, and it is to be emphasised that much of the content was very difficult to decipher even with the help of a transcript. Once this evidence had been given, it was immediately realised that the recording had been made in January 2020, 20 months after the murder. In addition, the recording was of two unknown speakers, and neither of them was Mr Ageyman. The judge had mistakenly understood that he had been involved. 54. Hassan thereon submitted that the jury should be discharged, given inadmissible and highly prejudicial material had been placed before the jury and he argued that no judicial direction was capable of curing the extreme prejudice occasioned by the admission of this material . 55. As the judge observed, the effect of the recording – on the basis of the most prejudicial, but plausible, interpretation – was to make the jury aware of the level of rivalry and antipathy between the two gangs, which was considerable. There was no mention of the three appellants, and the judge correctly pointed out that the discord between the two gangs had already been described in other material before the jury, and that this evidence simply constituted an element of a much wider picture. Therefore, it did not, in her view, create further impermissible prejudice. 56. However, the judge accepted that given this recording was made 20 months after the shooting, it was not necessarily relevant to the jury’s assessment of the position at the relevant time. In those circumstances it should not be relied on by the prosecution as part of its case. The judge was confident the mistake could be cured by a judicial direction: there was a logical reason which could be explained to the jury as to why the material should not form any part of the evidence on which they could rely. The jury would understand that the position 20 months after the incident would not necessarily reflect the position of the gangs in May 2018. Similarly, the interpretation of what was taking place given in evidence by Detective Constable James was also irrelevant and to be ignored. The judge concluded that the error could be rectified in a way which would be understood and applied by the jury. Accordingly, she refused Hassan’s application for a retrial. 57. The judge thereon directed the jury that it had been brought to her attention that the heated conversation had been recorded in the middle of January 2020, some 20 months after the incident with which they were concerned. She directed the jury to rely neither on the contents of the conversation nor on the interpretation of it by Detective Constable James. Put simply, it did not constitute evidence against any of the three appellants. On her direction, the transcripts that had been distributed to the jury were handed back to the court usher. 58. In our judgment, it is noteworthy that the fundamental difficulty with this evidence was appreciated immediately after it had been given, and it was addressed straightaway. It is relevant that only Hassan applied for the jury to be discharged, the other two appellants clearly having determined that the trial had not been rendered unfair. There was no further mention of this audio recording during the remainder of the trial, including during the course of the summing up. The appellants each received copies of the proposed legal directions as drafted by the judge in advance, and it was not suggested that the issue of this recorded conversation needed to be readdressed. 59. We are wholly confident that the verdicts are not rendered unsafe by this event. The appellants were not mentioned in the recording, which supplemented other material on the topic of gang rivalry. The jury would have readily understood that the conversations occurred long after the shootings in the present case, and, as just highlighted, the judge promptly and comprehensively dealt with the problem. 60. We should mention finally that Mr Moloney on behalf of Hassan contends that close examination revealed that if there was any “ gang ” rivalry with the SCG, it appeared to be with a group from Northolt. He relies on the contention that the Davis Kula incident (see [26] above) was subsequently revealed by the prosecution to be the responsibility of the Northolt group. It is an unexceptional event during a trial that assertions are rebutted and some points made on the evidence lose their force. This is a classic demonstration of the way in which evidence emerges in criminal trials and the verdicts in the present case are not rendered unsafe as a result of this shifting evidential landscape. 61. In our judgment these verdicts are safe and the appeals are dismissed.
{"ConvCourtName": ["Central Criminal Court"], "ConvictPleaDate": ["19 March 2021"], "ConvictOffence": ["attempted murder", "murder"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["in custody and on remand"], "RemandCustodyTime": ["402 days"], "SentCourtName": ["Central Criminal Court"], "Sentence": ["Constable was sentenced to custody for life on count 1 and the period of 24 years (less 402 days spent in custody and on remand) was specified as the minimum term. A concurrent sentence of 17 years’ detention was imposed on count 2.", "Hassan was sentenced to imprisonment for life on count 1 and the period of 32 years (less 402 days spent in custody and on remand) was specified as the minimum term. A concurrent sentence of 20 years’ imprisonment was imposed on count 2.", "Heslop was sentenced to imprisonment for life on count 1 and the period of 28 years (less 402 days spent in custody and on remand) was specified as the minimum term under section 322 of the Sentencing Act 2020. A concurrent sentence of 18 years’ imprisonment was imposed on count 2."], "SentServe": ["concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["two men"], "VicNum": ["two men"], "VicSex": ["his"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["CCTV footage", "Images and videos", "Police Sergeant Jones gave evidence", "DNA", "Handwritten"], "DefEvidTypeTrial": ["denied he was the driver", "defence involved relying on the bad character evidence"], "PreSentReport": ["data not available"], "AggFactSent": ["handgun", "appellants committed the offences together as part of a joint plan", "targeted the victims", "Hassan was the leader"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellants"], "CoDefAccNum": ["Kaleel Nyeila, Samuel Agyeman, Armani Ogilvie-Pitt and Abdi Karama", "RAJAE HESLOP SAHARDED HASSAN IRWIN CONSTABLE"], "AppealAgainst": ["against conviction"], "AppealGround": ["the judge erred in refusing to discharge the jury when an irrelevant, but significant, piece of “gang evidence” was introduced by mistake", "the judge erred in law in admitting the evidence relating to gangs, since its prejudicial effect significantly outweighed any probative value"], "SentGuideWhich": ["section 322 of the Sentencing Act 2020"], "AppealOutcome": ["appeals are dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["the verdicts in the present case are not rendered unsafe as a result of this shifting evidential landscape"]}
{"ConvCourtName": ["Central Criminal Court"], "ConvictPleaDate": ["2021-03-19"], "ConvictOffence": ["attempted murder", "murder"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["All appellants"], "SentCourtName": ["Central Criminal Court"], "Sentence": ["Constable was sentenced to custody for life on count 1 and the period of 24 years (less 402 days spent in custody and on remand) was specified as the minimum term. A concurrent sentence of 17 years’ detention was imposed on count 2.", "Heslop was sentenced to imprisonment for life on count 1 and the period of 28 years (less 402 days spent in custody and on remand) was specified as the minimum term under section 322 of the Sentencing Act 2020. A concurrent sentence of 18 years’ imprisonment was imposed on count 2.", "Hassan was sentenced to imprisonment for life on count 1 and the period of 32 years (less 402 days spent in custody and on remand) was specified as the minimum term. A concurrent sentence of 20 years’ imprisonment was imposed on count 2."], "SentServe": ["Concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Don't know"], "VictimType": ["Individuals"], "VicNum": ["2 of 2"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Police testimony", "Digital evidence", "Documentation", "DNA", "CCTV footage"], "DefEvidTypeTrial": ["Offender uses bad character evidence against co-accused", "Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["targeted the victims", "Hassan was the leader", "appellants committed the offences together as part of a joint plan", "Weapon /armed"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["7"], "AppealAgainst": ["against conviction"], "AppealGround": ["the judge erred in refusing to discharge the jury when an irrelevant, but significant, piece of “gang evidence” was introduced by mistake", "the judge erred in law in admitting the evidence relating to gangs, since its prejudicial effect significantly outweighed any probative value"], "SentGuideWhich": ["section 322 of the Sentencing Act 2020"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["the verdicts in the present case are not rendered unsafe as a result of this shifting evidential landscape"]}
514
CASE No: 201703511/A2 Neutral Citation Number: [2018] EWCA Crim 903 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 12 April 2018 B e f o r e : LORD JUSTICE GROSS MRS JUSTICE CHEEMA-GRUBB DBE MRS JUSTICE MAY DBE - - - - - - - - - - - - - - R E G I N A v ABDUL ADDOW - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - NON-COUNSEL APPLICATION - - - - - - - - - - - - - - J U D G M E N T This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity ( Sexual Offences (Amendment) Act 1992) , or where an order has been made in relation to a young person. MRS JUSTICE MAY: 1. This is a renewed application for leave to appeal sentence. 2. On 11 July 2017, in the Crown Court at Manchester, the applicant pleaded guilty to one offence of offering to supply a controlled drug of Class A to another, contrary to section 4(3)(a) of the Misuse of Drugs Act 1971 and a further offence of supplying a controlled drug of Class A to another under the same provision. Both offences concerned supply to undercover officers operating in the Rusholme area. On the first occasion 2 September 2016, the applicant sold the officer a bag which purported to be filled with cocaine but in fact contained paracetamol. On the second occasion, six days later, he sold the same officer a further bag, this time containing 0.1 gram cocaine at 80% purity. He was sentenced to 2 years for each offence, sentences to run consecutively, giving a total sentence of 4 years. Allowing full credit for his pleas, as the judge did, this equates to a sentence of 6 years after trial. 3. The applicant is now aged 21. He was just a few days short of his 20th birthday at the time of committing the offences in September 2016. He was not of good character, having eight previous convictions relating to drug offending, albeit none before which had resulted in a custodial sentence. 4. The pre-sentence report deemed him to be at a high risk of re-offending given his continued use of Class A drugs. The nature of the offences placed them within category 3 "significant" role in the Sentencing Council Guideline, which gives a starting point of four-and-a-half years with a range of up to 7 years. 5. The grounds of appeal are that the sentencing judge failed to take into account the applicant's age, the small amount of drugs supplied, the lack of antecedent history for any previous supply offence and the fact that this would be his first sentence of imprisonment. Further, that insufficient account was taken of totality. 6. In refusing leave the single judge (Spencer J) said this: "The high purity of the cocaine was an aggravating factor, as was your poor record and commission of the offences during a community order. Your age and the impact of the accident you had suffered afforded some mitigation, but the judge was entitled to take the view that, before credit for plea, each offence individually merited 3 years and that a total sentence of 6 years' custody was appropriate. It is not arguable that such a sentence was other than just and proportionate. The judge specifically had regard to totality. You were afforded full credit for your early guilty pleas. Though severe, it is not arguable that your sentence of 4 years' detention was manifestly excessive." 7. We respectfully agree and refuse this renewed application for leave. 8. Before leaving this case there are however two administrative matters with which we must deal. The first is that the sentence was wrongly expressed as a "custodial" sentence when, given the age of the applicant, it should properly have been expressed as "detention in a youth offending institution". The second matter is that the court record has noted the wrong figure for the victim surcharge order, which should be £170. We direct that the record be amended to reflect both these changes. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400
{"ConvCourtName": ["Crown Court at Manchester"], "ConvictPleaDate": ["11 July 2017"], "ConvictOffence": ["offence of offering to supply a controlled drug of Class A"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Manchester"], "Sentence": ["2 years for each offence, sentences to run consecutively, giving a total sentence of 4 years."], "SentServe": ["consecutively"], "WhatAncillary": ["victim surcharge order, which should be £170."], "OffSex": ["he"], "OffAgeOffence": ["few days short of his 20th birthday"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["supply to undercover officers"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["high risk of re-offending"], "AggFactSent": ["eight previous convictions", "\"significant\" role", "not of good character"], "MitFactSent": ["full credit for his pleas"], "VicImpactStatement": ["data not available"], "Appellant": ["applicant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["leave to appeal sentence."], "AppealGround": ["judge failed to take into account the applicant's age,"], "SentGuideWhich": ["section 4(3)(a) of the Misuse of Drugs Act 1971", "Sentencing Council Guideline,", "(Sexual Offences (Amendment) Act 1992)"], "AppealOutcome": ["refuse this renewed application"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["not arguable that your sentence of 4 years' detention was manifestly excessive.\""]}
{"ConvCourtName": ["Crown Court At Manchester"], "ConvictPleaDate": ["2017-07-11"], "ConvictOffence": ["offence of offering to supply a controlled drug of Class A"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Manchester"], "Sentence": ["2 years for each offence, sentences to run consecutively, giving a total sentence of 4 years."], "SentServe": ["Consecutively"], "WhatAncillary": ["victim surcharge order, which should be £170."], "OffSex": ["All Male"], "OffAgeOffence": ["19"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["supply to undercover officers"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["High risk of reoffending"], "AggFactSent": ["\"significant\" role", "not of good character", "eight previous convictions"], "MitFactSent": ["full credit for his pleas"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Other (e.g., application for extension of time to appeal)"], "AppealGround": ["judge failed to take into account the applicant's age,"], "SentGuideWhich": ["Sentencing Council Guideline,", "section 4(3)(a) of the Misuse of Drugs Act 1971", "(Sexual Offences (Amendment) Act 1992)"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["not arguable that your sentence of 4 years' detention was manifestly excessive.\""]}
307
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. Neutral Citation Number: [2024] EWCA Crim 292 I N THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2023/00540/B5 Royal Courts of Justice The Strand London WC2A 2LL Thursday 7 th March 2024 B e f o r e: LORD JUSTICE LEWIS MRS JUSTICE CHEEMA-GRUBB DBE THE RECORDER OF NORWICH ( HER HONOUR JUDGE ROBINSON SITTING AS JUDGE OF THE COURT OF APPEAL (CRIMINAL DIVISION) ____________________ R E X - v - MOHAMMED RIASAT MALIK ____________________ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _____________________ Non-Counsel Application ____________________ J U D G M E N T Thursday 7 th March 2024 LORD JUSTICE LEWIS: 1. On 23 rd January 2023, following a trial in the Crown Court at Bradford, the applicant, Mohammed Riasat Malik (now aged 49) was convicted of two offences: one of unlawful wounding, and one of having an offensive weapon in a public place. He was sentenced to three years' imprisonment for the first offence and two years imprisonment, to be served concurrently, for the second. 2. The applicant renews his application for leave to appeal against conviction after refusal by the single judge. 3. The facts can be stated shortly. The victim, Raza Ali, and the applicant had known each other since about 1996 as they lived at the same property. On 10 th August 2022, Ali confronted the applicant on the street outside the property as he believed that the applicant had stolen a Hugo Bass watch from him. Ali said that the applicant produced a kitchen knife and stabbed him. Ali was taken to hospital and treated for a stab wound. 4. At trial the prosecution relied upon the following, amongst other evidence: (1) The fact that Ali had sustained a stab wound to his abdomen, the knife having gone through his T-shirt and into his stomach. (2) The evidence of Ali, who said that the applicant had stabbed him. (3) The evidence of Liam Pemberton, who also lived at the building and who said that the two men were always arguing. He heard a loud argument on the street on 10 th August 2022 and he looked out. He heard Ali say, "He's stabbed me", and he saw the wound. Mr Pemberton said that Ali immediately told him that it was the applicant who had stabbed him. (4) The prosecution invited the jury to draw adverse inferences from the fact that the applicant had failed to mention matters in interview which he later relied upon in court. In particular, at trial he said that there had been an altercation between him and Ali inside his flat, and that Ali was the aggressor. The applicant said that he left the house but was confronted by Ali on the street. Ali then shouted, "He's stabbed me", even though he (the applicant) had not stabbed Ali. The applicant accepted that Ali had suffered a stab wound, but he said that he did not inflict it and that he did not have possession of a knife on the street. 5. The judge directed the jury that they had to be sure that the applicant unlawfully caused a wound to the victim. The judge noted that it was agreed that Ali had been unlawfully wounded. The real question for the jury was whether the prosecution had made the jury sure that it was the applicant who wounded Ali. The jury convicted. 6. In written submissions on behalf of the applicant, Miss Dean-White had sought leave to appeal on two grounds. First, she submitted that the judge invited the jury to speculate about the sale of the watch. The background to the dispute, according to Ali, was that he believed that the applicant had stolen a Hugo Boss watch from him. Miss Dean-White had asked Ali in cross-examination if he had in fact sold the watch to Cash Converters. She then produced a receipt, dated 25 th July 2022, some weeks before the incident, from Cash Converters in Ali's name. Ali said in evidence that that was a different watch, as he had a number of Hugo Boss watches and he had pawned another watch and other items at Cash Converters. 7. In her written proposed grounds of appeal, Miss Dean-White submitted that in summing up the judge invited the jury to speculate as to whether the applicant had sold the watch, pretending to be Ali. 8. Secondly, in the written proposed grounds of appeal, Miss Dean-White submitted that the judge invited the jury to speculate about one of the agreed facts. That was that a kitchen knife was found next to the applicant's bed, but that tests had shown that there was no DNA on it from Ali. Miss Dean-White submitted that the judge invited the jury to speculate that the applicant might have used another knife and thrown it away. 9. Dealing with the Cash Converter evidence first, the evidence was that Ali approached the applicant because he thought that the applicant had stolen his watch. Counsel had produced evidence in the form of a receipt dated 25 th July 2022 in the name of Ali, showing that a Hugo Boss watch had been sold to Cash Converters. There was also evidence given by a police officer that no evidence of identification was required by a person pawning an item at Cash Converters. No one would have had to produce a passport or a driving licence, or any other form of identification in order to be able to pawn an item. 10. Against that background the judge directed the jury on how to approach the question of the evidence o the receipt. He said that when assessing the truthfulness or otherwise in relation to the watch, the jury would need to have regard to the receipt. The judge said that the logical explanations for Ali's name being on the receipt were: Ali said that it related to a different watch, and the receipt did relate to a different watch; or, as it was the same watch that he said that the applicant had stolen, either he (Ali) was lying because he (Ali) had pawned it, or the applicant must have pawned it using Ali's name. The judge was not there inviting the jury to speculate. He was pointing out the logical possibilities relating to the receipt against the background of the evidence that had been given. We see nothing wrong in the way the judge directed the jury in relation to the receipt. 11. We turn to the knife. It was an agreed fact that a black handled knife was found next to a bed in the applicant's flat. The prosecution said that it was likely that that was the weapon used to stab Ali. However, another agreed fact was that that analysis showed that there was no DNA from Ali on the knife. The judge said that there were a number of logical possibilities. One was that the knife was not used to stab Ali. If so, of course, the presence of the knife in the applicant's flat would not be evidence that he stabbed Ali. Another possibility was that the knife was used to stab Ali, but was cleaned afterwards to remove any DNA. The judge said that a third possibility was that the knife had nothing to do with the attack. If so, and if the applicant had stabbed Ali, then the applicant would have had to have used another knife and discarded that other knife after the wounding and before he went back to the house. The judge said, thinking critically and without encouraging the jury to one conclusion or the other, that it was necessary for them to look at the possible logical conclusion before they came to any firm conclusion about how the evidence dealing with the absence of DNA on the knife in the bedroom affected their analysis of the evidence in the case. 12. We do not consider that it was helpful for the judge to introduce reference to the possibility of the applicant having used a different knife which he then disposed of before he returned to the house. That was not part of the prosecution case. However, we do not consider that that matter affects the safety of this conviction. The judge made it clear to the jury that they were free to disagree with anything he said about the evidence. He also repeatedly told them that they should examine the evidence critically; it was entirely a matter for them to determine what conclusions they could reach from the evidence. Further, we note that no objection was raised at the end of the summing up to the way in which this matter had been dealt with by the trial judge. 13. We do not consider, therefore, that any criticisms of the way the judge dealt with these two matters could conceivably affect the safety of the conviction. That is particularly the case when the totality of the evidence is considered, including the direct evidence given by Ali, the evidence of the immediate statement by Ali that the applicant had stabbed him, and the applicant's failure to mention the matters upon which he relied at trial. 14. Overall, therefore, we are satisfied that the applicant's conviction is safe. The jury had evidence from which they could properly conclude that the applicant was the man who stabbed Ali in the stomach with a knife and that he had for that purpose a knife in his possession in a public place, namely the street outside the building where he lived. 15. Accordingly we refuse the renewed application for leave to appeal against conviction. _____________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: [email protected] ______________________________
{"ConvCourtName": ["Crown Court at Bradford"], "ConvictPleaDate": ["23rd January 2023"], "ConvictOffence": ["unlawful wounding,", "offensive weapon"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Bradford"], "Sentence": ["three years' imprisonment for the first offence and two years imprisonment, to be served concurrently, for the second."], "SentServe": ["concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["applicant's flat."], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["1996 as they lived at the same property."], "VictimType": ["victim, Raza Ali"], "VicNum": ["victim, Raza Ali"], "VicSex": ["he"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["evidence of Ali,", "hospital"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["kitchen knife"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["applicant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against conviction"], "AppealGround": ["judge invited the jury to speculate"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["refuse the renewed application for leave"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["evidence from which they could properly conclude that the applicant was the man"]}
{"ConvCourtName": ["Crown Court At Bradford"], "ConvictPleaDate": ["2023-01-23"], "ConvictOffence": ["offensive weapon", "unlawful wounding,"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Bradford"], "Sentence": ["three years' imprisonment for the first offence and two years imprisonment, to be served concurrently, for the second."], "SentServe": ["Concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Victim testimony", "Medical evidence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["kitchen knife"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against conviction"], "AppealGround": ["judge invited the jury to speculate"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["evidence from which they could properly conclude that the applicant was the man"]}
198
Neutral Citation Number: [2012] EWCA Crim 136 Case No: 2011/02427/A3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MANCHESTER CROWN COURT HHJ HENSHELL (T20107458) Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/02/2012 Before: LORD JUSTICE LAWS MR JUSTICE OWEN and MR JUSTICE HADDON-CAVE - - - - - - - - - - - - - - - - - - - - - Between: REGINA Respondent v NEIL BROOK Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms Maura McGowan QC for the Appellant Andrew O’Byrne QC for the Respondent Hearing dates: 20 December 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Owen: 1. In early February 2011 the appellant, Neil Brook, stood trial on a single count of murder, and on 4 February 2011 was convicted of manslaughter. On 1 April 2011 he was sentenced to imprisonment for public protection under section 225 of the Criminal Justice Act 2003 with a minimum term of six years less 248 days served on remand. 2. On 14 December 2011 he renewed his application for leave to appeal against sentence following refusal by the single judge. We granted leave but adjourned the hearing of the appeal to 21 December, and invited representation by the prosecution. On 21 December we had the benefit of both skeleton arguments and oral submissions from Miss Maura McGowan QC for the appellant, and Andrew O’Byrne QC for the prosecution. 3. The issue to which the appeal gives rise is the effect of a verdict of manslaughter by provocation on an assessment of dangerousness under the dangerous offender provisions contained in chapter 5 of the Criminal Justice Act 2003 . 4. The Facts The appellant, who at the date of the offence was 32 years of age, and the deceased, Joseph Witkowski who was aged 27, were friends, and both lived in flats within the same building, 77 Wilbraham Road, Walkden. At about 4.40 a.m. on 24 July 2010 police were called to the address. The appellant was found standing in his flat wearing heavily blood stained clothing. The blood appeared to be dry. The appellant had laid out a pile of clothing and his medication and told officers that he was “going away for a long time”. The deceased was found lying in the bathroom. The door to the bathroom had been smashed and been removed from its hinges. There was blood on the walls, and in the sink and bath. The deceased was taken to hospital where unsuccessful attempts were made to resuscitate him. 5. The appellant said that his friendship with the deceased had broken down over a mistake in the spelling of the word “nutter” in a text message that he had sent to the deceased two days before the killing. The deceased had apparently taken offence to being called a “mutter”, and had sent abusive replies. At some time after midnight on 24 July, the deceased came to the appellant’s door, and shouted through the letter box. That woke the appellant who went to the door and opened it. The deceased, armed with a knife and imitation firearm “flew” at him. The appellant tripped him, grabbed one of two knives that he had taped to the wall at some time prior to the arrival of the deceased, and stabbed the deceased once or twice. The deceased was able to get away from him and retreated into the bathroom. But the appellant pursued him, grabbing the second of the knives taped to the wall and penetrating the door of the bathroom with the knife a number of times. He then kicked the door off its hinges, and subjected the deceased to a frenzied attack resulting in multiple injuries caused by forceful stabs to the body and repeated heavy kicks and stamps. A stab wound to the central chest which penetrated the heart was the probable cause of death. 6. The jury acquitted the appellant of murder but guilty of manslaughter by reason of provocation. In his sentencing observations the learned judge, who had presided over the trial, identified the evidence upon which the jury had arrived at its decision as to provocation in the following terms: “The provocation that the jury found was based on the behaviour of Mr Witkowski over a period of time, which is not particularly easy to pin down. It was based in part upon phone calls and text messages containing threats of one form or another, and included the mis-spelling of a particular word in a text message from you to him; namely the word mutter – MUTTER – in a text message sent on 23 July, two days before his death. That caused Mr Witkowski, for reasons which are not particularly clear, great offence. You and he had been friends prior to this, and that friendship had deteriorated following these threats. … when Mr Witkowski had arrived at your house at the time of the killing, he was in possession of an imitation gun, and a knife, but he was attacked by you almost as soon as he entered the house; your house. That was the evidence that was revealed in the Case.” 7. The learned judge then addressed the relevance of the jury’s verdict to the issue of whether the appellant satisfied the dangerous offender provisions. “The jury could not be sure that a reasonable man would not have behaved in the way that you did, faced with the same situation. However that, in my judgment, does not preclude a finding by me that you do pose a significant risk to members of the public occasioned by the commission by you of further such offences. In other words a finding that you are dangerous.” 8. As a general proposition that is undoubtedly correct; and Miss McGowan did not seek to persuade us otherwise. Section D of the SGC Guideline Manslaughter by Reason of Provocation provides that: “D 4.1 Manslaughter is a “serious offence” for the purposes of the provisions in the Criminal Justice Act 2003 for dealing with dangerous offenders. It is possible that a court will be required to use the sentences for public protection prescribed in the act when sentencing an offender convicted of the offence of manslaughter by reason of provocation.” Furthermore part D of the guideline identifies the factors to be taken into consideration in sentencing for manslaughter by reason of provocation, which includes: “1. Sentences for public protection must be considered in all cases of manslaughter.” 9. But it is also to be noted that at part B 2.1 the guideline acknowledges that in approaching the sentencing exercise in the case of manslaughter by reason of provocation, the sentencing judge must be faithful to the jury’s verdict, and sets out the assumptions that have to be made if that is to be achieved namely: “First, that the offender, at the time of the killing, lost self-control; mere loss of temper or jealous rage is not sufficient. Second, that the offender was caused to lose self-control by things said or done, normally by the person killed. Third, that the offender’s loss of control was reasonable in all the circumstances, even bearing in mind that people are expected to exercise reasonable control over their emotions and that, as society advances, it ought to call for a higher measure of self-control.” It is to be observed that the proposition that society advances in such a manner as to call for a higher measure of self-control is questionable. But the guidance otherwise reflects the well established principle that in passing sentence a judge must be loyal to the jury’s verdict. 10. But Miss McGowan submits that there was no proper basis upon which the learned judge could have concluded that the criterion set out in section 225 (1) (b) was satisfied, namely that “… that there is a significant risk to members of the public of serious harm occasioned by the commission by (the appellant) of further specified offences”. She relies upon the fact that the appellant had no previous record of offences for violence and that accordingly the assessment of dangerousness was necessarily to be made on the facts of the index offence alone, and that loyalty to the jury’s verdict required the learned judge to approach the issue upon the basis that at the time of the killing the appellant had lost control, that his loss of self-control was caused by things said or done by the deceased and that his loss of control was reasonable in all the circumstances. 11. The jury’s verdict is open in two interpretations, either that they were satisfied that the appellant had been provoked, or that the prosecution had failed to discharge the burden of disproving provocation. But in either case loyalty to the verdict required the learned judge to make the assumptions set out at B 2.1 of the guideline. 12. How then did the learned judge approach the issue? In the course of mitigation he stated in terms that “ in considering the question of dangerousness of course one has firstly to honour the jury’s verdict … ” In passing sentence he described the attack on the deceased as ferocious and relentless. He went on to set out his reasons for his conclusion that the appellant satisfied the dangerous offender provisions in the following terms: “The facts of this case, viewed as a whole, including all the circumstances which we have heard in evidence, and including the verdict of the jury, are such that I am satisfied that you do present just such a risk to members of the public. The conclusion of the author of the ‘Pre-Sentence Report’ is based in part on the view of the author, that you did not consider the consequences of your behaviour, or alternative means to address the situation which had developed for some short time prior to the death. That opinion, in my judgment, is part only of the fact of underlying any conclusion that I have reached. The author of the ‘Pre-Sentence Report’ undoubtedly, as it says in the Report, exposed difficulty in understanding the nature of the provocation that went on in that house, and your reaction to it. In any event, any decision on the question of dangerousness can only be for this Court in the final analysis to make; and I make that judgment on the basis of the circumstances of the offence, and all the evidence available to me. I am conscious of the fact that you have not committed offences of violence in the past, and I am also conscious of the remorse that you have expressed, and also the fact that you have now been successful in remaining drug free. Nevertheless, I am satisfied that you do such a danger, as I have identified, to members of the public, of committing further offences, occasioning thereby serious harm. That risk, is in my judgment, a significant risk, caused by you committing further specified offences.” 13. It is therefore clear that the learned judge’s conclusion was based upon the evidence in the case, and secondly upon the conclusion at which the author of the pre-sentence report had arrived. The appellant had not previously been convicted of any violent offence, and there was no further information that could be relied upon to support a finding of dangerousness. 14. As to the facts of the case, whilst the learned judge cannot be faulted for describing the attack as ferocious and relentless, he was bound to make the assumption that the appellant’s loss of control was reasonable in all the circumstances. It is difficult to see how such a loss of control could provide the basis for the conclusion that the appellant presents a significant risk to members of the public of serious harm occasioned by the commission of further offences specified in schedule 15 of the Act . 15. As to the PSR, its author came firmly to the conclusion that the appellant was a dangerous offender within the meaning of the 2003 Act . The essence of his report is to be found in its paragraph 4.3: “4.3. In terms of whether Mr Brook is deemed Dangerous, I have considered the nature of the current offence. His behaviour caused the death of his victim, therefore it is indisputable that serious harm has been caused. Considering his wider risk of ‘serious harm’, I have many concerns regarding his case. Given the fact that he failed to consider other means by which to address conflict in the days leading up to this assault, he had prepared knives at key positions of vulnerability and most significantly, once he had stabbed the victim, he pursued him, kicking and stabbing the door with immense force and determination to deliver the fatal stab in the bathroom. The Medical report documents multiple injuries sustained by the victim. All this evidence suggests a brutal attack that was disproportionate to the situation, especially the victim seeking protection in the bathroom. Considering the immense of any possible further offences, this is more difficult to predict. Mr Brook does not have a history of violence. However understanding the current matters suggests that key risk factors include conflict with others and Mr Brook’s resorting to extreme measures to address that conflict. This coupled with Mr Brook’s lack of insight into triggers to his violence suggests that any such offences could happen at any time. Based on these factors, I assess that Mr Brook is in fact Dangerous as defined by the CJA 2003 , Section 225 (amended 2008). ” 16. His conclusion contains a further material paragraph: “Mr Brook did not consider the consequences of his behaviour or alternative means by which he could have addressed the situation. It is concerning that he will readily use weapons, which unfortunately has now resulted in a death. Considering the fact that Mr Brook had already prepared two knives in accessible locations (bathroom and front door) suggests that he was prepared for conflict. Given the nature of the exchange between both men in the days preceding the fatal incident would admittedly have led to a degree of anticipation on Mr Brook’s behalf. His relative isolation and the uncertainty of the situation could have led to a heightened level of emotional arousal and anxiety. When eventually confronted on that fateful morning, overwhelmed by the situation, he clearly pursued the course of action that led to a brutal and sustained attack on the victim. He failed to consider other means by which he could have addressed the situation, for example, calling the police when confronted and not allowing the victim into his property. Again, the element I find most disturbing in this case was Mr Brook’s endeavours to gain access to the bathroom to assault the victim again.” 17. That analysis was based on the facts of the case as the author of the report understood them to be, and upon his interview with the appellant. The analysis is compelling. But in a number of critical respects it is wholly inconsistent with the jury’s verdict from which it must be assumed that the appellant’s loss of control was reasonable in all the circumstances, namely the failure to consider other means by which to address the conflict in the days leading up to the attack, secondly the conclusion that the attack was disproportionate to the situation, thirdly risk factors including conflict with others and the resort to extreme measures to address such conflict, including the use of weapons, and lastly the failure to consider the consequences of his behaviour. 18. Thus to place reliance upon the conclusion at which Mr O’Kane had arrived inevitably had the effect of going behind the jury’s verdict. 19. We are therefore bound to conclude that there was no proper basis upon which the learned judge could conclude that the dangerous offender provisions were satisfied. It follows that this appeal must be allowed. 20. It is therefore necessary to consider the sentence that ought to have been imposed on the appellant. The guideline identifies three sentencing ranges defined by the degree of provocation, low, substantial and high. Within each range the recommended starting point is based on provocation taking place over a short period of time. The court will then move from the starting point by considering the length of time over which the provocation has taken place and by reference to any aggravating and mitigating factors. 21. As the learned judge observed in passing sentence, the provocation is not particularly easy to pin down. It was based in part on phone calls and text messages containing threats in the days preceding the killing. But it appears that the most significant element was the deceased’s arrival at the appellant’s flat in the early hours of the morning armed with an imitation gun and a knife. In our judgment that amounted to a substantial degree of provocation occurring over a short period, which indicates a starting point of 8 years custody. But the offence was severely aggravated by the frenzied nature of the attack, the post-mortem examination having revealed that the victim had 104 different marks of injury on his body, including many bruises and abrasions, and in addition to the fatal stab wound to the heart, three stab wounds to the thigh and many incised wounds to the hands consistent with the deceased’s attempts to defend himself. There were also injuries consistent with kicks and punches to the face. 22. Save for the remorse expressed by the appellant there are no mitigating features. In our judgment the appropriate sentence was one of 12 years imprisonment. 23. The sentence imposed upon the appellant will therefore be quashed, and we substitute for it a sentence of 12 years imprisonment. The appellant will continue to be entitled to credit for the period served on remand.
{"ConvCourtName": ["MANCHESTER CROWN COURT"], "ConvictPleaDate": ["4 February 2011"], "ConvictOffence": ["manslaughter"], "AcquitOffence": ["murder"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["remand."], "RemandCustodyTime": ["248 days"], "SentCourtName": ["MANCHESTER CROWN COURT"], "Sentence": ["minimum term of six years less 248 days served on remand.", "imprisonment for public protection"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["32 years of age,"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["lived in flats"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["friends"], "VictimType": ["the deceased"], "VicNum": ["the deceased"], "VicSex": ["him"], "VicAgeOffence": ["aged 27"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["lived in flats"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["multiple injuries", "post-mortem examination"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["significant risk"], "AggFactSent": ["frenzied attack"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence"], "AppealGround": ["no proper basis upon which the learned judge could have concluded that the criterion set out in section 225 (1)(b) was satisfied"], "SentGuideWhich": ["Criminal Justice Act 2003."], "AppealOutcome": ["quashed, and we substitute for it a sentence of 12 years", "allowed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["no proper basis upon which the learned judge could conclude that the dangerous offender provisions were satisfied."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["Manchester Crown Court"], "ConvictPleaDate": ["2011-02-04"], "ConvictOffence": ["manslaughter"], "AcquitOffence": ["murder"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["248 days"], "SentCourtName": ["Manchester Crown Court"], "Sentence": ["minimum term of six years less 248 days served on remand.", "imprisonment for public protection"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["32"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Male"], "VicAgeOffence": ["27"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["post-mortem examination", "Medical"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["High risk of reoffending"], "AggFactSent": ["frenzied attack"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence"], "AppealGround": ["no proper basis upon which the learned judge could have concluded that the criterion set out in section 225 (1)(b) was satisfied"], "SentGuideWhich": ["Criminal Justice Act 2003."], "AppealOutcome": ["allowed", "Allowed&Sentence Replaced by More Lenient Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["no proper basis upon which the learned judge could conclude that the dangerous offender provisions were satisfied."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
497
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 1538 No. 202301988 A3 Royal Courts of Justice Wednesday, 1 November 2023 Before: LADY JUSTICE THIRLWALL LORD JUSTICE POPPLEWELL MR JUSTICE JAY REX V PAUL CROFT __________ Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] _________ MR M. WILSON appeared on behalf of the Appellant. ________ JUDGMENT LORD JUSTICE POPPLEWELL: 1 On 16 May 2023, in the Crown Court at Caernarfon, the appellant (then aged 51) pleaded guilty to being the owner of a dog which caused injury while dangerously out of control in a public place, contrary to s.3(1) and (4) of the Dangerous Dogs Act 1991 . He was sentenced to 17 months' imprisonment suspended for two years, with various ancillary orders. He appeals against the length of the custodial term of the sentence with leave of the single judge. 2 At 5.30 pm on Tuesday 14 June 2022 Mr and Mrs Cunnington were walking their seven-month-old Cockapoo puppy along Lord Street in Blaenau Ffestinoig when they saw the appellant. He appeared intoxicated and was holding a large dog on a lead which barked aggressively towards the Cunningtons' puppy. It was a Belgian Malinois cross-breed. Just under two hours later, the Cunningtons were returning from their walk when they saw the appellant's dog again. It was not on a lead and the appellant was not in sight. The appellant's dog attacked the Cunningtons' puppy. It held the puppy in its mouth and shook it like a puppet. The attack lasted some time, during which Mr Cunningham received a bite to his hand in his unsuccessful attempts to rescue the puppy from the jaws of the larger dog. Eventually a neighbour intervened and grabbed the dog by the neck until it dropped the puppy. The police were called and they found the appellant asleep on the middle of the path some way off. He was snoring loudly and difficult to arouse. Once awake the appellant confirmed that he was the owner of the dog. Another woman had earlier in the afternoon warned the appellant that he should put the dog on a lead. 3 The puppy required surgery and suffered additional puncture wounds. It made a full recovery in due course. Mr Cunnington's hand required a tetanus injection. Mr and Mrs Cunnington felt traumatised by the incident for some time. 4 The appellant had 20 convictions for 64 offences. None involved dogs. The instant offence occurred during the operational period of a suspended sentence of 20 weeks' imprisonment suspended for 18 months, imposed at Merseyside Magistrates' Court for the offences of having a knife in a public place and battery. By the time the appellant came to be sentenced for the dog offence, 16 weeks of that 20-week sentence had been activated by North West Wales Magistrates' Court by an order made on 8 September 2022 when sentencing for another offence, harassment, committed during the operational period. 5 The judge when sentencing had regard to the relevant Sentencing Council Guideline. As agreed by prosecution and defence, he treated the offence as involving culpability category B by reason of the lack of safety and control measures where an incident could reasonably be foreseen; and harm category 2 by reason of the injuries to the puppy and Mr Cunnington. The Guideline gives a starting point for that category of six months with a range of up to 12 months. The judge identified as aggravating features: first, previous convictions; second, the sustained nature of the attack; third, that the reason the dog was out of control was the appellant's ingestion of alcohol; fourth, the injuries to the puppy as well as Mr Cunnington; and fifth, the offence being committed during the operational period of a suspended sentence. He said that those aggravating features took the offending outside the category range and that a sentence after trial would have been 20 months. He applied a discount of 15 per cent for the guilty plea in reaching a sentence of 17 months. No criticism is made of the amount of credit for the guilty plea. 6 The single ground of appeal is that there was no justification for going beyond the 12-month period as the appropriate sentence after a trial, and accordingly the sentence was manifestly excessive. We agree. The suspended sentence had already been activated to the extent considered appropriate by the North West Wales Magistrates, which was all bar four weeks of it, and the commission of this offence during the operational period did not warrant any significant further uplift. The aggravating features identified justified moving to the top of the bracket, but not beyond. Had the judge taken the appropriate sentence after a trial as 12 months, he would have reduced it to 10 months, rounding down slightly, in giving 15 per cent credit for plea. 7 Accordingly, we will quash the custodial term of the sentence of 17 months and replace it with a term of 10 months. In all other respects, including the suspension and ancillary orders, the sentence remains unaffected. To that extent, the appeal is allowed. _______________
{"ConvCourtName": ["Crown Court at Caernarfon"], "ConvictPleaDate": ["16 May 2023"], "ConvictOffence": ["being the owner of a dog which caused injury while dangerously out of control"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Caernarfon"], "Sentence": ["17 months' imprisonment suspended for two years, with various ancillary orders."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["51"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["intoxicated"], "OffVicRelation": ["when they saw the appellant."], "VictimType": ["Mr and Mrs Cunnington were walking their seven-month-old Cockapoo puppy"], "VicNum": ["Mr and Mrs Cunnington were walking their seven-month-old Cockapoo puppy"], "VicSex": ["Mr and Mrs Cunnington were walking their seven-month-old Cockapoo puppy"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["surgery and suffered additional puncture wounds"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["committed during the operational period of a suspended sentence.", "ingestion of alcohol", "injuries to the puppy", "previous convictions", "sustained nature"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against the length of the custodial term of the sentence"], "AppealGround": ["The single ground of appeal is that there was no justification for going beyond the 12-month period as the appropriate sentence after a trial, and accordingly the sentence was manifestly excessive."], "SentGuideWhich": ["s.3(1) and (4) of the Dangerous Dogs Act 1991", "Sentencing Council Guideline"], "AppealOutcome": ["we will quash the custodial term of the sentence of 17 months and replace it with a term of 10 months."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["no justification for going beyond the 12-month period as the appropriate sentence after a trial, and accordingly the sentence was manifestly excessive. We agree."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["Crown Court At Caernarfon"], "ConvictPleaDate": ["2023-05-16"], "ConvictOffence": ["being the owner of a dog which caused injury while dangerously out of control"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Caernarfon"], "Sentence": ["17 months' imprisonment suspended for two years, with various ancillary orders."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["51"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Yes-drinking"], "OffVicRelation": ["Stranger"], "VictimType": ["Individual person"], "VicNum": ["1 of 1"], "VicSex": ["Mixed"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Medical evidence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["committed during the operational period of a suspended sentence.", "injuries to the puppy", "ingestion of alcohol", "sustained nature", "previous convictions"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against the length of the custodial term of the sentence"], "AppealGround": ["The single ground of appeal is that there was no justification for going beyond the 12-month period as the appropriate sentence after a trial, and accordingly the sentence was manifestly excessive."], "SentGuideWhich": ["Sentencing Council Guideline", "s.3(1) and (4) of the Dangerous Dogs Act 1991"], "AppealOutcome": ["Allowed&Sentence Replaced by More Excessive Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["no justification for going beyond the 12-month period as the appropriate sentence after a trial, and accordingly the sentence was manifestly excessive. We agree."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
381
Case No: 2011/1851/C2 Neutral Citation Number: [2012] EWCA Crim 1457 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SNARESBROOK CROWN COURT Her Honour Judge Kamill T20107536 Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/07/2012 Before: LORD JUSTICE MOSES MR JUSTICE UNDERHILL and HIS HONOUR JUDGE INMAN, QC - - - - - - - - - - - - - - - - - - - - - Between: William Bewley Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr M Skelley (instructed by Edwards Duthie Solicitors ) for the Appellant Mr B Temple (instructed by The Crown Prosecution Service ) for the Respondent Hearing date: 24 th May, 2012 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Moses : 1. This appeal concerns an Italian Kimar model 85 starting pistol originally designed to fire blank cartridges. It was constructed with a solidly blocked dummy barrel. But part of its barrel had been removed by drilling, leaving a small section of the original blockage through which ran an off-centre hole with a diameter of approximately 2 mm. The top part of the hammer was broken off. 2. Mr Miller, a senior forensic scientist at the Metropolitan Police Service Forensic Firearms Unit, was, however, able to fire the starting pistol. He mounted it in a vice or clamp and loaded it with a specially selected lead pellet of 8.4 mm diameter. He used a mallet and punch to hammer that pellet through the muzzle tightly against the mouth of the hole within the barrel. 3. He then discharged that projectile by firstly loading an 8 mm calibre blank cartridge into the gun and then used a mallet and punch to strike the firing pin in order to discharge the blank cartridge. As a result of the partially unblocked barrel, high pressure gasses were expelled through the offset hole and thus the muzzle-loaded projectile was discharged. The projectile penetrated chamois leather and ballistic soap intended to simulate human skin and flesh. Mr Dyson, the firearms expert retained by the defence, did not dispute that by taking those elaborate steps the starting pistol would discharge the specially selected muzzle-loaded pellet and penetrate the simulated human skin and flesh. 4. By her ruling dated 1 March 2011, Her Honour Judge Kamill, at Snaresbrook Crown Court, ruled that the starting pistol was a prohibited firearm, possession of which was contrary to s.5(1)(aba) of the Firearms Act 1968. Following that ruling, the appellant pleaded guilty. 5. The appellant was undoubtedly in possession of the starting pistol. He had escaped from prison following a sentence for murder on 5 March 2001. He had been at large for about nine years. On 4 June 2010, when officers attempted to arrest him in Kent, he reached towards a cabinet and took hold of the starting pistol. He told the police officers that it was not a working firearm. A full court gave permission to appeal against conviction. 6. By s.5(1)(aba) a person commits an offence if he is in possession of:- “any firearm which either has a barrel less than 30 cm in length or is less than 60 cm in length overall, other than an air weapon, a muzzle-loading gun or a firearm designed as signalling apparatus.” “Firearm” is defined in s.57(1) of the 1968 Act: “In this Act, the expression firearm means a lethal-barrelled weapon of any description from which any shot, bullet, or other missile can be discharged and includes – (a) any prohibited weapon, whether it is such a lethal weapon as aforesaid or not; and (b) any component part of such a lethal or prohibited weapon; and (c) any accessory to any such weapon designed or adapted to diminish the noise or flash caused by firing the weapon”. 7. Both experts accepted that the starting pistol was lethal because it could penetrate that which was commonly accepted to simulate human skin. The essential question was whether any shot, bullet or other missile could be discharged from the starting pistol when the only means of such a discharge was the elaborate technique deployed by the expert which we have already described. 8. The Crown’s essential argument was that the pistol was capable of discharging a missile. The test was not whether the weapon could be fired easily or effectively but was merely whether it had the capacity to discharge a missile. The fact that it required expertise to discharge that missile was nothing to the point. 9. The first and essential question was that posed by the statute in the opening words to section 57(1). There being no dispute but that the starting pistol was a lethal-barrelled weapon, the statutory question was whether any shot, bullet or other missile could be discharged from it. This was the question which the judge in her ruling answered in the affirmative. 10. This argument was founded in part upon the decision of this Court in R v Law [1999] Crim LR 837. The charge in that case was brought under s.5(1)(a) which relates to:- “(a) any firearm which is so designed or adapted that two or more missiles can be successfully discharged without repeated pressure on the trigger.” The weapon in issue had been designed to be used as a semi-automatic weapon but was modified (in so far as it is possible to follow the short summary) with the intention that it should not be capable of burst fire. However, it did remain capable of burst fire if used by an expert. 11. The Court rejected an argument that the prosecution had to prove that the firearm had been designed or adapted with the intention of being used as a semi-automatic weapon. As the commentary to the short report points out, the decision of the Court probably went further than it needed. The section requires no more than proof that the firearm was designed or adapted to be capable of burst fire; it does not require proof that it was, in fact, capable of burst fire. But the Court focussed on the firearm’s capacity. 12. It is for that reason that the authority is significant in this appeal. The only statutory question is whether any shot, bullet or other missile could be discharged from the weapon. Law is authority for the proposition that the mere fact that a weapon’s capacity to discharge a missile could only be demonstrated by an expert is irrelevant to whether the weapon falls within the statutory definition of firearm. ( R v Pannell [1983] 76 Cr App R 53 also establishes that proposition: the ability of the carbines to fire automatically required an operation of some delicacy achieved only by an expert.) 13. Similar issues had arisen in R v Clarke [1985] 82 Cr App R 308 . In that case, a sub-machine gun was found to be incomplete, without trigger, pivot pin or magazine. But it had been designed for fully-automatic fire only and could be operated by use of a piece of string tied across the “sear” (the catch keeping the hammer at full or half-cock) and around the trigger guard so that by applying tension to the string the gun could be operated. 14. The Court disapproved Jobling [1981] Crim L R 625 in which Taylor J ruled that it was insufficient to ask whether the weapon was originally designed to fire continuously; the question was whether it remained so. Relying on the decision of the Court of Appeal in Pannell the Court of Appeal in Clarke took the view that the words in s.5(1)(a) were descriptive of the kind of firearm which is prohibited rather than descriptive of an individual weapon at the very time the accused was alleged to have been in possession of it (313). But it acknowledged that a weapon might become so damaged or altered, by accident or design or by the removal of so many components, that it could no longer fairly be described as a “weapon” (313). Alternatively, the gun, even after the trigger, pivot pin and magazine had been removed, was a component part of a prohibited weapon (313-314). 15. The question in the instant appeal is not whether the gun was designed or adapted to discharge a shot, bullet or other missile, as in Law, Clarke , Jobling and Pannell but whether it had the capacity to do so. Those cases are of significance in that they teach that the mere fact that only an expert could discharge a missile from the starting pistol does not mean that it did not have the capacity to discharge a missile and thus did not remove it from the scope of the definition in section 57(1). 16. Although s.57(1) uses the present tense, “can be discharged”, a weapon may fall within the definition in s.57(1) despite some temporary fault at the time it is in the possession of the accused. Even Taylor J in Jobling acknowledged that a mere temporary fault would not preclude the weapon from the prohibition. So did Eveleigh LJ in Pannell (cited in Clarke at 313). The very notion of the capacity of a weapon must refer not only to its condition at the time of possession but to its construction and its potential as a means of discharging a missile. But once it is recognised that a gun might fall within the definition of firearm, even if its condition at the time renders it incapable of firing, the question arises as to the extent to which it is permissible to look to possible alterations to the gun from the condition in which it is found in the possession of the accused. If a minor repair is all that is needed, the gun is a firearm. But what if it needs a major conversion, adaptation or repair before it can discharge a missile? 17. This is an issue previously considered by the courts. In Cafferata v Wilson [1936] 3 All ER 149 , the Divisional Court, on an appeal by way of Case Stated, decided that a dummy revolver which was not capable of firing a bullet or other missile was a firearm within the meaning of s.12(1) of the Firearms Act 1920 or, alternatively, all the parts of the dummy other than the solid barrel were parts of a firearm. The dummy shared the characteristics of the starting pistol in the instant appeal in that there was a vent hole for the escape of gas but, in contrast, no hole had been drilled such as to permit the discharge of a missile. Lord Hewart CJ said, in his brief judgment:- “The magistrate has held that the article as a whole is part of a firearm within the meaning of the definition. That is quite a tenable proposition. If something had had to be added to the dummy to make it into a complete revolver, the dummy might be said to be part of a revolver. It seems to make no difference that the decisive part was not to be in addition, but an adaptation of what was already there. It is easier to support the decision from another point of view. The dummy contains everything else necessary for making a revolver except the barrel, and therefore all the other parts of it except those which require to be bored are ‘parts thereof’ within the meaning of the section. The magistrate has not misdirected himself and the appeal must be dismissed.” 18. The principle which appears to have been identified in Cafferata is that a dummy pistol capable of adaptation, in that case by boring the barrel, is either a firearm or is part of a firearm within the meaning of the predecessor to s.57(1). 19. That principle was followed in R v Freeman [1970] 54 Cr App 251. A .38 starting pistol with a revolving chamber had constrictions in the front ends of the firing chambers and a solid barrel. But those obstructions could readily be removed by drilling, whereafter the revolver would be capable of firing bulleted ammunition with lethal force (page 253). The Court traced the successors to the Firearms Act 1920, and the relevant statutory provision at the time of Cafferata . It concluded that the Firearms Acts of 1937 and 1968 re-enacted, in slightly different language, the provisions of the 1920 Act. The Court applied the principle that the 1937 and 1968 Acts should be deemed to be enacted by legislature acquainted with the actual state of the law and the practice of the courts at the date when they were passed (page 255). Applying that principle the Court concluded that the 1937 and 1968 Acts embodied the principle in Cafferata into the law. Sachs LJ said:- “It would indeed be unfortunate if an object, which by the use of an electrical drill of a type that can be bought at almost any general store in any High Street can be so easily adapted into a lethal weapon, should not come within s.1(1) of the Act (the 1968 Act).” The Court added that it would be a question of fact and degree whether the subject matter of a charge fell within the ambit of the Act but warned that the intention of the manufacturer of the subject matter of the charge was irrelevant to the issue which the jury had to try (referring to Read v Donovan [1947] KB 327 , the case of a signal pistol (256-257)). 20. If this Court is compelled to apply Freeman then there is no escape from the conclusion that the gun in the instant case fell within the meaning of firearm and thus within s.5(1)(aba). It profits the appellant nothing to refer to the trenchant criticism expressed by the Lord Justice-General in Kelly v MacKinnon [1982] SCCR 205 . The Scottish Court declined to follow Cafferata ; the fact that the replica Colt revolvers could be easily converted into a firearm did not bring the weapon within the meaning of s.57(1) of the 1968 Act. That section poses the statutory question whether a firearm is a weapon which “can be discharged”, not whether it could, on adaptation, be discharged in the future. The Lord Justice-General took the view that whether it would be easy or difficult to convert an article, not itself capable of discharging a bullet or missile, is “quite irrelevant” (212). 21. Nor could the unconverted replica be regarded as a component part of “such a lethal…weapon”. S.57(1)(b) required the part in issue to be a component part of a lethal weapon from which any shot, bullet or other missile can be discharged and not a component part of something which, when completed, would become a lethal weapon (page 208). Lord Cameron also referred to a provision of the Firearms (Amendment) Act 1936 which was, as he put it, “completely ignored” by the Court in Cafferata , namely, s.9(2), now re-enacted as s.4(3) of the 1968 Act. That sub-section makes it an offence for a person other than a registered firearms dealer to convert into a firearm anything which, though having the appearance of being a firearm, is so constructed as to be incapable of discharging any missile through its barrel. The plain corollary, as Lord Cameron put it, is that if an article is constructed as to be incapable of discharging any missile, then it does not fall within the definition of a firearm in s.57(1), even if it could be constructed so as to be capable of discharging any missile (216 and see 213). 22. However compelling this reasoning, it is not open to this Court to apply it unless the statutory scheme is different from that which was in force at the time of those decisions. 23. Since the Firearms Act 1968 came into force, the Firearms Act 1982 has widened the scope of the 1968 Act to embrace imitation firearms readily convertible into firearms to which s.1 of the 1968 Act applies. Section 1 of the Firearms Act 1968, which imposes the requirement of a firearms certificate, applies to every firearm except shotguns as defined (s.1(3)) and those air weapons which fall outwith rules made by the Secretary of State (s.1(3)). Section 1 of the 1982 Act includes within the scope of the 1968 Act, subject to specific exclusions (such as ss.4(3)and(4) of the 1968 Act) imitation firearms if they have the appearance of a firearm to which s.1 of the 1968 Act applies and are so constructed or adapted as to be readily convertible into a firearm to which s.1 applies (s.1(1) of the 1982 Act). Whether an imitation firearm is readily convertible must be ascertained by reference to section 1(6) of the 1982 Act:- “For the purposes of this section an imitation firearm shall be regarded as readily convertible into a firearm to which s.1 of the 1968 Act applies if – (a) it can be so converted without any special skill on the part of the person converting it in the construction or adaptation of firearms of any description; and (b) the work involved in converting does not require equipment tools other than such as are in common use by persons carrying out works of construction and maintenance in their own homes.” 24. The 1982 Act also provides that it is a defence for an accused to show that he did not know and had no reason to suspect that an imitation firearm could be readily convertible into a firearm to which s.1 of the 1968 Act applies (s.1(5)). An imitation firearm is defined by reference to s.57(4) of the 1968 Act (s.1(3) of the 1982 Act):- “‘Imitation firearm’ means anything which has the appearance of being a firearm (other than such a weapon as is mentioned in s.5(1)(b) of this Act) whether or not it is capable of discharging any shot, bullet or other missile.” 25. The question then arises as to whether the addition of imitation firearms readily convertible into firearms to the scope of the 1968 Act changes the meaning of firearm in section 57(1) as interpreted by this Court in Freeman . Section 57(1) was unaltered. Is it to be construed as including a gun which could be easily turned into a lethal-barrelled weapon (as Sachs LJ thought in Freeman ) or is that section now to be interpreted in the light of the Firearms Act 1982? Strictly, the 1982 Act does not directly amend the Firearms Act 1968. But it seems to us that it is to be regarded as an Act which amends the 1968 Act by enlarging its reach to those imitation firearms which fall within the provisions of s.1(1) of the 1982 Act. 26. As we have recalled, s.57(1) of the 1968 Act was not amended. Where a statute is amended, those parts which were unamended are to be construed as meaning what they did before, unless the contrary intention appears (see Bennion on Statutory Interpretation 5 th Ed. section 78). But Bennion does suggest that where a later Act covers the same material as an earlier Act, the provisions of the later Act may be used to aid the construction of the earlier Act. Both Acts may be regarded as a single code. But whether those later provisions alter the meaning of the earlier, the test is whether Parliament intended to effect such an alteration (section 234). Bennion cites Blackburne J in R (ex p. Morgan Grenfell) v Special Commissioner [2003] 1 AC 563 at 592:- “We question why, in a code such as this, (tax legislation) which Parliament has from time to time amended, it should be impermissible when determining what…the true scope was of that provision, to consider what Parliament’s intention was by reference to other provisions of the code. We see no reason why, in a case such as this, the court’s gaze must be confined to legislation as it existed at some much earlier date. Each amendment accrues to a text conveying an evolving but at each stage ascertainable intent…” 27. We should apply that principle in the instant case. It is plain that Parliament intended to widen the scope of the meaning of firearm to include an imitation firearm falling within s.1(1) of the 1982 Act. But it is equally plain that Parliament intended only to widen that description in cases where the conversion could be achieved without any special skill and without the use of equipment or tools other than those in common use. By imposing what could loosely be described as safeguards, Parliament clearly expressed the intention to exclude from the application of the 1968 Act imitation firearms which could not be readily convertible into a firearm by equipment or tools which were not in common use. 28. Accordingly, the principle identified in Freeman is, under the current statutory scheme, no longer of any application. If the item can be easily adapted into a lethal weapon, to adopt Sachs LJ’s words (at 256), with the use of equipment described in s.1(6) of the 1982 Act, then it will, subject to the statutory defence, fall within the 1968 Act. But no conclusion can be reached as to whether an imitation firearm is readily convertible without proper consideration of s.1(6) and, if it is raised, the defence in s.1(5). Those sub-sections raise questions of fact which must be resolved. Whether an item falls within s.57(1) should no longer be answered by reference to Freeman or to Cafferata. Courts should look to the 1982 Act read with the 1968 Act. It would be absurd to allow the prosecution to sidestep the safeguards within the 1982 Act merely by construing firearm as meaning an item which could “easily” be converted into a lethal-barrelled weapon, capable of discharging a missile, in the application of the principle in Freeman . 29. But Mr Temple, on behalf of the prosecution, argued that issues of conversion and adaptation had no relevance in the instant case. The process of clamping, the use of the mallet and punch to drive the pellet home, were not acts of conversion or adaptation of the pistol. Despite the need to use those implements, the starting pistol was itself a lethal-barrelled weapon from which any shot, bullet or missile could be discharged. 30. It seems to us that reading the 1968 Act in the context of the Firearms Act 1982 also assists in understanding what is meant by conversion. The words in s.1(1)(b) “readily convertible into a firearm” are sufficiently broad to include the use of equipment or tools in conjunction with the use of an imitation firearm in a way which enables it to be used to discharge a missile as much as if those tools are used permanently to alter its construction. There is no reason to restrict the application of the Firearms Act 1982 to a conversion which permanently alters the construction of the imitation firearm in question. The 1982 Act contemplates converting an item from which a missile cannot be discharged into one from which a missile can be discharged. It matters not whether that process involves the permanent alteration of the construction of the firearm such as by drilling or by some other more temporary means. An item may be converted not merely by changing its capacity or by altering its construction, but also by adapting the way it can be used. 31. The starting pistol could only discharge a missile with the aid of other implements external to the weapon itself. It required the use of a vice to hold it, a hammer and a punch thin enough to be inserted into the off-centre hole running through the part of the barrel that was blocked, with a diameter of approximately 2 mm. The specially selected pellet could only be discharged if it was rammed home with a mallet and punch to ensure as tight a fit as possible. The use of those extraneous tools was a process of conversion. For the reasons we have given, after the 1982 Act came into force, s.57(1) refers to the capacity of the weapon without regard to its potential conversion, unless that conversion falls within the scope of the 1982 Act. We reject the prosecution contention that the use of the vice to clamp the pistol and the mallet and punch to ram the pellet home did not constitute conversion of the starting pistol. 32. Once we exclude consideration of any conversion, we must acknowledge that the starting pistol itself had no capacity to discharge any shot, bullet or other missile. A missile could only be discharged from the barrel in combination with other pieces of equipment, namely, the vice with which the pistol could be clamped, the punch and the mallet. There is no warrant for including within the definition in s.57(1) an item which can only discharge a missile in combination with other tools extraneous to that item. The opening words of s.57(1) refer to the capacity of a particular item and not its capacity in combination with other pieces of equipment 33. For those reasons we would conclude that the starting pistol fell outwith the definition in s.57(1). It was not a lethal-barrelled weapon from which any shot, bullet or other missile can be discharged. It was plainly an imitation firearm within the meaning of s.57(4). Whether it fell within the scope of the 1982 Act cannot be determined in this appeal. No facts were advanced to show that the starting pistol could be readily converted in accordance with the provisions of s.1(1)(b) and s1(6) of the 1982 Act. No opportunity was given for the accused to put forward the defence in s.1(5) of that Act. 34. The question then arises as to whether the starting pistol could be regarded as a component part of “such a lethal or prohibited weapon”. The Divisional Court in Cafferata would, no doubt, have concluded that it could be so regarded. That seems to us to be an impossible construction of s.57(1)(b). The definition of firearm cannot include a component part of a lethal-barrelled weapon of any description from which any shot, bullet or other missile can not be discharged. Any other construction would ignore the use of the word “such”. If the starting pistol does not fall within the definition of firearm within s.57(1), no part of it could do so. The Lord Justice-General in Kelly v McKinnon said that the proposition that all parts of the dummy which did not require to be bored should be regarded as parts of a lethal weapon was “untenable” (page 210). We agree. We do not think that Cafferata accurately expresses the law. 35. We can underline this conclusion by reference to the missing hammer. If the only reason that the starting pistol could not discharge a missile was the absence of the hammer, then it was plainly a firearm. Absent the hammer, a suitably sized “ball peen” hammer could be used to strike the firing pin. If, contrary to our conclusion, a missile could be discharged from the starting pistol if the hammer had been present, then its absence would merely lead to the conclusion that the remaining parts of the pistol were component parts of a lethal or prohibited weapon as defined. 36. Our conclusion obviates the need to decide whether the judge was correct to withdraw the matter from the jury. Since the case was never advanced by deploying the provisions of the 1982 Act and it was never alleged that the firearm was an imitation firearm readily convertible for the purposes of the 1982 Act, the correct conclusion is that the conviction should be quashed. Mr Temple rightly observed that the language of s.57(1) of the 1968 Act was widely drawn for what he described as “public policy reasons”. It is clearly highly undesirable that starting pistols such as these should be used by someone, such as this accused, on the run from the police. But such considerations should not override the true construction of the 1968 Act when read with the 1982 Act. Nor should we overlook provisions in the 1968 Act dealing with imitation firearms, as defined in s.57(4), without any need to have recourse to the 1982 Act. There are specific sections which deal with possession of imitation firearms, such as s.16A, s.17, and section 18. Section 17 would have been particularly apt in this case. It creates an offence to attempt to make any use whatever of an imitation firearm with the intent to resist or prevent lawful arrest or detention. It would have avoided the complicated issues to which this appeal gives rise. For the reasons we have given, the appeal is allowed and the conviction is quashed. 37. The appellant also seeks permission to appeal against a sentence of two years, passed consecutively to the five-year sentence in respect of the conviction for possession of a firearm. We give permission to appeal against that sentence. 38. The appellant was convicted of murder 31 years before he was sentenced. His tariff was one of 15 years. In the 1980s he progressed through the prison system and was placed, eventually, in an open prison. He walked out and was away for 12-18 months before being returned to closed conditions for 4 years. He was then allowed to return to an open prison but left and disappeared for some 9 years. He did not come to the attention of the police during that period of 9 years. 39. According to his landlady, he had lived quietly and had helped her positively, and others. 40. The judge was plainly right to have in mind that there were two occasions, of which this escape was the second, when the appellant walked out of prison. But he had suffered for that since he had returned to closed conditions and his parole would have been delayed. We think, now that the conviction for the firearms offence has been quashed, that a sentence of 2 years’ imprisonment for escape from lawful custody was manifestly excessive and a sentence of 18 months’ imprisonment should be substituted. As our judgment makes clear, the appellant was, perhaps, fortunate not to be charged with an offence of using an imitation firearm. But we think it wrong that any sentence should reflect that fact. In those circumstances, the appeal against sentence is allowed, the sentence of 2 years quashed, and substituted by a sentence of 18 months’ imprisonment.
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{"ConvCourtName": ["Snaresbrook Crown Court"], "ConvictPleaDate": ["2011-03-01"], "ConvictOffence": ["possession of a firearm"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Snaresbrook Crown Court"], "Sentence": ["a sentence of two years, passed consecutively to the five-year sentence"], "SentServe": ["Consecutively"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["N", "Expert report/testimony"], "DefEvidTypeTrial": ["Expert Evidence"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["suffered for that since he had returned to closed conditions and his parole would have been delayed."], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against conviction."], "AppealGround": ["a sentence of 2 years’ imprisonment for escape from lawful custody was manifestly excessive"], "SentGuideWhich": ["Firearms Act 1982", "Firearms Acts of 1937 and 1968", "s.12(1) of the Firearms Act 1920", "Firearms Act 1968"], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence", "the appeal is allowed and the conviction is quashed."], "ReasonQuashConv": ["Since the case was never advanced by deploying the provisions of the 1982 Act and it was never alleged that the firearm was an imitation firearm readily convertible for the purposes of the 1982 Act, the correct conclusion is that the conviction should be quashed."], "ReasonSentExcessNotLenient": ["We think, now that the conviction for the firearms offence has been quashed, that a sentence of 2 years’ imprisonment for escape from lawful custody was manifestly excessive"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
146
Neutral Citation Number: [2020] EWCA Crim 47 2018/04371/B1, 2019/00058/B1, 2019/01355/B1 & 2019/02698/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 24 th January 2020 B e f o r e: LORD JUSTICE SINGH MR JUSTICE SPENCER and HIS HONOUR JUDGE LEONARD QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) ____________________ R E G I N A - v - BIPIN KUMAR SOLANKI DEVENORAKUMAR PATEL ____________________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. __________________________ Mr G Cammerman QC appeared on behalf of the Appellant Bipin Kumar Solanki Mr P Raudnitz appeared on behalf of the Applicant Devenorakumar Patel Mr G Underhill and Mr J Patel appeared on behalf of the Crown ______________________ J U D G M E N T Friday 24 th January 2020 LORD JUSTICE SINGH: Introduction 1. On 26 th September 2018, following a trial in the Crown Court at Harrow before Mr Recorder Hall QC and a jury, the appellant, Bipin Kumar Solanki, was convicted unanimously of entering into or becoming concerned in a money laundering arrangement, contrary to section 328 of the Proceeds of Crime Act 2002 . 2. On 27 th September 2018 the applicant, Devenorakumar Patel, was convicted of the same offence by a majority of 10:2. 3. On 7 th December 2018, they were sentenced by Mr Recorder Hall. Solanki was sentenced to eight years' imprisonment and was disqualified from acting as a director for a period of ten years, pursuant to section 2 of the Company Directors Disqualification Act 1986 . Patel was sentenced to six years' imprisonment. 4. In the present proceedings, Solanki appeals against conviction, with the leave of the single judge. He is represented by Mr Cammerman QC (who was not trial counsel). Counsel has confirmed that ground 3, on which leave was refused by the single judge, is not renewed before the full court. In addition, the Registrar has referred his application for leave to appeal against sentence to the full court. 5. Patel applies for an extension of time of 265 days in which to apply for leave to appeal against conviction. That application has been referred by the Registrar to the full court. As we said at the hearing, which took place before us on 16 th January 2020, we grant leave to appeal out of time. This is because leave has already been granted by the single judge to Solanki. The issues are identical. There could be a sense of injustice if only one of those who were convicted together was allowed to appeal and the other was not. Patel is represented by Mr Raudnitz (who was trial counsel). Patel also renews his application for leave to appeal against sentence following refusal by the single judge. 6. We have also had the benefit of submissions from counsel for the Crown, Mr Underhill, who appeared with Mr Patel. The Factual Background 7. Laxcy London Limited ("Laxcy") was incorporated on 8 th December 2003. Solanki was the sole director, shareholder and secretary. 8. On 22 nd January 2009, he applied to register the company as a Money Service Business ("MSB"). The expected turnover was put at between £15,000 and £50,000, with sums transferred being less than £500 and none more than £10,000. 9. In or around September 2010, Laxcy changed its business address to Unit 7, City Plaza, Plaza Parade, Ealing Road, Wembley. It added a second branch in Green Street, East London at about the same time. 10. Laxcy used a larger MSB called Wall Street Forex Limited ("Wall Street") to process transfers. A larger MSB called Usman International Money Exchange Limited was used for further transfers. From records obtained from Wall Street, Laxcy started to use the services of Wall Street to send remittances abroad from 16 th February 2010. Wall Street processed in excess of £16 million in transfers between 16 th December 2010 and 22 nd July 2014 on behalf of Laxcy. 11. Patel was employed by Solanki to work at Laxcy and at an associated parcel business, Jumbo Parcel Service Limited. He was authorised by Solanki to make and receive payment, buying and selling US dollars and euros, all TT related, and other works related to Laxcy on his behalf and/or Laxcy's behalf. He was also authorised to carry money from the Wembley office to the Wall Street office. 12. To operate as an MSB it is necessary to be registered with Her Majesty's Revenue and Customs ("HMRC") and to abide by the Money Laundering Regulations. There are strict rules for businesses dealing with large amounts of cash, of which one is to carry out due diligence measures to check that customers are who they say they are. 13. On 21 st July 2014, Solanki was stopped by police whilst driving in Wembley. He told them that he had £35,000 in the car from the night's takings from the restaurant. Officers found a brown rucksack-type bag in the footwell behind the driver's seat. Inside it was one Post Office self-seal bag containing £33,000 cash, a quantity of correspondence and two plastic carrier bags. A white iPhone was found in the driver's door pocket. Solanki was found in possession of a Samsung Galaxy S IV phone and £2,730 in cash. He was arrested. 14. Police officers attended Solanki's home address in Wembley. As they waited, Patel arrived in a taxi. He was carrying a large, empty plastic self-seal freezer bag. The prosecution said that that was to be used to collect and transport cash. Patel said that he had been "called to the address by Bipin", whom he described as both "boss" and "friend". He said that he helped Bipin with three businesses – money transfer, parcel business and a restaurant. He often collected parcels from the address, but he was not employed to do so. He did it as a favour, but did not receive payment. He was arrested. A mobile phone in his possession was seized. 15. A search of the property revealed under the sofa in the living room a carrier bag containing two packages wrapped in Jumbo Parcel Services tape. A total of £32,191 in cash was found within. An envelope with writing on it "Not Used IDs Leicester" containing copies of 27 Pakistani passports in different identities and three bank cards were also seized. 16. A search of a garage at another of Solanki's properties in Wembley revealed a black plastic carrier bag within which there was a further blue carrier bag containing a red cash transit bag marked £30; it contained £30,000 in cash. A yellow bag was found to contain Indian passports, bank documents and a utility bill. The various documents were in different names. Following a check by an immigration officer, the passports or part-passports were all found to be false documents or forgeries. 17. Enquiries made with Lloyds Bank and the Halifax regarding the bank account documentation revealed that staff at both banks had been complicit in allowing fourteen accounts to be opened in the various names. 18. The premises of the Laxcy East London branch were searched. The police seized cash, amongst other things. 19. The Laxcy Wembley branch was also searched. The police found money transfer receipts where the alleged customer had confirmed that they did not undertake the transaction, or denied that it was their signature on the receipt; or where the signature on the transfer receipt and ID document associated with it clearly did not match. 20. A forensic examination of a number of items revealed the presence of Patel's fingerprints. 21. The indictment contained a single count charged under section 328(1) of the 2002 Act , the particulars of which were: "Bipin Kumar Solanki and Devenorakumar Patel together with others unknown, between the 16 th day of February 2010 and the 22 nd day of July 2014, entered into or became concerned in an arrangement, namely the use of Laxcy London Limited to receive and transmit criminal property, namely money, and, creating false money transfer orders, invoices and accounting records, to disguise the source of those funds, knowing or suspecting that the arrangement would facilitate the acquisition, retention, use or control of criminal property, namely money, by or on behalf of another person." 22. It was the prosecution's case that Laxcy was used to launder "dirty" money. There was no direct evidence that the money was criminal property. The prosecution relied on circumstantial evidence. On the best figures available, during one period between 1 st May and 22 nd June 2014 it was responsible for the transfer of in excess of £3.3 million. The overwhelming majority of this was "dirty" in the sense that it had not been obtained from legitimate sources. 23. The prosecution said that Laxcy obtained copies of identification documents from genuine customers, which would then be kept electronically and used to create false money transfer records and to open bank accounts, which could then be used to receive funds. 24. Messages on mobile phones seized from Solanki and Patel had the hallmarks of a type of money laundering known as HAWALA (a form of money transfer system where actual cash is not moved between locations; instead, the value of money is transferred). These messages contained a reference to a "token" and a sum of money; they were used to assist in the collection and handover of street cash to those who would be engaged in the money laundering arrangements. 25. At trial the prosecution relied on the following items of evidence to support its case that the money was criminal property: (1) The way in which the money was handled by the defendants; (2) The creation of false customer transfer records; and (3) The use of false passports to open associated bank accounts. 26. The prosecution contended that a large proportion, if not almost all of the money, was the proceeds of crime for the following reasons: (1) The huge volume of transfers being processed in a short space of time and the high number of daily transfers; (2) The creation of false customer records and transfer receipts; (3) The lack of proper secure collection and delivery of cash; (4) The circumstances of the seizure of £33,000 and £32,191 in cash from Solanki and the finding of £30,000 in cash at a garage owned by him; and (5) The messages on the mobile phones of Solanki and Patel with "token" references. 27. Solanki was of previous good character. He was interviewed on three occasions. He answered "no comment" to all questions. In his evidence at the trial, he denied any wrongdoing. 28. Patel was also of previous good character. He was interviewed on three occasions. On the first, he said that he had been moving parcels for Solanki from Solanki's home to Solanki's workplace for about three months prior to his arrest. In the second interview he was asked about the envelope with "Not Used IDs Leicester" on it. He said "I've seen that letter. I've written it myself". Solanki, he said, had a branch in Leicester. Some documents were sent to him in error. He also confirmed that he had been to Solanki's garage to obtain parcel bags. 29. In his third interview, Patel served a prepared statement and then answered "no comment" to all questions. In brief, he denied being in possession of any false documents and continued to deny the allegation of money laundering. 30. Patel did not give evidence at the trial. He relied on his accounts in interview. 31. During the course of the trial, the Recorder was called upon to make two relevant rulings. The first arose out of a jury note which was sent to the Recorder on the afternoon of 24 th September 2018, at a time when the jury were in deliberation. The jury asked the question: "In your definition of criminal property within the written legal directions, can criminal property come from tax evasion or tax avoidance?" At trial the jury had heard no evidence about the use of the MSB to evade tax. It was never put to Solanki that the property with which he was dealing might have been chargeable to tax. No reference was made to tax in any of the closing speeches or in the summing-up. 32. On the basis that there was no evidence led by the prosecution, directly or indirectly, to link the monies allegedly laundered to tax evasion or tax avoidance, counsel then appearing for Solanki suggested the following direction be given to the jury: "Tax avoidance is not a crime, whereas tax evasion is a criminal offence. In this case there is no evidence to link the alleged monies to tax evasion, which may in some cases result in criminal property. It is important the jury do not speculate in their deliberations as to how the monies were created." 33. In the event, after hearing representations, the Recorder directed the jury in the following way: "As I have already directed you, criminal property is property which is the benefit of another person's crime. Such a crime could be fraud, including tax fraud committed by someone else – in other words, the benefit of any crime committed by a person other than [Laxcy] or one of the defendants personally. There is no direct evidence of any particular crime, including tax fraud, being committed. Question 2 of your Route to Verdict depends upon whether there is an irresistible inference, so that you are sure, that some of the monies were the benefit of another person's crime, whether tax fraud or another crime." 34. The second ruling arose out of an argument advanced on behalf of the appellants: that it was appropriate to direct the jury in accordance with R v Brown (1984) 79 Cr App R 115 , because of how the prosecution had presented and closed its case. The appellants said that the prosecution had presented its case on the basis that there was at least one if not more sources sending monies through Laxcy to launder the profits of criminal property. It was argued that it was necessary to tell the jury that in order to convict they must be agreed not only as to the guilt of the accused, but also as to the basis on which he was guilty. The transactions conducted through Laxcy were, said the appellant, equivalent to the false statement referred to in Brown , and, accordingly, it was essential that the jury find the same transaction or monies were the result of criminal property. The Recorder rejected that submission. 35. In the grounds of appeal on which leave has been granted, Mr Cammerman has advanced two points: first, that the Recorder wrongly directed the jury in response to their question about tax; and secondly, that the Recorder wrongly failed to give a direction in accordance with Brown . 36. In his late application for leave to appeal against conviction, which we have granted, Patel relies on the same two grounds. 37. We have also had the benefit of a Respondent's Notice. In their response to the first ground of appeal, the Crown submit that the direction was correct and appropriate to the circumstances of this case, and that it was not necessary to define the ingredients of the offence of cheat for the following reasons: (1) The prosecution case was that Solanki was concerned in an arrangement to launder criminal property by or on behalf of others through the use of his business to receive and transmit their money, rather than to launder the proceeds of his own criminal conduct; (2) The prosecution did not place any evidence of the underlying criminality before the jury and could not say of which crime or crimes the money was the proceeds; (3) The issue for the jury was whether they were sure that the money was the proceeds of crime(s). There was no need for them to come to any conclusion as to what particular crime(s) that was; (4) In the circumstances of this case it would have been a misdirection for the jury to be told that the underlying crime could not be a crime of fraud, including tax fraud; (5) The case of R v Anwar [2013] EWCA Crim 1865 is distinguishable. The Crown also submit that this was not one of those cases in which a Brown direction was required. The First Ground of Appeal against Conviction 38. As we have said, the only count in the indictment in this case alleged that the two appellants, together with others unknown, had entered into or become concerned in a money laundering arrangement, contrary to section 328(1) of the 2002 Act . 39. We also note the definition of "criminal property" in section 340: "(3) Property is criminal property if – (a) it constitutes a person's benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and (b) the alleged offender knows or suspects that it constitutes or represents such a benefit. (4) It is immaterial – (a) who carries out the conduct; (b) who benefits from it; (c) whether the conduct occurred before or after the passing of this Act ." 40. In R v Anwoir and Others [2008] EWCA Crim 1354 ; [2008] 2 Cr App R 36 , this court reviewed earlier authorities and concluded that there are two ways in which the Crown can prove that property is derived from crime: first, that it derived from conduct of a specific kind or kinds and that conduct of that kind or those kinds was unlawful; or, secondly, the evidence of the circumstances in which the property was handled were such as to give rise to the irresistible inference that it could only be derived from crime: see [21] in the judgment of the court which was delivered by Latham LJ. 41. The first ground of appeal relates to the way in which the Recorder answered a question raised in a jury note. The Recorder explained the approach he would take in a ruling he gave on 25 th September 2018. He found the decision of the court in Anwar to be distinguishable. He did so on the basis that, upon analysis, Anwar concerned a section 327/329 offence and that it was clear from that authority "that the appellant was charged with laundering his own proceeds". The Recorder said that that was very different from the present case "in which there is no evidence at all that has been put before the jury of the underlying criminality". The Recorder considered that in that situation the jury would not be assisted by a direction about the ingredients of any offence. It would not only be unnecessary, but it would be undesirable and would provide a distraction for the jury to be directed about the ingredients of tax evasion merely because they had raised it. 42. In Anwar , the judgment of the court was given by Davis LJ. It was noted that none of the three counts on the indictment in that case, which alleged possession of criminal property, contrary to section 329(1)(c), and disguising or converting criminal property, contrary to section 327(1) (b) and (c) of the 2002 Act , included any specific allegations as to the precise nature or type of the criminal conduct in question. In that case the prosecution made clear at trial that they did not allege any particular kind of criminal conduct. In a nutshell, their case was that the circumstances were such that it was an irresistible inference that the cash represented, and the acquisition of cars derived from, the proceeds of unspecified crime. In that case the jury asked the following question: "Can tax evasion in the UK constitute criminal conduct for the purposes of this case?" 43. Having discussed the matter with counsel, the trial judge, so far as material, directed the jury as follows: "To answer your question shortly, members of the jury, for the purposes of this case can tax evasion constitute criminal conduct? Well, tax evasion is a criminal offence in the United Kingdom, so that that is the long and short of it." 44. This court in Anwar referred to its earlier decisions in R v Gabriel [2006] EWCA Crim 229 ; [2007] 2 Cr App R 11 , and R v Yip [2010] EWCA Crim 1381 . The relevant part of the reasoning of the court appears at [35] to [45]. This court concluded that the jury had been materially misdirected and that the conviction was unsafe. At [41] Davis LJ said that the judge had had two choices. The first (and in the court's view the correct) was to instruct the jury that tax evasion had never been part of the prosecution, that it had never been the subject of any evidence, and that the jury should simply not speculate any further on that matter. The second possible approach was to give the jury some legal instruction as to the elements of "tax evasion", perhaps after ascertaining just what the jury may have had in mind: see [42]. 45. At [43] Davis LJ said that, in the result, the judge had adopted neither course in answering the jury note. She simply summarised the respective cases and then gave the answer which we have quoted earlier. Therefore, the jury were never told of the legal elements of the offence; nor were they ever reminded of the total lack of evidence on the point. 46. In the present case, counsel for the appellants submit that there is no material distinction which can be drawn from Anwar . We do not accept those submissions. Counsel for the appellants emphasised what was said by Davis LJ in Anwar at [8] and submit that the material facts of that case are indistinguishable from the present. Davis LJ said: "8. In opening the case at trial the prosecution made clear – and this, indeed, accorded with the indictment – that it was not alleging any particular kind of criminal conduct. Its case was, in a nutshell, that the circumstances were such that it was an irresistible inference that the cash represented, and the acquisition of the cars derived from, the proceeds of unspecified crime. …" 47. However, in our view, it is important to place what was said in Anwar in its particular factual context. At [10] of the judgment, Davis LJ noted that oral evidence had been given at the trial by both the appellant in that case and also by his sister. In his evidence the appellant had said that he had funded the purchase of the car in question in part from the sale of bridal gold jewellery originating in Pakistan, which had generated around £14,850. At [12] Davis LJ noted that, during the course of the appellant's evidence, the jury had put in a note asking the question whether the gold imported had been declared to HMRC and what was the duty/VAT paid. The judge's response to that question was to the effect that the jury simply had to decide the case on the evidence as presented to them. In the course of her summing-up, the judge gave the standard direction on such matters: that the jury would simply have to decide the case on the evidence; that there would be no more evidence; and that they should not speculate about what other evidence they might have heard. 48. It is clear from a reading of the judgment of Davis LJ as a whole that had matters been left there, this court would not have considered that there was any difficulty with the way in which the trial had been conducted. As he observed at [17], the problem arose from a later jury note which was sent in two hours after they had retired to deliberate. That was the note which asked the question about whether tax evasion in the UK can constitute criminal conduct for the purposes of that case. 49. In our view, it is important to note that Davis LJ considered that the case before the court in Anwar was materially indistinguishable from the case of Yip . That was a case, as Davis LJ himself recorded at [32], where the Crown had not sought to allege a specific kind of conduct by the defendant that was unlawful "other than by cheating the Revenue". In that case it was, therefore, incumbent on the trial judge to instruct the jury at least as to the essential elements of the offence of cheating the Revenue. 50. In our view, the reason why Anwar was considered to be materially indistinguishable from Yip is because there had been raised during the course of the evidence the possibility in the jury's mind that the gold originating in Pakistan might not have bene declared to HMRC and there might not have been the proper duty or VAT paid on it. Similar facts are quite simply absent from the present case. In our view, the present case is distinguishable from that of Yip and, therefore, from that of Anwar . The Second Ground of Appeal against Conviction 51. The second ground of appeal against conviction arises from a ruling which the Recorder made, again on 25 th September 2018, on an application made to him on the day after the jury had retired to consider their verdicts. The application was that he should give the jury a direction in accordance with Brown . The Recorder said that the scope for a Brown direction is limited. It arises where the indictment alleges through its particulars that the offence was committed in more than one way: for example, where full particulars are given as to why a defendant is grossly negligent in a case of gross negligence manslaughter, or where specific fraudulent statements are alleged in the indictment. He said that in some cases it will be necessary to direct the jury that, before they can convict, they must be unanimous, leaving aside issues of majority verdicts, on one or more particulars. He continued: "By contrast, it is not the case that the jury must be unanimous about which piece of evidence they accept, so long as they are unanimous about the essential elements of the offence." The Recorder continued that, in the present case: "… the essential elements of the offence relevant to this issue are that the property was criminal property. There are no particulars within the indictment specifying what that criminal property was. If each member of the jury is sure that there was criminal property, that is sufficient …" 52. The Recorder said that, even if he had been wrong about that, it was clear that the need to give a Brown direction is rare. In the circumstances of this case he concluded that a Brown direction was not required. He also observed that the possibility of a Brown direction was raised but not pursued by counsel for Solanki when he first addressed him on possible legal directions. The matter was not raised after the prosecution closing speech, nor after the Recorder had concluded his summing-up and invited counsel to indicate, before the jury retired, whether there were any other matters they wished to raise. Nor was it raised either when the Recorder had circulated in draft the first part of his summing-up, before counsel's closing speeches, nor following the second part of his summing-up after those speeches. 53. It is important to appreciate that what this court said in Brown , at page 119, has to be placed in its factual context. In Brown the appellant was charged with fraudulently inducing investments, contrary to section 13(1) (a) of the Prevention of Fraud (Investments) Act 1958 . The particulars alleged were that he had fraudulently induced four persons to enter into agreements to acquire shares in a company by making misleading statements. At the trial, the jury asked the judge the following question: "If the individual members of the jury find him guilty of different parts of the count, is he guilty of the whole count, and is the verdict of guilty unanimous?" The trial judge directed the jury that it was sufficient if all were agreed that there was a dishonest inducement, even if they differed as to the statement in the particulars which they relied upon as the inducement. The appellant appealed on the ground that the jury had been misdirected. The appeal was allowed and his conviction was quashed. 54. In giving the judgment of the court, at page 119, Eveleigh LJ said: "In a case such as that with which we are now dealing, the following principles apply: 1. Each ingredient of the offence must be proved to the satisfaction of each and every member of the jury (subject to the majority direction). 2. However, where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so, then it is enough to establish the ingredient that any one of them is proved; but (because of the first principle above) any such matter must be proved to the satisfaction of the whole jury. The jury should be directed accordingly, and it should be made clear to them as well that they should all be satisfied that the statement upon which they are agreed was an inducement as alleged." 55. Brown was approved by the House of Lords in R v Chargot Ltd [2008] UKHL 73 ; [2009] 2 All ER 645 , at [26] in the speech of Lord Hope of Craighead. We note in passing that, in that passage, Lord Hope stressed that, so long as the jury are agreed on the essential elements alleged in the indictment, "they do not need to be agreed on all the details of the evidence". 56. The position was recently explained by this court in R v Phillips [2019] EWCA Crim 577 , in which the judgment was given by Hamblen LJ (as he then was). At [69] he said: "… The situation dealt with in Brown was one where each count in the indictment contained particulars of a number of different statements relied upon by the prosecution as constituting fraudulent inducements." At [70] Hamblen LJ said that the court agreed with the prosecution that that was very different from the situation in that case. In that case "there were no such multiple particulars, any one of which could form the basis of convictions". At [74] he said: "This is not a case in which two distinct incidents were being alleged, either of which might constitute the offence charged or where there were different offences." Finally, at [75], Hamblen LJ recalled that this court stated in R v Mitchell 26 HLR 394 that a Brown direction: "… will be necessary only in comparatively rare cases. In the great majority of cases, particularly cases alleging dishonesty and cases where the allegations stand or fall together, such a direction will not be necessary. It is of the first importance that the directions for juries should not be overburdened with unnecessary warnings and directions which serve only to confuse them." In the circumstances of that case, the court said that no Brown direction was required. 57. We have reached the conclusion that none was required or appropriate in the present case either. We recall, first, the terms of the particulars of offence in the only count on the indictment, which we have set out earlier. The jury had to be sure of each of the elements in that count. We have been shown the written legal directions which the Recorder gave to the jury, including his direction on the elements of the offence which had to be proved. No complaint is made on this appeal about that legal direction. In his direction, the Recorder included the following: "… One way of proving that money comes from crime is to prove a specific offence was committed; for example, to show that a particular person had carried out a drug deal, had obtained a particular quantity of cash in exchange, and then given it to Laxcy. That is not always possible, as you may think that criminals will take steps to keep the person committing the crime away from the money chain, so even if the police become aware that large sums of money are being transferred, it will not be apparent how that money was obtained. So the law also allows you to draw inferences. If the evidence that the circumstances in which the property was handled were such as to give rise to an irresistible inference that it could only have been derived from crime, then you could also be sure that the money was the benefit from another person's offending …" 58. We have also been shown the written Route to Verdict, which the Recorder provided to the jury. Question 2 read: "Was any of this money criminal property?" It was made clear that if the jury were not sure about that, their verdict had to be not guilty. 59. In our view, it is clear from the way in which the Recorder directed the jury and from the issues which were live ones at the trial that this was not an indictment which required the jury to be satisfied that any particular money was criminal property. Indeed, as the prosecution have submitted in the Respondent's Notice, that would have been to drive a coach and horses through the essential nature of the case advanced by them at trial. It was precisely because they could not prove that any particular item of money was derived from crime that they relied on the second limb of Anwoir , namely that there was an irresistible inference that it could only have been derived from crime. 60. We also note that, in accordance with good modern practice (in appropriate cases), the Recorder gave a split summing-up. He gave his written directions on the law before closing speeches and he then summarised the evidence after those speeches. In doing so, he gave counsel ample opportunity to comment on the draft legal directions. Again in accordance with good practice, he asked counsel if there was anything else they wished to raise before he finished his summing-up and the jury retired to deliberate. Counsel then appearing did not take any of those opportunities to suggest that there was any need for a Brown direction. Indeed, this was not done until after the jury had already retired to consider their verdict. 61. In the circumstances of this case, we are satisfied that there was no need for a Brown direction to be given. Accordingly, the appeals against conviction are dismissed. The Applications for Leave to Appeal against Sentence 62. In his sentencing remarks, the Recorder said that this was a professional, multi-million pound money laundering operation co-ordinated by Solanki, who was its money laundering reporting officer. 63. The use of false and hijacked identities to pass off criminal property as legitimate was systematic and carried out over a long period of time. The scheme had an international reach with a criminal flow of monies to Dubai and on to India. It was a sophisticated offence. 64. The Recorder was satisfied that each defendant knew – and not merely suspected – that they were dealing with criminal property. 65. The Recorder took the view that Solanki had performed a leading role and had abused his position as the money laundering reporting officer. 66. The Recorder also took the view that Patel had a leading role, albeit that it was subordinate to that of Solanki. He said that the relevant period for any calculation of quantum for the purpose of sentencing should be limited to the period from 8 th October 2013 to 21 st July 2014, although he would sentence Patel on the basis that his involvement had commenced only in February 2014. 67. The prosecution submitted that the Recorder could safely conclude that the clear majority of the wholesale trade conducted through Laxcy during the relevant period was "dirty" money. The Recorder was satisfied that at least £5 million during the period from October 2013 to July 2014 was criminal property. However, taking all matters into account, he said that he would sentence on a figure of no more than £3 million in Solanki's case; whilst in Patel's case that figure would be £1.8 million, for reasons which we shall explain. 68. The Recorder referred to the definitive guideline issued by the Sentencing Council on fraud, bribery and money laundering offences, with effect from October 2014. He placed Solanki in category 2 for harm, whilst Patel was placed in category 3. The culpability of each was assessed to fall within category A because, as we have said, the Recorder assessed both as having played a leading role, although that of Patel was subordinate to that of Solanki. The Recorder observed that neither had any previous convictions and that in each case there had been a lapse of time since their arrests, which had not been their fault. Each had various medical issues and family responsibilities. 69. In the application brought on behalf of Solanki, it is said that the sentence was passed on the wrong evidential basis; and, in any event, it was manifestly excessive. 70. In the application brought on behalf of Patel, it is submitted that the sentence was manifestly excessive for two reasons: first, that the Recorder erred in determining that the Patel fell within culpability category A; and secondly, that the Recorder placed insufficient weight on his personal mitigation. 71. Following the convictions, the case was originally listed for sentence on 2 nd November 2018. On that date there was extensive legal argument concerning the quantum of the laundering which was applicable as the basis of sentence. 72. On 3 rd November 2018, the Recorder circulated his ruling that the exhibits to which objection was taken on the part of the defence, and which the Crown wished to introduce, would be admitted. The final sentencing hearing was then fixed for 7 th December 2018, when further brief legal argument was heard and the sentences were passed. 73. On behalf of Patel, it is observed before us that, although there was an extensive argument before the Recorder as to which category in the definitive guideline was applicable, ultimately the court sentenced on the basis that the offending fell within category 3 harm. Accordingly, there is no appeal by Patel based upon quantum or the categorisation of harm. The only grounds of appeal, as we have said, concerned the role which he played (and therefore the categorisation for the purpose of culpability) and his personal mitigation. 74. Nevertheless, at paragraph 14 of the skeleton argument in relation to sentence, on behalf of Patel it is said that, having seen Solanki's full submissions on quantum, he supports that argument in general terms. If Solanki is successful in his argument, then that will also have an effect upon Patel. He submits in that case that he should have been sentenced on the basis that the quantum should be reduced from £1.8 million to £1.25 million. That reduction would not change the harm category, but it would bring it down within the spectrum in category 3. 75. In the skeleton argument relating to sentence on behalf of Solanki, there are two grounds of appeal raised. First, it is said that the starting quantum of £3 million was both wrong in fact and in principle; that it included evidence which had been excluded before the trial by His Honour Judge Cole on 10 th August 2018; and that the quantum ought to have been restricted to the evidence adduced before the jury and should therefore have been limited to around £1.25 million (that being 50 per cent of £2.5 million, about which it is said evidence was placed before the jury). 76. Secondly, it is submitted that even if the correct quantum was £3 million, a sentence of eight years' imprisonment was manifestly excessive, having regard to the guideline. 77. As the guideline states, harm is initially assessed by reference to the value of the money laundered. There are six categories set out by reference to the quantum. Category 2 concerns the range £2 million to £10 million, with a starting point based on £5 million. Category 3 is a range of £500,000 to £2 million, with a starting point based on £1 million. To complete the assessment of harm, the court should then take into account the level of harm associated with the underlying offence to determine whether it warrants upward adjustment. 78. Culpability is categorised by reference to three categories: A, B and C, where A is high culpability; B is medium; and C is lesser culpability. 79. The suggested sentence for a category 2A case is a starting point of eight years' custody, with a suggested range of six to nine years' custody. 80. The suggested sentence for a category 3A case is a starting point of seven years' custody, with a range of five to eight years' custody. 81. As we have said, on behalf of Solanki it is submitted that the Recorder passed sentence on the wrong evidential basis. It is said that he should have taken a figure of around £1.25 million. That is arrived at by dividing £2.5 million, about which the jury heard at trial, by 50 per cent. 82. In any event, it is submitted that the sentence was manifestly excessive, having regard to the mitigation that there was: for example, good character; delay; poor health; and significant family hardship. 83. At paragraph 15 of the skeleton argument on sentence, Solanki refers to the decision of this court in R v Cairns and Others [2013] EWCA Crim 467 , at [8] to [10] in the judgment given by Leveson LJ. 84. It is submitted that a Newton hearing would not have been appropriate in this case after a trial. It is submitted that the Recorder should have sentenced on the basis of the evidence that was adduced by the Crown before the jury and should not have taken into account evidence which had been excluded from their consideration. It is further submitted that the Recorder, in effect, reversed the earlier decision by Judge Cole, given prior to the trial, to exclude certain evidence under section 78 of the Police and Criminal Evidence Act 1984 ("PACE"). That was the evidence of exhibits JDY/2-5. 85. We do not accept those submissions. In order properly to understand the context of the first ground of appeal against sentence, it is important to appreciate that there were two rulings made. The first was given on 10 th August 2018 by Judge Cole. The second ruling was given by Mr Recorder Hall on 2 nd November 2018, the reasons for which were given in writing on the following day. 86. At the hearing on 10 th August 2018, Judge Cole was asked by the defence to stay the prosecution on the ground that a fair trial would not be possible in the light of the prosecution's failure to make full disclosure. 87. Earlier in the proceedings, the judge had refused the Crown's application to adjourn the trial. He had noted that there had already been one trial date moved. By the time of the hearing before Judge Cole on 10 th August, the Crown said that they were now trial ready, subject to one important concession which they were prepared to make in favour of the defence. They said that full analysis had not been undertaken of three computer downloads, which were exhibits JDY/2-5. However, the Crown indicated that they would be hard pressed to resist an order ruling out the admission of those pieces of evidence under section 78 of PACE. This would have the effect of dramatically shrinking the potential quantum of the fraud alleged, from £16 million down to £3 million. 88. Judge Cole accepted the Crown's position. He refused the defence application to stay the prosecution and ruled that a fair trial was perfectly possible. He also noted that Solanki was the owner of the business and was better placed than anyone to know what assisted him and his employee within the computer material which the Crown were prepared to abandon. The judge therefore ruled that exhibits JDY/2-5 were inadmissible because of the late service by the prosecution of the material. He did not encourage the wasting of the court's time by lengthy relitigation of these issues before the trial judge but gave liberty to re-apply before the trial judge. That is important, in our view, in the light of what subsequently happened after conviction before Mr Recorder Hall. 89. On 2 nd November 2018, the Recorder made a ruling admitting into evidence two spreadsheets extracted from exhibits RDY/2 and 5. The Recorder was of the view that matters had developed since the hearing before Judge Cole in August. In particular, he observed that during the trial it was Solanki himself who had introduced his own spreadsheets by way of defence evidence. These spreadsheets covered roughly a seven week period between May and June 2014 and were extracted from exhibits RDY/2 and 5. 90. The prosecution now wished to rely on the wholesale figures taken from the two spreadsheets, for the period October 2013 to July 2014. The Recorder noted that, although the indictment period ran from 2010, the prosecution had limited their analysis to the period starting in October 2013. The wholesale figure during that period was said to be £10 million. The Crown asked the court to sentence on the basis that 50 per cent of that could reliably be proven to be the volume of criminal money passing through Laxcy – in other words, £5 million. 91. In his written ruling of 3 rd November 2018, the Recorder admitted the two spreadsheets and refused to exclude that evidence under section 78 of PACE. He did not consider that admitting the evidence amounted to an abuse of process, because circumstances had changed since the ruling of Judge Cole in August, and also because he proposed to avoid any possibility of unfairness by capping the maximum quantum at £3 million. That, of course, was the figure mentioned before Judge Cole in August. That was generous to the defence because otherwise the schedules might have suggested that the actual amount laundered was £5 million. 92. In his written reasons, Mr Recorder Hall said that it was open to the court to re-admit the rest of the spreadsheets if: (a) it is necessary for the purpose of determining the quantum of the fraud for the purpose of sentence; (b) the defence had sufficient opportunity to deal with the reintroduced evidence; and (c) the effect of doing so was not to contradict the basis upon which Judge Cole had excluded the evidence, so as to create a sense of injustice. 93. The Recorder concluded that it was necessary to re-admit the evidence in order to arrive at a fair and accurate basis for sentence. He again observed that it was Solanki himself who had adduced parts of the spreadsheets at this trial and therefore it was necessary to permit the prosecution to adduce the rest, subject to ensuring fairness. 94. The Recorder said that it was common ground that in principle a court can admit, for the purpose of sentencing, evidence that was not heard by the jury, at least for the purposes of a Newton hearing: see R v Finch (1993) 14 Cr App R(S) 226. The Recorder said that, although the course embarked upon in the present case had not been described as a Newton hearing, in substance there was no material difference. This was because he proposed to give the defence an opportunity to challenge or rebut the evidence adduced by the prosecution. He adjourned the hearing to permit Solanki an opportunity to do so. He extended the same opportunity to Patel if he so chose. 95. In addition, the Recorder said that it was important that both should only be sentenced for the offence of which they had been convicted by the jury. Judge Cole had permitted the prosecution to proceed on the basis that a £16 million fraud was to become a £3 million fraud. It followed that the Recorder would cap the maximum at £3 million. 95. When passing sentence on 7 th December 2019, the Recorder returned to the issue of quantum at pages 6-9 of his sentencing remarks. He referred to his earlier ruling of November and the fact that he had adjourned the hearing to enable Solanki and Patel to consider whether they wished to call evidence in rebuttal, but that neither had sought to do so. 96. The Recorder also accepted that in the case of Patel the relevant period should be confined to February to July 2014. In the case of Solanki, he sentenced only in relation to the period October 2013 to July 2014. He was prepared to discount the total amount of wholesale business in that period of £10 million by 50 per cent, but on the basis that he was sure that at least £5 million was criminal property: see page 7F of the transcript of the sentencing remarks. 97. However, for the reasons he had set out in his November ruling, the Recorder said that it would be wrong to sentence Solanki for any more than £3 million: see page 8D. He did not agree that the observations of Judge Cole in August had any greater significance than that there would be a £3 million cap. He had to sentence on the basis of the evidence which he had heard, rather than on the factual basis upon which the abuse and adjournment arguments were presented before Judge Cole. 98. The Recorder then turned to the issue of quantum in Patel's case. He said that that should begin on 3 rd February 2014. He found the wholesale amount in that period was £6.5 million. Half of that figure would be £3.25 million, but it would be wrong to take a quantum of more than £3 million. He did not agree that a 50 per cent discount should then be applied to the figure of £3 million, because that figure was the ceiling to the quantum of criminal property. There was no need to apply a further discount to that figure in order to exclude legitimate property. However, the Recorder had not lost sight of the fact that Patel was involved for a shorter period than Solanki. He proposed to deal with that by applying a 40 per cent discount (that is four out of the total ten months of the quantum period). That is how the Recorder arrived at a figure of £1.8 million. 99. In our judgment, the Recorder was well entitled to take the approach to quantum which he did and which he carefully explained, both in his ruling in November and in his sentencing remarks in December 2018. That did not in any way contradict anything which had been decided by Judge Cole. As the Recorder said, events had moved on, in particular because Solanki had himself adduced part of the relevant spreadsheets at the trial. Against that background, the Recorder was entitled to permit the prosecution to adduce other parts of that evidence. 100. Further, the Recorder gave ample opportunity to each of the applicants to contest the evidence which the prosecution now wished to adduce. He adjourned the hearing for that purpose. This ensured fairness. 101. Finally, the Recorder imposed a cap of £3 million, when the evidence before him might have justified his going above that figure. That was sufficient to allay any sense of injustice because it might have been perceived that he was going behind the ruling of Judge Cole in August. He was not. 102. As the Recorder carefully explained, he was not then required to discount that figure (or indeed any lower figure of £2.5 million, as was submitted before us) by 50 per cent to arrive at a figure of £1.25 million. 103. In our judgment, there was no inconsistency between his approach and the verdicts of the jury, as we have said earlier in dismissing the appeals against conviction. The precise quantum was not an issue that the jury were required to decide at the trial. It was no part of the count on the indictment. 104. Nor do we accept the ground advanced on behalf of Solanki, that the Recorder gave insufficient weight to mitigation. In the circumstances of this case, which was a sophisticated, multi-million pound, cross-border money laundering operation, and where Solanki was the ringleader and furthermore had statutory responsibilities, the Recorder was well entitled to impose a sentence of eight years' imprisonment. That sentence was not, arguably, manifestly excessive. 105. We turn to Patel's renewed application for leave to appeal against sentence. We have seen the detailed reasons given by the single judge when refusing leave on the papers. We respectfully agree with those reasons. We do not accept the submissions made on behalf of Patel before us. 106. In his sentencing remarks, at pages 3-4, the Recorder said that he would sentence Patel on the basis that he was involved in the offending in the period from February to July 2014. Having regard to the definition of a "leading role" in the guideline, the Recorder found that this was sophisticated offending and that it was committed over a sustained period of time. Patel had been part of a group activity. At pages 4-5, he then returned to the question whether Patel himself had performed a leading role. He was sure that he had, although it was not the leading role. He said that Patel was highly trusted. He had handled parcels of money and collected and transferred them. Secondly, it was his handwriting which was on an envelope stating "Not Used IDs Leicester". He did not accept that Patel was simply writing something which he did not understand. This was Patel working out which IDs were of use to the scheme. Thirdly, the Recorder said that the texts on the mobile phone which Patel had used referred to hundreds of thousands of US dollars. These were clearly related to the machinery of the fraud. The Recorder inferred that Patel was aware of the machinery. Patel had handled false documents. The Recorder rejected the account, as he was sure the jury had as well, that Patel's fingerprints were on false documents only because he had tidied the garage. He noted Patel's qualifications and his previous employment in banking. He was satisfied that Patel was not a mere "foot soldier" akin to other employees. It was obvious to the Recorder that he had sought in interview to minimise his role. He told the police, falsely, that he was essentially someone who simply carried the parcels for Solanki. 107. The Recorder also took into account, as supporting evidence, what Solanki had said in his evidence at trial. He said that he, Patel and another knew all the "nitty gritty". The Recorder found that evidence to be striking. Although Solanki must have been disbelieved by the jury about his own role, what he said about the three of them not only had the ring of truth about it, but was also corroborated by other evidence. 108. Finally, the Recorder said that Patel had not given evidence at his trial. Although of course that was his right, it had the consequence that there was nothing to rebut the inference which the Recorder drew: that Patel had performed a leading role. He was sure that it was a leading role, although it was one that was subordinate to that of Solanki. 109. In our judgment, that reasoning by the Recorder cannot be faulted. He was best placed to assess the role which Patel had played in the offending, having heard all of the evidence at the trial. 110. The Recorder sentenced Patel at pages 12-13 of the transcript of his sentencing remarks. He placed the offence in category 3 because of the quantum of £1.8 million. There was high culpability. The starting point suggested in the guideline of seven years' custody is for a case where £1 million has been laundered. This case was, therefore, towards the top end of the bracket. Factors increasing seriousness were that the offence was committed across borders, of which Patel was fully aware. He had played a part in a professional, cross-border money laundering operation running into over £1 million during his involvement. 111. It is important to bear in mind, as the Recorder had said earlier, at page 9E-F, that this was a professional, multi-million pound money laundering operation. 112. The Recorder took into account factors reducing seriousness: the fact that Patel had no previous convictions or cautions; and that there was a lapse of time since his apprehension, which was not his fault. On the other hand, the activity was not originally legitimate because Patel was sentenced in respect of the period starting only in February 2014. By that time the activity was very much illegitimate. 113. The Recorder took into account his personal mitigation. Patel was married with children. He was the sole breadwinner. His wife had little education and understanding of the English language, and there was a risk of hardship. The Recorder took into account the decision of this court in R v Petherick [2012] EWCA Crim 2214 ; [2013] 1 Cr App R(S) 116, at [17] to [25] in the judgment of Hughes LJ, concerning Article 8 of the European Convention on Human Rights, which is set out in Schedule 1 to the Human Rights Act 1998 . 114. The Recorder acknowledged that a custodial sentence would undoubtedly interfere with the applicant's private and family life and that of the rest of his family. But he needed to ensure that the degree of interference was necessary and proportionate. He noted that Patel had decided to offend even though he had young children and therefore had run the risk that he would be caught and sentenced. The Recorder made a downwards adjustment because the children were so young. 115. In our judgment, none of that reasoning can possibly faulted. The Recorder fully took into account such mitigation as was available to Patel. The sentence which he imposed of six years' imprisonment was not, arguably, wrong in principle or manifestly excessive. Conclusion 116. In the result, we grant Patel's application for leave to appeal out of time against conviction. We dismiss the appeals against conviction of both appellants. We also refuse both applicants leave to appeal against sentence. ___________________________________________ 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] ________________________________
{"ConvCourtName": ["Crown Court at Harrow"], "ConvictPleaDate": ["26th September 2018", "27th September 2018"], "ConvictOffence": ["entering into or becoming concerned in a money laundering arrangement"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Harrow"], "Sentence": ["Solanki was sentenced to eight years' imprisonment and was disqualified from acting as a director for a period of ten years", "Patel was sentenced to six years' imprisonment."], "SentServe": ["data not available"], "WhatAncillary": ["disqualified from acting as a director"], "OffSex": ["He"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["Solanki was the sole director"], "OffHomeOffence": ["Solanki's home address"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["stopped by police", "passports, bank documents and a utility bill", "forensic examination"], "DefEvidTypeTrial": ["he denied any wrongdoing."], "PreSentReport": ["data not available"], "AggFactSent": ["professional, multi-million pound money laundering operation", "sophisticated", "abused his position", "leading role", "multi-million pound", "scheme had an international reach", "false and hijacked identities"], "MitFactSent": ["significant family hardship", "good character", "medical issues", "poor health", "family responsibilities", "delay", "previous good character"], "VicImpactStatement": ["data not available"], "Appellant": ["appellant"], "CoDefAccNum": ["BIPIN KUMAR SOLANKIDEVENORAKUMAR PATEL"], "AppealAgainst": ["against sentence", "against conviction", "extension of time of 265 days"], "AppealGround": ["first, that the Recorder wrongly directed the jury", "manifestly excessive.", "secondly, that the Recorder wrongly failed to give a direction", "Recorder placed insufficient weight on his personal mitigation.", "Recorder erred in determining that the Patel fell within culpability"], "SentGuideWhich": ["section 328 of the Proceeds of Crime Act 2002.", "definitive guideline issued by the Sentencing Council on fraud, bribery and money laundering offences", "section 2 of the Company Directors Disqualification Act 1986."], "AppealOutcome": ["against conviction are dismissed.", "refuse both applicants leave to appeal against sentence."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we are satisfied that there was no need for a Brown direction to be given."]}
{"ConvCourtName": ["Crown Court At Harrow"], "ConvictPleaDate": ["2018-09-27", "2018-09-26"], "ConvictOffence": ["entering into or becoming concerned in a money laundering arrangement"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Harrow"], "Sentence": ["Patel was sentenced to six years' imprisonment.", "Solanki was sentenced to eight years' imprisonment and was disqualified from acting as a director for a period of ten years"], "SentServe": ["data not available"], "WhatAncillary": ["disqualified from acting as a director"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["forensic examination", "Documentation", "Police evidence"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["Financial gain /value", "abused his position", "leading role", "sophisticated", "scheme had an international reach", "false and hijacked identities", "professional, multi-million pound money laundering operation"], "MitFactSent": ["family responsibilities", "medical issues", "significant family hardship", "poor health", "delay", "good character", "previous good character"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["1"], "AppealAgainst": ["against sentence", "Other (e.g., application for extension of time to appeal)", "against conviction"], "AppealGround": ["Recorder erred in determining that the Patel fell within culpability", "Recorder placed insufficient weight on his personal mitigation.", "manifestly excessive.", "secondly, that the Recorder wrongly failed to give a direction", "first, that the Recorder wrongly directed the jury"], "SentGuideWhich": ["definitive guideline issued by the Sentencing Council on fraud, bribery and money laundering offences", "section 2 of the Company Directors Disqualification Act 1986.", "section 328 of the Proceeds of Crime Act 2002."], "AppealOutcome": ["Dismissed-Failed-Refused", "Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we are satisfied that there was no need for a Brown direction to be given."]}
503
Neutral Citation Number: [2008] EWCA Crim 25 No: 200705489 A5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 15 January 2008 B e f o r e : LADY JUSTICE HALLETT MR JUSTICE STANLEY BURNTON MR JUSTICE WYN WILLIAMS - - - - - - - - - - - - - - - - - - - - - R E G I N A v EDWARD MCGHEE - - - - - - - - - - - - - - - - - - - - - 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 RS Gioserano appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE WYN WILLIAMS: On 22 August 2007, before HHJ Hoffman sitting at the Crown Court at York, the appellant pleaded guilty to an offence of wounding, contrary to section 20 of the Offences Against The Person Act 1861 . On 4 October 2007, the same judge sentenced the appellant to a term of 33 months' imprisonment. The appellant appeals against that sentence with leave of the Single Judge. 2. The incident giving rise to the proceedings against the Appellant took place in a public house in Harrogate known as the Slip Inn on 12 March 2007. The public house is a small one usually frequented by regular customers. At the material time two such customers were the appellant and a man called Peter Kemp. Both were present in the public house on 12 March together with about five other people. Towards the end of the evening, at about 10pm a person, or more than one person, was in the pub with the appellant and he or they spoke to Mr Kemp. Something occurred to cause the conversation between those men to become heated. The appellant joined in with the conversation and this much is common ground that as the conversation came to an end Mr Kemp called the appellant a "prick". 3. What happened next is the subject of some confusion in the sense that the witness statements taken by the police officers did not all agree about the precise sequence of events and what the appellant did. However, the sentencing judge proceeded on this basis that Mr Kemp turned away from the appellant and began to walk back to the place where he had been having a drink and it was while he had his back turned to the appellant that he was attacked by him. The attack took this form: the appellant struck Mr Kemp at least two blows. He did that while he was holding a glass. The judge found that after the first blow had been struck the glass was broken, so that it followed that the second, and any subsequent blow, was with a broken glass. The blows which were struck with the glass were to the sides of Mr Kemp's head. Those blows caused him to go to the ground. The attack was aggravated by the fact that whilst Mr Kemp was on the ground the appellant kicked him twice. 4. As a consequence of this attack Mr Kemp suffered distinct lacerations on each side of his head. Fortunately the injuries can properly be regarded as transient, but, in the circumstances, that might easily not have been the case. 5. Following this incident the appellant was charged not with an offence of wounding, but with wounding with intent. When the indictment was drawn it was wounding with intent which was the offence that was placed upon the indictment. At a preliminary hearing, on 18 May 2007, the appellant indicated that his plea to that offence would be "not guilty", but he also indicated a willingness to plead to wounding. At that stage such a plea was not acceptable to the prosecution. 6. The same stance remained, so far as the prosecution was concerned, when a plea and directions hearing took place on 10 August and accordingly a trial was fixed. However, on the day of the trial the appellant was informed by his counsel, after discussions with the prosecution, that a plea to section 20 was acceptable to the prosecution and at that stage he entered that plea. Counsel for the appellant submits that this course was not one with which Judge Hoffman concurred. That may be correct. However, it remains the case that the discussions between counsel resulted in the course which was taken and the learned judge did nothing, in the end, to interfere with that course. 7. Mr Gioserano, counsel for the appellant, makes one essential submission and that is that a sentence of 33 months was too long for this offence. He submits, quite correctly, that the appellant was entitled to full credit for his plea of guilty and that being so he submits that the judge's starting point for his sentence was a sentence after trial in excess of four years. Counsel submits that although this was a serious offence, on any view, it was not such so as to attract a sentence which is quite close to the maximum available. 8. In making that submission he relies upon two decisions of this court. The first decision which he cites is the case of Robertson (1998) 1 C app R (S) 21. The second case is that of Singleton (1998) 1 Cr App R (S) 199. In our judgment the case of Singleton is one which may not be decided in the same way in the current sentencing climate. Counsel for the applicant conceded as much during the course of this oral application. The case of Robertson , however, does contain general views expressed by the court which we need address. Robertson involved the glassing of a man in a public house. He was drinking in the public house when he attacked a man by thrusting a beer glass into the left side of his face. The glass broke on impact and caused wounds to the victim's face. Mr Robertson pleaded guilty to unlawful wounding and the sentencing judge imposed a sentence of two-and-a-half years' imprisonment. 9. This court reduced the sentence from two-and-a-half years to two years. During the course of giving the judgment of the court, Latham J, as he then was, reviewed a number of authorities dealing with offences of section 20 and then said this: "The position in our judgment is that, in the light of those authorities, the Court should look with some care at sentences over two years' imprisonment for an offence under section 20 to see whether in truth there is a real justification for a sentence of the length in question on the facts of the particular case." Then he went on to refer to the personal mitigation available to the appellant in that case. He said: "...in our judgment the mitigation, namely his plea, his undoubted remorse and the fact that he appears to have taken steps to address his alcohol abuse, do not in our view justify the conclusion that the circumstances of this case necessitate a sentence of more than two years' imprisonment." In his sentencing remarks Judge Hoffman distinguished both Robertson and Singleton on the basis that each of those cases involved one single blow with a glass, whereas in the instant case there were at least two blows with a glass followed by two kicks to the victim while he lay on the floor. In our judgment Judge Hoffman was correct to distinguish those decisions on that basis. 10. In our view this case on its facts is significantly worse than either Robertson or Singleton . However, in the light of the more general point made by the Court in Robertson we propose to look closely at the issue as to what extent, if any, a sentence in excess of two years is justified in this case. 11. We begin our scrutiny by asking the question: what is the correct starting point after a trial for sentence for this appellant in relation to this offence? Is it something over four years, as the judge clearly thought, or is that too high? In fixing the appropriate length of course we must consider not just the circumstances of the offence, but also the personal mitigation available to the offender. The appellant is 30 years old, 29 at the time of the offence. He has no relevant previous conviction. Lest that be thought to be doing less than justice to his previous character, we should say that he has one conviction for a minor offence involving a vehicle. 12. He is hard-working, or at least was until his conviction for this offence, and he is spoken of highly in a number of written references. The pre-sentence report described the risk of his re-offending as low. He has always, as we have indicated, been prepared to plead guilty to section 20 . In a short report from the prison at which he is serving his sentence it is clear that the appellant is responding well to his incarceration. That, in itself, of course, does not affect the appropriate starting point for sentence directly, but does give some insight into whether expressions of remorse, and the like, are genuinely made. 13. In our judgment, balancing the serious nature of the assault against the personal mitigation available to the appellant, and for the moment ignoring discount for guilty plea, we consider that the appropriate sentence after a trial would have been of the order of about three-and-a-half years' imprisonment. Taking that as our starting point, we think that the appropriate sentence in this case, after giving credit for the guilty plea, would have been one of 27 months. 14. We propose to quash the sentence of 33 months imprisonment and substitute one of 27 months. To that extent, this appeal is allowed. 15. LADY JUSTICE HALLETT: Thank you very much.
{"ConvCourtName": ["Crown Court at York"], "ConvictPleaDate": ["22 August 2007"], "ConvictOffence": ["wounding"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["at that stage he entered that plea."], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at York"], "Sentence": ["33 months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["29 at the time of the offence"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["frequented by regular customers. At the material time two such customers were the appellant and a man called Peter Kemp."], "VictimType": ["Peter Kemp"], "VicNum": ["Peter Kemp"], "VicSex": ["Peter Kemp"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["witness statements", "distinct lacerations on each side of his head"], "DefEvidTypeTrial": ["the appellant indicated that his plea to that offence would be \"not guilty\", but he also indicated a willingness to plead to wounding. At that stage such a plea was not acceptable to the prosecution."], "PreSentReport": ["pre-sentence report described the risk of his re-offending as low"], "AggFactSent": ["aggravated by the fact that whilst Mr Kemp was on the ground the appellant kicked him twice.", "any subsequent blow, was with a broken glass"], "MitFactSent": ["entitled to full credit for his plea of guilty", "expressions of remorse, and the like, are genuinely made.", "He has no relevant previous conviction"], "VicImpactStatement": ["data not available"], "Appellant": ["appellant pleaded guilty t"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against that sentence"], "AppealGround": ["a sentence of 33 months was too long for this offence", "judge's starting point for his sentence was a sentence after trial in excess of four years"], "SentGuideWhich": ["section 20 of the Offences Against The Person Act 1861", "section 20"], "AppealOutcome": ["We propose to quash the sentence of 33 months imprisonment and substitute one of 27 months. To that extent, this appeal is allowed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["a sentence of 33 months was too long for this offence. He submits, quite correctly, that the appellant was entitled to full credit for his plea of guilty and that being so he submits that the judge's starting point for his sentence was a sentence after trial in excess of four years. Counsel submits that although this was a serious offence, on any view, it was not such so as to attract a sentence which is quite close to the maximum available."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["Crown Court At York"], "ConvictPleaDate": ["2007-08-22"], "ConvictOffence": ["wounding"], "AcquitOffence": ["Don't know"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["in court after first appearance"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court At York"], "Sentence": ["33 months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["Don't know"], "OffSex": ["All Male"], "OffAgeOffence": ["29"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["distinct lacerations on each side of his head", "witness statements"], "DefEvidTypeTrial": ["the wounding was not intentional"], "PreSentReport": ["Low risk of reoffending"], "AggFactSent": ["aggravated by the fact that whilst Mr Kemp was on the ground the appellant kicked him twice.", "weapon"], "MitFactSent": ["expressions of remorse, and the like, are genuinely made.", "He has no relevant previous conviction", "entitled to full credit for his plea of guilty"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against that sentence"], "AppealGround": ["judge's starting point for his sentence was a sentence after trial in excess of four years", "sentence is excessive"], "SentGuideWhich": ["section 20", "section 20 of the Offences Against The Person Act 1861"], "AppealOutcome": ["Allowed&Sentence Replaced by More Excessive Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["appeal court believes offender has strong mitigation"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
548
Case Nos: 200804825 B3, 200804832 B3 Neutral Citation Number: [2010] EWCA Crim 1149 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 28/05/2010 Before : LORD JUSTICE MAURICE KAY MR JUSTICE ROYCE and MR JUSTICE NICOL - - - - - - - - - - - - - - - - - - - - - Between : R - v - SLACK and JOHNSON - - - - - - - - - - - - - - - - - - - - - Mr Stephen Spence for Slack Mr Vincent Coughlin QC and Miss Katherine Moore for Johnson Mr Simon Spence QC and Mr Richard Potts for the Crown Hearing date : 30 April 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Maurice Kay : 1. In August 2008 these two appellants, together with David Comer, stood trial for murder. At the conclusion of the trial Slack was convicted of murder. Johnson was acquitted of murder but convicted of manslaughter. In the course of the trial she had also pleaded guilty to an offence of assault occasioning actual bodily harm. Comer was acquitted of murder and manslaughter but he had pleaded guilty to an offence of perverting the course of justice. Slack and Johnson now appeal against conviction for, respectively, murder and manslaughter, leave having been granted by the full court. 2. On the afternoon of 25 May 2007, sometime before 3.30pm, Alan Bowles (the Deceased), then aged 65, was killed in his flat. At the time Slack, Johnson and Comer were all present. Pathological evidence established that death was caused by a penetrating injury, consistent with the forcible insertion of a walking stick through the throat and into the body cavity. The Deceased had other injuries including five fractured ribs which appeared to be recent and to have resulted from blunt impact before the fatal injury. He also had injuries to his head, neck, nose, lips and shins. 3. The Deceased’s flat was a meeting place for those who, like him, were consumers of alcohol and drugs. By 25 May, Slack had moved in and was living with the Deceased. Comer was a frequent visitor. However, the Deceased had begun to complain that Slack took money from him and put him in fear. A visitor to the flat at midday saw Slack and Johnson there. Johnson was drunk. The Deceased was in a state of distress and was shouting at Slack. When the visitor left shortly after 1.00pm he saw Comer walking up the stairs towards the flat. The only witnesses to what happened in the flat after that were Slack, Johnson and Comer. 4. Slack and Johnson remained together all afternoon after the Deceased had been killed. They were captured on CCTV footage at the King’s Bar between 3.30 and 4.15 and they were seen together later at the Uptown Bar. The barmaid observed them drinking together and noticed that at some stage Johnson changed her clothes. Johnson said that she did not want the clothes that she had taken off. Slack and Johnson left together but Johnson later returned alone. At that stage she told the barmaid that Slack had killed the Deceased with a walking stick. 5. At 9.30pm Slack and Comer visited Slack’s nephew. Slack said something to the effect that he was on a murder charge. The nephew called a taxi to take Slack away. Later, the nephew and Comer went to the Deceased’s flat where the body still lay. Comer removed the walking stick and disposed of it in the river. This formed the basis of the offence of perverting the course of justice. 6. The next day, 26 May, Slack visited his sister. He spoke to his nephew and gave an account of what had occurred. It resembled the evidence he was later to give to the jury. He also visited a friend in Cambridge where he gave an account of what had happened, this time in a more explicitly inculpatory form. 7. On 28 May Slack’s sister reported the murder to the police. Later that day Comer was arrested. In his second interview he gave an account broadly similar to his evidence at trial. 8. On 29 May Slack was arrested. A Community Police Officer gave evidence that Slack had said that he was a paranoid schizophrenic but “they” had not given him any medicine. He said that he knew what he had done and that he had taken a life. Slack made no comment in interview. 9. On 30 May the same barmaid to whom we have referred heard Johnson on the phone to her mother saying that the police were looking for her. She told her mother that there had been an argument and that the Deceased had threatened Slack with a knife. He had been disarmed and she had thrown the knife out onto the balcony. She had given the Deceased a good kicking and Slack had put the walking stick down his throat. Comer had been present. When the barmaid spoke to Johnson on later occasions, Johnson denied kicking the Deceased or taking any part. Johnson was arrested later that day. In interview she denied that she had taken part in the incident. She said that the Deceased had attacked Slack with a knife and that Slack had taken the knife and she had thrown it onto the balcony. She said that Slack had lost control and that he had put the stick down the Deceased’s throat. She had told him to stop. She said that Comer was there and, at one point, she stated that he had participated by kicking the Deceased. She said that she had neither intervened nor called an ambulance through fear and that she had wanted to leave. 10. Slack gave evidence in which he sought to place the blame on Comer. He described previous incidents in which he said Comer had used violence against the Deceased. As regards the day of the killing, Slack said that the Deceased had been angry with him in the morning and had sought to stab him with a kitchen knife but Slack had disarmed him and put the knife in the kitchen. The dispute had continued. Johnson had collected the knife from the kitchen and held it in front of the Deceased, telling him not to threaten Slack, after which she threw the knife onto the balcony. All this was before the midday visitor arrived. After the visitor had left and Comer had arrived, argument continued between the Deceased, Johnson and Comer. Johnson then attacked the Deceased kicking and punching him to the chest and stomach. The Deceased was accusing Slack of having taken money from him. Slack picked up a cushion and placed it over the Deceased’s mouth to shut him up but it did not. The Deceased threatened to give information to the police about Comer’s father and the supply of drugs. Slack said that he took hold of the Deceased’s walking stick and put the rubber stopper at the bottom into the Deceased’s mouth to shut him up. Comer was behind him and he kicked or pushed the stick which was still in the Deceased’s mouth with force. Slack pulled it out and saw the blood. Slack said that he had used the stick on the spur of the moment but had not intended to cause serious injury. He said that Johnson may have caused the rib injuries and the injuries around the Deceased’s mouth but that she had had nothing to do with the stick. He said his recollection of events was hazy. When the parties had gone their separate ways, Comer had suggested that whoever got caught first should say nothing. He said he had not made any admissions of murder to anyone although he may have said that he was involved because, after all, he was there. He denied the conversation with the Police Community Officer. 11. Comer also gave evidence. He described previous incidents between Slack and the Deceased in which Slack had been violent. He said that after he arrived at the flat on 25 May a fight broke out between Johnson and the Deceased. They were punching each other and the Deceased had a bloody nose. The fighting then stopped. Slack then went into the Deceased’s bedroom and came back with two pillows. The Deceased was sitting there moaning. Slack then put the pillows over the Deceased’s face causing him to struggle. Slack then said “This ain’t working”, threw the pillows down and took the walking stick. He pushed it down the Deceased’s throat. The stopper was not on the end of the stick. Slack used both hands and knelt on the Deceased’s chest to force the stick in. He kept it there for about 20 seconds until the Deceased was dead. He said that he had done nothing but Johnson was telling Slack to stop. He admitted returning to the flat later and taking the walking stick prior to disposing of it in the river. He said that he had lied initially in interview because he was scared of Slack. 12. Johnson did not give evidence. Expert witnesses called on her behalf referred to her IQ being in the “extremely low” bracket. Her memory function was poor and one expert referred to her as highly suggestible. 13. It is apparent from that summary that Slack and Comer were running cut-throat defences. Although both described Johnson assaulting the Deceased prior to Slack’s introduction of the cushions and the walking stick, neither said that she was party to the fatal use of the walking stick. It was after the close of the defence case that the prosecution obtained leave to add a Count of assault occasioning bodily harm to the indictment in relation to Johnson, whereupon she pleaded guilty to that offence. Rulings in the course of the trial 14. In the course of the prosecution case, the prosecution sought and obtained a ruling that evidence of Johnson’s bad character be admitted in order to show that she had a propensity to use uncontrolled violence when under the influence of alcohol. Comer’s previous convictions were admitted as being relevant to the issue whether or not he had participated in the assault. On behalf of Johnson submissions of no case to answer were made at the end of the prosecution case and again at the end of the defence case. Both were unsuccessful. Following the closing speech for the prosecution, an application was made on behalf of Johnson to discharge the jury. It was said that the earlier bad character ruling had been made on the basis that at that time the case for the prosecution was that Johnson had physically participated in the attack with the walking stick whereas the case was now being put on the basis of joint enterprise in the form of encouragement. The application was refused. The grounds of appeal 15. On behalf of Johnson, trial counsel formulated more extensive grounds of appeal than those now pursued on her behalf by Mr Vincent Coughlin QC (who did not appear at the trial). The grounds of appeal upon which he relies relate to (1) the admission of bad character evidence; (2) the refusal of the judge to discharge the jury; and (3) the direction on bad character in the summing up. He does not suggest that the judge was wrong to reject the submissions of no case to answer. However, on behalf of Slack, Mr Stephen Spence does not concede that the judge was correct to reject the submissions of no case to answer on behalf of Johnson. Slack’s grounds of appeal are predicated on the primary submission that the judge ought to have acceded to submissions of no case to answer in relation to Johnson or ought to have discharged the jury upon her application. In either of those eventualities, it is submitted that the only fair consequence would have been to discharge the jury in relation to Slack so as to enable him to be tried without the prejudice that flowed from the content of Johnson’s police interviews. Mr Spence also criticises the way in which the judge dealt with Johnson’s interviews in his summing up. Johnson: bad character evidence 16. The prosecution opened and were entitled to open the case on the basis of joint participation by all three defendants in the fatal attack. It was at a late stage in the prosecution case that an application was made to adduce bad character evidence in relation to Johnson. It was made by reference to Johnson’s claim in interview to have played no part whatsoever in the violence and, indeed, to have an aversion to violence. The evidence sought to be adduced embraced convictions on two previous occasions. On 30 March 2001 Johnson was convicted of an offence of wounding a man with intent to do him grievous bodily harm and an associated offence of causing actual bodily harm. On 21 September 2007 she pleaded guilty to an offence of battery where the victim was her own mother. In a lengthy ruling the judge held that the evidence was admissible pursuant to section 101(1)(d) of the Criminal Justice Act 2003 in that it was “relevant to an important matter in issue between the defendant and the prosecution”. It was considered relevant to propensity by reference to section 103(1)(a). The judge further held that, if the prosecution had persisted with an application by reference to section 101(1)(f) – “evidence to correct a false impression given by the defendant” – he would also have admitted the evidence on that basis in view of what Johnson had said in interview. The judge adverted to section 101(3) and section 78 of the Police and Criminal Evidence Act 1984 but 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. 17. Evidence of the convictions was then adduced by way of formal admission. In both cases the formal admissions included detailed accounts of the events that had given rise to the convictions. In both cases, Johnson had carried out violent attacks upon the victims in their own homes at a time when she had been drinking. The detailed description of the earlier offence of wounding with intent also contained material suggesting that, in the aftermath, Johnson had attempted to minimise her involvement. 18. In our judgment, there can be no possible criticism of the ruling to admit the evidence. We do not accept the submission that the case against Johnson was a weak one which would be distorted by the jury hearing of the details of previous violence. By her own admission (in the telephone conversation to her mother which was overheard by the barmaid on 30 May) she had given the Deceased “a good kicking” before Slack had used the walking stick on the Deceased. She had spent the hours after the killing drinking with Slack. Notwithstanding her denials in interview, there was evidence implicating her as a participant in the attack. The judge directed himself carefully as to the law and gave due consideration to the question of fairness. We consider his ruling to have been permissible and, indeed, correct. 19. The next question is whether subsequent developments in the trial were such that the admissibility of the bad character evidence ought to have been reviewed at the close of the defence case. By then, Slack and Comer had given evidence implicating Johnson in the initial violence but not in the attack with the walking stick. When Slack was cross-examined on behalf of Johnson he said that she had taken no physical part in the walking stick attack. In answer to cross-examination on behalf of the Prosecution he said “I can only assume the fractured ribs came when Johnson jumped on him and punched him and the injuries around the mouth were when she punched him but Johnson had nothing to do with the stick”. Comer described the initial fight between Johnson and the Deceased, he added: “It stopped at one stage and [the Deceased] fell back into his chair … he was bloody nosed and his face looked as if he’s had enough and Johnson sat back down. I thought that was the end of everything.” 20. He then described Slack attacking the Deceased, first with the pillows and then with the walking stick, throughout which Comer and Johnson remained seated. When cross-examined on behalf of Johnson he said: “Johnson was egging him to stop. She was egging him to stop.” 21. He was equivocal about the time frame. At one point he said that the incident between Johnson and the Deceased “had blown over” before Slack used the walking stick, but when cross-examined on behalf of the Prosecution he said: “I think he was getting the pillows while the punching was going on. [The Deceased] had fallen back in the chair and Johnson was not punching him in the chair.” 22. In the summing up that passage was put in direct speech before the judge lapsed into indirect speech: “He said there was no real break from the one event, punching and the pillows.” 23. We do not have a transcript of this evidence and have to rely on the summing up. Mr Coughlin invites us to distinguish between that which is in direct and that which is in indirect speech. However, we are not minded to distinguish in that way. 24. It was in the light of the evidence given by Slack and Comer that the Prosecution and the judge came to see the case against Johnson differently from the original allegation of joint murderous violence in which all three defendants had physically participated. The emphasis shifted to an analysis which accepted that Johnson had not participated in physical violence after the initial punching or “good kicking”. She was not physically active in the walking stick incident. However, the Prosecution maintained that she should still be convicted of murder or, alternatively manslaughter, on the basis of encouragement. It was at this stage of the trial that the count of assault occasioning actual bodily harm was added to the indictment and Johnson pleaded guilty to it. 25. The question that now arises is whether the bad character evidence which had been admissible at the earlier stage had now become inadmissible because the allegation against her was no longer one of physical participation in the final, fatal attack. Mr Coughlin submits that the previous convictions did not show a propensity to encourage others to take violent action, nor did they suggest that she would use or encourage the use of such a highly uncommon weapon as a walking stick. 26. In our judgment, the admissibility of the bad character evidence had not come to an end. The allegation of murder remained (and, Mr Coughlin concedes, rightly remained) before the jury. It was for the jury to decide whether Johnson was actively encouraging murder, manslaughter or nothing when Slack began to deploy the walking stick. It is artificial to suggest that a propensity to drunken violence cannot be relevant when considering drunken encouragement to violence. It was relevant to Johnson’s state of mind, as indeed was her newly admitted assault occasioning bodily harm. Although by this stage in the trial, the judge was indicating an acceptance that the use of the walking stick “took the incident to a new level” and that the case against Johnson on murder or manslaughter “has to be one which relates to Slack’s use of the stick”, it is unrealistic and over-schematic to seek to draw an analytical line at the point where Johnson’s active violence came to an end. Indeed, on Comer’s evidence, there was no real break between Johnson’s assault and Slack’s resort to the pillows and on Slack’s evidence he took hold of the walking stick almost immediately after he had failed to quieten the Deceased with the pillows. In these circumstances, it seems to us that the bad character evidence was as relevant to encouragement as it was to physical participation. To admit it had not become less fair. It remained for the jury to determine the facts in the light of careful direction by the judge. It is quite clear that that is what they did. They were not impelled by the unpleasantness of the previous convictions to infer the worst about Johnson. They acquitted her of murder. They plainly convicted her of manslaughter on the basis of encouragement of some use of the walking stick but not the ramming of it down the throat of the Deceased. That much is readily deducible from the verdicts. It may well be that she was assisted in that regard by Comer’s evidence to the effect that at that stage Johnson was urging Slack to stop. Whilst we cannot know whether the jury accepted all of Comer’s evidence, it is plain from the verdicts in respect of Slack and Comer that they accepted at least substantial parts of it. 27. We are satisfied that the bad character evidence in relation to Johnson was properly admitted in the first place and remained properly before the jury thereafter. Johnson: refusal of the application to discharge the jury 28. This ground of appeal is closely related to the previous one. Following the closing speech for the prosecution an application was made on behalf of Johnson to discharge the jury. The contention was that the original bad character ruling had been made on the basis that the case for the Prosecution was that Johnson had physically participated in the walking stick attack whereas now the Prosecution case was put on the basis of encouragement. This led trial counsel to submit that any earlier justification for the admissibility of the bad character evidence was greatly diminished; but if the later position had been appreciated on the earlier occasion the evidence would not have been admitted; and that, accordingly, the only fair course was to discharge the jury in Johnson’s case. 29. As we have concluded that the course of the trial did not convert the bad character evidence from being admissible to being inadmissible, and that it remained admissible in relation to the issues continuing before the jury, it follows that we find no error in the refusal of the judge to discharge the jury. Johnson: the summing up 30. This ground of appeal relates to the terms in which the judge summed up Johnson’s bad character. 31. The judge’s directions began with a passage referable to all defendants. He said this: “In the old days, juries were usually not told about a defendant’s previous convictions. This was because of the fear that such information would prejudice the jury against the defendant and that they would give it more weight that it deserved. Today, such evidence is often admitted because a jury understandably wants to know whether what the defendant is alleged to have done is out of character or whether he or she has behaved in a similar way before. Of course, a defendant’s previous convictions are only background. They do not tell you whether he or she has committed the offence with which he or she is charged in this case. What really matters is the evidence that you have heard in relation to that offence, so be careful not to be unfairly prejudiced against the defendant by what you have heard about his or her previous convictions.” 32. The judge then considered the position in relation to Johnson. He reminded the jury of the two previous convictions and added: “The defendant accepts by her plea of guilty to the added count of assault occasioning actual bodily harm that she attacked [the Deceased], but of course she has always vehemently denied any allegation that she participated in the subsequent attack on him involving the use of a walking stick or that she formed any intent in relation to that matter.” 33. He then said: “When you consider that issue, you may consider it relevant that on two previous occasions, the defendant had been convicted of using violence in the manner just set out. The prosecution say that those convictions plus her now admitted actions on this day show that she has a tendency to use uncontrolled violence injuring old people in their own homes and minimise her actions. It is for you to decide if that assertion by the prosecution is correct and the extent to which, if at, the previous convictions assist you in deciding that issue. I must also emphasise to you that such convictions would be equally relevant to a consideration of manslaughter and do not relate to your consideration for the murder count anymore than they relate to the manslaughter count.” 34. The judge then dealt with the two male defendants before adding: “In the case of all three defendants, do not use the convictions for any other purpose than that which I have set out, and in all cases, do not assume guilt because they have previously been convicted of criminal offences.” 35. Mr Coughlin submits that these passages do not add up to a proper explanation as to why the jury had heard the bad character evidence or the ways in which it could be said to be relevant to their task. He says that the direction was insufficiently tailored to the circumstances of the case. 36. Guidance on this subject was first given in Hanson [2005] 2 Cr App R 21 , paragraph 18. Rose LJ returned to the matter in Edwards [2006] 1 Cr App R 3 at paragraph 3 where he said: “The guidance proffered in paragraph 18 of Hanson as to what a summing up should contain was, whilst … not intended to provide a blueprint, departure from which will result in the quashing of a conviction. What the summing up must contain is a clear warning to the jury against placing undue reliance on previous convictions, which cannot, by themselves, prove guilt. It should be explained why the jury has heard the evidence and they ways in which it is relevant to and may their decision, bearing in mind that relevance will depend primarily, though not always exclusively, on the gateway in section 101(1) of the Criminal Justice Act 2003 , through which the evidence has been admitted … provided the judge gives such a clear warning, explanation and guidance as to use, the terms in which he or she does so can properly differ. There is no rigid formula to be adhered to.” 37. Further guidance was given by Lord Phillips of Worth Matravers LCJ in Campbell [2007] 2 Cr App R 28 . 38. We have considered the direction in the present case in the light of these authorities. We are satisfied that the judge did not materially diverge from the requisite approach. The judge explained why the law now permits evidence of this kind to be adduced but expressed himself in terms which made clear that the jury should not overemphasise the significance of the convictions. He also made clear that the jury should not assume guilt because of them. Mr Coughlin complains that the judge ought to have said at this point in the summing up that, notwithstanding any propensity to violence, Johnson was not physically involved at the walking stick stage and that her physical involvement had ended before Slack armed himself and took the violence to “a whole new level”. All this was made abundantly clear elsewhere in the summing up. We do not consider that the omission to knit it into the direction on bad character rendered that direction deficient or defective. We should add that as he concluded his summing up, but in the absence of the jury, the judge specifically invited counsel to assist in these terms: “If there are problems in this case with anything I have said factually or in law I do hope I am going to be told.” 39. No point was made on behalf of Johnson to the effect that the directions in law affecting her were unsatisfactory. We do not consider that they were. Slack 40. The perfected grounds of appeal on behalf of Slack are essentially parasitic upon a successful appeal by Johnson. It is said that as the judge acknowledged that if Johnson’s submission of no case to answer had been allowed or her application for the discharge of the jury had succeeded then the jury should also have been discharged in Slack’s case. This contention was built on the fact that the jury had heard in Johnson’s case, by reference to her police interviews and conversations with others in the absence of Slack, material that was highly prejudicial to Slack even though not admissible against him. Moreover, Johnson had not given evidence and so there had been no opportunity to cross-examine her about these matters. In the event, we have held that the judge was correct to reject Johnson’s submissions of no case to answer and to refuse to discharge the jury on her application. To that extent, Slack cannot derive any benefit from Johnson’s appeal. 41. At the hearing, Mr Spence took a rather broader approach. He submits that, in any event, the safety of Slack’s conviction is undermined by prejudice flowing from Johnson’s case. He points not only to her blaming of Slack in interview but also to the evidence of her conversation with the barmaid and the barmaid’s evidence of what Johnson told her mother on the telephone. He emphasises Johnson’s low IQ and the untested nature of what she had said as a result of her not having given evidence. Essentially, he is submitting that, with the benefit of hindsight, this court ought to conclude that at some point the indictment ought to have been severed so as to protect Slack from this prejudice and that the obvious point was on the occasion of the application to discharge the jury at the completion of the evidence. He also relies on the expressed view of the judge that, if the jury had been discharged in relation to Johnson, they would also have been discharged in relation to Slack. In this context we should record that the judge later wrote to this court offering an explanation of what he had said. Mr Spence suggests that the explanation is somewhat at variance with the actual words used at trial. However, we do not need to express any view on that. 42. We do not accept Mr Spence’s submission. The dynamics of this trial resembled those of many joint trials in which some defendants give evidence and others do not in circumstances where some have incriminated others in interview and, one way or another, conflicting defences are run at trial. This case cried out for a joint trial of all three defendants. That, of course, necessitated strong direction from the judge in relation to any evidence that was evidence in the case of one defendant but not the others. It is plain from the transcript of the summing up that the judge gave the jury such a direction and that he had given repeated warnings in the course of the trial. The summing up includes this passage: “… there are a number of warnings and directions which I will give you at this point … The first one is to reiterate the general warning I have already given you on numerous occasions about how you deal with any allegations which defendants have made about other defendants which were not made under oath in the witness box in this courtroom. On occasions, they were made to friends or relatives or acquaintances. In the case of Comer and Johnson, allegations were made in police interviews which you have in summary form. Although you have heard this many times before, I must remind you yet again that those out of court statements are not evidence against other defendants. Those defendants were not there at the time and were not in a position to deal with the matters which were being raised.” 43. When the judge reminded the jury of Johnson’s police interview he again repeated more than once that it was not evidence against Slack or, indeed, Comer. 44. In truth, the case against Slack was a very strong one. He admitted that he had taken the walking stick and put it to the Deceased’s mouth. Although he denied forcing it down the Deceased’s throat and further denied any intention to cause serious injury, he had said nothing in police interview. However there was evidence of his conversations with others in which he had effectively admitted the offence. Whilst it is true that, in evidence, he either denied or sought to explain away such evidence. However, it came from a number of sources, none of whom were shown to bear him any ill-will. His evidence that it was Comer who in fact killed the Deceased only emerged at trial. He had made no such allegation to any witness prior to his arrest and, as we have noted, he was silent in interview. To one witness he had said that “He was in a bit of trouble and would not say why. He and a couple of others. He said a man called Chinny was involved.” Plainly the couple of others were Comer and Johnson and it is common ground that Comer was sometimes known as “Chinny”. Slack’s evidence was that his reticence resulted from an agreement he had reached with Comer to that effect. However, the jury were able to evaluate the respective evidence of Slack and Comer and they came to an unequivocal conclusion about it. We are entirely satisfied as to the safety of Slack’s conviction. Conclusion 45. It follows from what we have said that the appeals against conviction of both Johnson and Slack are dismissed. We finish with this observation. One does not have to read very far between the lines of the transcripts to appreciate that this was or became a somewhat fractious trial. The judge had to deal with many difficulties. In our view, he dealt with them appropriately and well.
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{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["2008-08-01"], "ConvictOffence": ["Comer", "perverting the course of justice", "manslaughter"], "AcquitOffence": ["murder"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["data not available"], "Sentence": ["Don't know"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["Mixed"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Had mental health problems"], "OffIntoxOffence": ["Yes-drinking&drugs"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Male"], "VicAgeOffence": ["65"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Yes-drinking&drugs"], "ProsEvidTypeTrial": ["Offender account admits", "Digital", "Medical"], "DefEvidTypeTrial": ["Expert Evidence", "Offender states co-accused is responsible for main offence", "Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["threatened", "Armed /weapon", "Concealment"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["2"], "AppealAgainst": ["against conviction"], "AppealGround": ["direction on bad character in the summing up", "refusal of the judge to discharge the jury", "admission of bad character evidence"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["case against Slack was a very strong"]}
147
Neutral Citation Number: [2021] EWCA Crim 25 Cases no: 202001565 B3, 202001567 B3 & 202001571 B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/01/2021 Before: LORD JUSTICE HOLROYDE MR JUSTICE PICKEN and MRS JUSTICE FARBEY DBE - - - - - - - - - - - - - - - - - - - - - IN THE MATTER OF REFERENCES BY THE CRIMINAL CASES REVIEW COMMISSION and IN A MATTER OF POSSIBLE IMPROPER DISCLOSURE Between: TRACY FELSTEAD JANET SKINNER SEEMA MISRA Appellants - and - POST OFFICE LIMITED Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr E Henry QC, Mr R Bentwood and Mr G Callus (instructed by Shaw Graham Kersh Solicitors ) for Ms Flora Page Mr P Lawrence QC and Ms Rachel Scott (instructed by Clyde & Co LLP ) for Mr Paul Marshall Mr B Altman QC, Ms Z Johnson QC and Mr S Baker instructed by Peters & Peters for Post Office Limited for the Respondent Hearing dates: 3 December 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Holroyde: 1. Tracy Felstead, Janet Skinner and Seema Misra are three of forty-one persons (collectively, “the appellants”) whose cases have been referred to this court by the Criminal Cases Review Commission (“the Commission”). They were represented by counsel Mr Paul Marshall and Ms Flora Page at a directions hearing on 18 November 2020. At the start of that hearing Mr Altman QC, for the respondent, brought to the court’s attention what he submitted was the improper provision to a journalist of a document, referred to for convenience as “the Clarke advice”, which the respondent had disclosed to those representing the appellants as part of an extensive process carried out in accordance with a Disclosure Management Document (“DMD”). Ms Page informed the court that it was she who had provided that document. Further submissions were heard in that regard on the following day, 19 November. The court was informed that the same document had been provided by Mr Marshall to a police officer. A further hearing was directed. At the conclusion of that hearing, on 3 December 2020, we gave a short oral ruling directing that the question of whether any contempt proceedings are to be initiated against Mr Marshall and/or Ms Page and, if so, whether by the respondent or by the court of its own initiative, must be adjourned for consideration after the appeals have been concluded. We further directed that all further hearings must be before a different constitution. We indicated that our reasons for so ruling would be given in writing at a later date. This we now do. 2. At the hearing on 3 December 2020 Mr Altman QC, Ms Johnson QC and Mr Baker represented the respondent; Mr Henry QC and Mr Bentwood represented Ms Page; and Mr Lawrence QC and Miss Scott represented Mr Marshall. We are grateful to all counsel for their written and oral submissions. 3. We concluded that no contempt proceedings had been initiated, whether by the respondent or by the court, on 18 November. All that happened that day was preliminary to the possible initiation of such proceedings. 4. Nor were any such proceedings initiated on 19 November. 5. We further concluded that our priority must be to ensure that the appeals could proceed in proper course before us, and not be diverted or delayed by issues of possible contempt of court. Those issues were unrelated to the merits of the appellants’ cases. They had arisen as a result of the conduct of counsel acting for three of the forty-one appellants. They were an unnecessary, unwelcome and timeconsuming distraction from appeal proceedings which are of great importance to many people. There was a clear and substantial risk that further consideration of the issues relating to possible contempt of court, including an issue as to the position of the respondent in any contempt proceedings, would impact upon the resolution of important questions of principle which were listed for hearing on 17 December, and on the timetable for the appeal proceedings generally. That risk outweighed the desirability of dealing speedily with the issues of possible contempt of court. For that reason, we concluded that further consideration of those issues must be adjourned until after the appeal proceedings have been completed. 6. We accepted a submission that the just resolution of the issues of possible contempt will not depend on anything which is peculiarly within the knowledge of the members of this constitution of the court. We concluded that it was in the interests of justice that further consideration of the issues of possible contempt should be before a different constitution of the court. 7. In order to explain how these issues arose, and to address the submissions of counsel in a little more detail, we shall set out below an outline of the appeal proceedings, and then summarise the sequence of events which led up to the hearing on 3 December. We shall refrain from comment on the issues which a different constitution will in due course have to consider. 8. Each of the forty-one appellants was a former sub-postmaster, sub-postmistress or Post Office employee. Between 2001 and 2013, each was convicted in the Crown Court of one or more offences of false accounting, theft or fraud. The prosecutions were brought by the respondent, the Post Office (now Post Office Limited), and in most cases relied on records kept by the Post Office's Horizon accounting system, which was in use in branches from about 2000 onwards. In essence, the prosecutions were based upon apparent discrepancies between the cash held at the relevant Post Office branch, and the figures recorded by the Horizon system. The Horizon system was asserted to be accurate and reliable, and the appellants either pleaded guilty or were convicted on that basis. In particular, Tracy Felstead was convicted of offences of theft and false accounting; Janet Skinner pleaded guilty to false accounting; and Seema Misra pleaded guilty to false accounting and was convicted of theft. All three were sentenced to, and served, terms of imprisonment. 9. The reliability of Horizon has subsequently been called into question. In a nutshell, the concern was that underlying faults in the Horizon system caused it to overstate the amount of cash or stock which should have been held at a particular branch, thus causing what appeared to be an unexplained shortfall. 10. Civil proceedings, relating amongst other things to deficiencies in the Horizon system, were commenced by hundreds of former Post Office employees. A Group Litigation Order was made. The proceedings were heard by Fraser J, who delivered a number of detailed judgments, in the course of which he made adverse findings about the Horizon system. He also expressed grave concern about evidence given by some employees, or former employees, of Fujitsu, the company which designed and maintained the Horizon system. At the conclusion of the civil proceedings, he wrote to the Director of Public Prosecutions inviting consideration of whether there should be a prosecution or prosecutions for perjury. The court has been informed that a police investigation into two Fujitsu employees has very recently been commenced. 11. The Commission, pursuant to the power granted to it by section 9 of the Criminal Appeal Act 1995 , referred the forty-one cases to this court. Its reasons for those referrals, which take effect as grounds of appeal against conviction, raised two well-established categories of abuse of process: first, that a defendant could not have a fair trial (“Ground 1”); and secondly, that his or her trial was an affront to the conscience of the court (“Ground 2”). 12. On 16 November 2020, Mr Marshall and Ms Page filed detailed grounds of appeal on behalf of each of these three appellants. 13. The respondent has indicated the following response to the appeals: i) In the cases of thirty-four appellants – including Tracy Felstead, Janet Skinner and Seema Misra – the appeal is not opposed on Ground 1 but is opposed on Ground 2. ii) In three cases, the appeal is opposed on both Grounds 1 and 2. iii) In the remaining four cases, for reasons which are said to be fact-specific, the appeals are not opposed on either Ground 1 or Ground 2. 14. That very brief outline is sufficient to show the importance of these appeal proceedings. Many years have passed since the appellants were convicted and sentenced, in circumstances which the respondent accepts involved an abuse of the process of the court. 15. The respondent has undertaken an extensive process of post-conviction disclosure of unused material. The DMD set out very clearly the process to be followed and the sequence of work. In paragraph 80 of the DMD, the respondent said that material disclosed as part of the process was disclosed “solely for the purposes of the preparation for and conduct of appeal proceedings”. It went on to assert, in paragraph 81 – “The unauthorised use or onward transmission of any disclosed material for any purpose, other than the preparation for and conduct of appeal proceedings, is a breach of the common law obligation not to use the material for any purpose other than for the proceedings in which it is disclosed, and constitutes a contempt of court punishable by a fine or imprisonment or both” 16. In a footnote to that paragraph, the respondent stated that where, as in this case, disclosure is being made in connection with a CCRC reference, it is governed by common law principles rather than by the Criminal Procedure and Investigations Act 1996 (“CPIA”). Relying on Harman v Secretary of State for the Home Department [1983] AC 280 , the respondent asserted in the footnote that the prohibition in the CPIA on the collateral use of disclosure made under section 17 of that Act , breach of which is an offence under section 18, is mirrored in the common law. 17. The forty-one cases were listed for a directions hearing on Wednesday 18 November 2020, before the present constitution of the court. In preparation for that hearing, the parties had put in written submissions. The respondent’s submission questioned whether the court should hear argument on Ground 2 in the cases of appellants whose appeals were not resisted on Ground 1 and could therefore be expected to succeed on that ground. Mr Marshall and Ms Page submitted that Ground 2 should be argued in the cases of these three appellants, even though their appeals were not opposed on Ground 1. Counsel for other appellants made written submissions to the effect that they did not at present actively seek to argue Ground 2 but that they reserved their positions in that regard. One of the matters to be considered on 18 November, therefore, was an issue as to whether Ground 2 should be argued in the cases of those appellants whose appeals were not opposed on Ground 1. 18. On 12 November 2020 the respondent disclosed further material to those representing these three appellants, including the Clarke advice: an advice written by Mr Simon Clarke, a barrister employed as an in-house advocate by Cartwright King, solicitors who either acted or had previously acted for the Post Office (or its predecessor) in criminal prosecutions in the courts below. 19. On 16 November Mr Marshall and Ms Page submitted a further Note to the court, to which they appended a copy of the Clarke advice. They submitted that grounds of appeal could not be settled until all key disclosure had been made, that further disclosure was necessary before the appeals could fairly be concluded, and that the court should set an end date for all disclosure before hearing argument as to whether the appellants should be permitted to argue grounds other than those conceded by the respondent. 20. Having regard to the number of appellants, and the number of issues to be considered, the directions hearing on 18 November was listed for a full day. 21. There is, of course, considerable press interest in these appeals. At the start of the hearing, we directed that counsel for the respondent should read aloud certain paragraphs of the Commission’s two statements of reasons for the referrals, and that the whole of both references should then be deemed to have been read in full. Journalists would then be able to ask for copies of those documents – which amount, collectively, to well over 1,000 pages and contain a great deal of detail - to assist them in accurate reporting. We expressed our provisional view that in accordance with established principles it would be necessary to wait and see to what extent any other documents were referred to in open court during the hearing, to see whether they became disclosable. No counsel made any submission against that approach. 22. Mr Altman QC, for the respondent, then informed the court that on the evening of 17 November the Communications Department of the Post Office had received an email from a Telegraph journalist, Mr Lewis Page, who is the brother of counsel Ms Page. Mr Page said in his email that he had been "talking with the legal team" representing the appellants Tracy Felstead, Janet Skinner and Seema Misra. He said that they had let him see a document which had recently been passed to them “by the PO's lawyers under disclosure rules”. He summarised the nature of the document concerned, namely the Clarke advice, and commented upon it. He concluded by saying: “The Clarke report will be mentioned in court tomorrow and probably in The Telegraph also. It will become public very soon. Naturally the PO should have right of reply. Apologies for the timing but I've only just seen the document and pitched the story myself. I'll keep you informed of publication etc as I know more.” 23. It is clear from that email that Mr Page, the day before a hearing which was listed for directions only, expected that the Clarke advice would be mentioned in court and would “become public”. 24. Mr Altman also provided the court with copies of an article by Mr Page, published in the Telegraph on 17 October 2020, in which he named, and quoted, the solicitor who acts for these three appellants. Later in the article he referred to what the Telegraph had been told by "legal sources”, but did not name or identify those sources. 25. Mr Altman referred to Harman and to Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 . He submitted that the provision of the Clarke advice to a journalist was a serious breach of the terms of the DMD, a breach of an implied undertaking at common law and arguably a contempt of court. The Clarke advice was a document covered by legal professional privilege, and the respondent had waived privilege only for the purpose of meeting its disclosure obligations. Given that one matter to be considered at the directions hearing was the possible imposition of reporting restrictions, a particular vice of what had happened was that the Clarke advice referred to persons who were now the subject of a live police investigation. 26. We asked if Mr Altman made any submission as to how the court should proceed in relation to the issue which he had raised of a possible contempt of court. Mr Altman said that he and his team had had little time to consider the issue, but submitted that the court should as a minimum “hear from Mr Marshall and Ms Page to see what they want to say about it.” 27. We agreed with that submission, but emphasised that it was a question of whether Mr Marshall and/or Ms Page wished to say anything about what was potentially a serious matter, which might have to be investigated. 28. Mr Marshall said that he wanted to say two things: first, on instructions, that it was not his instructing solicitors who had disclosed the document to Mr Page; and secondly, that it was Ms Page who had provided it to her brother Mr Page, who was unable to attend the hearing. He added that Ms Page recognised that it was not appropriate for her to have done so and that she unreservedly apologised. He concluded: “… more than that I would not wish to say at the moment.” 29. Ms Page then addressed the court, confirming that she did unreservedly apologise. She had been aware that her brother would not be able to attend the hearing, and was also aware that he would not publish anything “unless this document was fully enunciated in court”. She repeated her apology and said “it should have waited until today, but it was a pragmatic decision based on the fact that if there were to be no reporting restrictions, and if the document was fully mentioned in court today, then it would be a document which, potentially, could be reported upon.” 30. In answer to a question from the court, seeking clarification of the sequence of events, Ms Page added that the Clarke advice had been “discussed yesterday in anticipation of today’s hearing” and that she had not disclosed any other document to her brother. 31. There were many matters to deal with at the directions hearing, and many parties whose hearing had already been delayed by an hour. We therefore put further consideration of this matter back to 4pm, which gave Ms Page an opportunity to make appropriate arrangements if she wished someone to speak for her. We warned her that “amongst the matters to be considered are whether Her Majesty’s Attorney General should be invited to consider a possible contempt of court and/or whether there should be a report to a professional body.” 32. It is convenient to note here that later in the day, we varied our order to provide for a hearing to take place at 1015 on the following day, 19 November. We indicated that Mr Marshall, and any other party or counsel, could attend if they wished but were not required to do so. Ms Page at that stage helpfully indicated that she had spoken to her brother, who had told her that he would destroy the document. 33. The directions hearing proceeded. No reporting restrictions were imposed. Counsel for all of the appellants made submissions as to what directions should be given, both generally and in relation to individual cases. We indicated that the issue of whether Ground 2 could be argued, even if an appeal was not opposed on Ground 1, raised important questions of principle which should be determined before the end of term so that all parties would know the basis on which they should prepare for the full appeal hearing. Mr Marshall submitted that such a hearing should take place but that it would not be practical for it to do so before the end of term. Mr Marshall sought to make a submission about the significance of the Clarke advice, but was stopped by the court on the basis that it was not relevant to the question of whether the issues of principle should be considered at a separate hearing. 34. The directions given at the conclusion of the hearing included the following: i) The cases of all appellants whose appeals are uncontested on Ground 1, but contested on Ground 2, will be listed on 17 December 2020 (with a time estimate of one day) for the hearing of submissions on two questions of principle: Is each appellant entitled as of right to argue Ground 2? If not, on what principles should the court act in deciding whether to permit argument on Ground 2? ii) Any party who wishes to make submission at that hearing must not later than 4pm on 11 December 2020 file a skeleton argument. The court will invite HM Attorney General to consider appointing an advocate to the court to make submissions. iii) The prosecution must complete disclosure by 5 February 2021. iv) The appeals of all appellants, other than the three whose appeals are contested on both grounds, will be listed for final hearing on 22 March 2021, with the contested appeals of those three appellants to follow and the total time estimate to be 4-5 days. 35. On 19 November 2020 Ms Page attended. She was represented by Mr Bentwood. Her brother was also present. We understood that Mr Marshall did not wish to attend. 36. Mr Altman submitted that the court could if it wished deal with the matter summarily as a civil contempt. If so, the next stage would be for the allegation against Ms Page to be formulated, so that she could say whether she admitted it. 37. Mr Bentwood began his submissions by repeating Ms Page’s apology for her lapse of judgement, and for causing the appeal proceedings to be distracted by an extra issue. He then began to make submissions about the various routes open to the court. He was however interrupted when the court associate reported that he had received an email from Mr Marshall indicating that he wished to join the hearing via CVP: we now understand that Mr Marshall may have expected the hearing to start rather later than it did. We adjourned so that the necessary technical steps could be taken. After some minutes, we were informed that Mr Marshall no longer wished to attend. 38. Mr Bentwood resumed his submission that any potential contempt issue should be considered by a different constitution. He submitted that summary consideration of possible contempt would not be appropriate: although the factual matrix was “both relatively straightforward and admitted”, there was an issue of law which was not straightforward, as to whether Ms Page had been under any obligation not to disclose the Clarke advice, and whether paragraph 81 of the DMD could impose such an obligation if one did not otherwise exist. He referred to Mahon v Rahn [1998] QB 424 . He stated that Ms Page accepted that her error of judgement was a serious one, but emphasised that it was never her intention to make public something which would not otherwise have become public. He submitted that the Clarke advice would become public at some stage, though he accepted that a breach of undertaking – if in law there was an implied undertaking – could not retrospectively be validated. He submitted that the body best positioned to deal with the matter and, if necessary, to impose any sanction was the Bar Standards Board, to which Ms Page would refer herself. He spoke of the impact of that referral on her otherwise unblemished professional career. 39. We interpose to note that Ms Page subsequently withdrew from acting for these three appellants. 40. As Mr Altman was concluding his brief submissions in reply, the court was passed by the associate an email which had been sent at 1045 that morning by Detective Sergeant Broom, an officer in the Metropolitan Police Service who has been involved in the police investigation relevant to these appeal proceedings. DS Broom stated that Mr Marshall had sent a copy of the Clarke advice to her on the afternoon of 17 November 2020, saying - “This is what we filed with the court yesterday for the hearing tomorrow. I am confident you will find the advice and its conclusion very interesting.” DS Broom went on to state that Mr Marshall had sent a further copy of the Clarke advice to her at 0652 that morning, saying – “this document was referred to in court yesterday.” 41. There was a short adjournment to allow counsel time to consider this email. Mr Altman, acknowledging the need to be circumspect because Mr Marshall was not present, indicated that his instructing solicitors were in contact with the Metropolitan Police in relation to disclosure, which was being dealt with through a proper process. Mr Marshall’s voluntary provision of the Clarke advice to DS Broom, he submitted, was a breach of the implied undertaking – “But that may perhaps be for another day for the court to determine, for the reasons given, and Mr Marshall may have to find himself in the same position as Ms Page has.” 42. Emphasising the need for caution in Mr Marshall’s absence, we noted that he had not mentioned on 18 November that he had sent a copy of the Clarke advice to another third party the previous afternoon. Whilst the message which he sent to DS Broom hours before the present hearing was factually accurate, the Clarke advice had been referred to on 18 November because of the need to investigate the circumstances of its disclosure to Mr Page. 43. Mr Bentwood submitted that this potential added layer of complexity was a further reason why the court should not deal with matters summarily. 44. Mr Page, in response to questions from the court, stated that he had received the Clarke advice from his sister only in electronic form; that he had deleted it; and that he would make no use of what he had read in it unless and until a stage was reached at which any journalist could properly refer to it. He added that his sister had only let him see the Clarke advice on condition that he would not write about it unless it became public. 45. In the light of the submissions made by Mr Altman and Mr Bentwood, it was clear that there were issues as to whether or not counsel and solicitors who receive disclosure of unused material in criminal proceedings not governed by sections 17 and 18 of the CPIA come under any, and if so what, duty limiting the use they may properly make of that material, and as to the effectiveness or otherwise of disclosure being made under cover of a statements such as that contained in paragraph 81 of the DMD. We ruled: “That, in our view, is an issue which must be resolved by the court. If there be such a duty as the prosecution contend for, and if there be here a breach of it, then that would, on the face of it, be a civil contempt of court, which is a matter for the court. We are therefore unable to accept Mr Bentwood's submission that the court need take no action and may properly and sufficiently leave these questions to be dealt with by the Bar Standards Board.” 46. We therefore adjourned to a later hearing consideration of whether there had been a civil contempt of court, and whether any future proceedings should be heard by the same or a different constitution. We requested the assistance of the respondent in drafting a provisional formulation of the charge or charges against Ms Page and in seeking to agree with Mr Bentwood a summary of the relevant facts. We went on to indicate that we wished Mr Marshall to assist the court in relation to his emails to DS Broom. We wished that assistance to be given as soon as practicable, in part because of our concern for the position of the three appellants represented by Mr Marshall and Ms Page, who wanted to make submissions on the questions of principle which were to be considered on 17 December. We indicated that the nature of the next hearing would be to establish whether the court (be it this constitution or another) would thereafter be concerned with Ms Page alone or also with Mr Marshall. We suggested that in considering the formulation of a charge and statement of facts, the respondent would be able to work “with one eye to the possibility that there may be charges to be considered against two rather than one”. 47. On 23 November 2020 Mr Marshall sent a letter to the court in which he stated that he had provided the Clarke advice to DS Broom on 17 November 2020 because he considered it was right and in the interests of justice and the suppression of crime to do so and in anticipation that its contents would become part of the court record on 18 November. He said that he had initially thought that he would wait until after the hearing before sending the Clarke advice to DS Broom but had done so on 17 November “because of its seeming importance”. 48. The respondent drafted Particulars of Conduct against Ms Page, alleging that she had acted in breach of an undertaking implied at common law not to use the Clarke advice for any purposes other than the proper conduct of these appeal proceedings, and a draft summary of relevant facts. 49. At the hearing on 3 December, Mr Altman stated that the respondent on 18 November had brought matters to the attention of the court but had not made any application for committal for contempt. In the intervening period, all counsel and solicitors representing the appellants had given undertakings which sufficed to meet the respondent’s concerns as to any further inappropriate use of disclosed material. He suggested that the court might consider appointing fresh counsel to assist it in potential contempt proceedings before this or another constitution. 50. Mr Henry QC referred to Ms Page’s impressive professional record and personal character. He emphasised that she had given the Clarke advice to her brother purely to assist him to prepare an accurate and fair report of proceedings. She had acted mistakenly in giving the document to him, but she had done so in the knowledge that he would be bound by the court’s decision. 51. Mr Henry referred to rule 48 of the Criminal Procedure Rules, which, so far as is material for present purposes, provides – “GENERAL RULES When this Part applies 48.1. —(1) This Part applies where the court can deal with a person for conduct— (a) in contempt of court; or (b) in contravention of the legislation to which rules 48.5 and 48.9 refer. … CONTEMPT OF COURT BY OBSTRUCTION, DISRUPTION, ETC Initial procedure on obstruction, disruption, etc. 48.5. —(1) This rule applies where the court observes, or someone reports to the court— (a) in the Court of Appeal or the Crown Court, obstructive, disruptive, insulting or intimidating conduct, in the courtroom or in its vicinity, or otherwise immediately affecting the proceedings; (b) in the Crown Court, a contravention of— (i) section 3 of the Criminal Procedure (Attendance of Witnesses) Act 1965 (disobeying a witness summons), or (ii) section 20 of the Juries Act 1974 (disobeying a jury summons); (c) in a magistrates’ court, a contravention of— (i) section 97(4) of the Magistrates’ Courts Act 1980 (refusing to give evidence), or (ii) section 12 of the Contempt of Court Act 1981 (insulting or interrupting the court, etc.); (d) a contravention of section 9 of the Contempt of Court Act 1981 (without the court’s permission, recording the proceedings, etc.); or (e) any other conduct with which the court can deal as or as if it were, a criminal contempt of court, except failure to surrender to bail under section 6 of the Bail Act 1976 . … CONTEMPT OF COURT BY FAILURE TO COMPLY WITH COURT ORDER, ETC. Initial procedure on failure to comply with court order, etc 48.9. — (1) This rule applies where— (a) a party, or other person directly affected, alleges— (i) in the Crown Court, a failure to comply with an order to which applies rule 33.70 (compliance order, restraint order or ancillary order), rule 47.9 (certain investigation orders under the Police and Criminal Evidence Act 1984 , the Terrorism Act 2000, the Proceeds of Crime Act 2002 , the Proceeds of Crime Act 2002 (External Investigations) Order 2014 and the Extradition Act 2003 ), rule 47.41 (order for retention or return of property under section 59 of the Criminal Justice and Police Act 2001) or rule 47.58 (order for access under section 18 A of the Criminal Appeal Act 1995 ), (ii) in the Court of Appeal or the Crown Court, any other conduct with which that court can deal as a civil contempt of court, or (iii) in the Crown Court or a magistrates court, unauthorised use of disclosed prosecution material under section 17 of the Criminal Procedure and Investigations Act 1996 ; or (b) the court deals on its own initiative with conduct to which paragraph (1)(a) applies. (2) Such a party or person must— (a) apply in writing and serve the application on the court officer; and serve on the respondent— (i) the application, and (ii) notice of where and when the court will consider the allegation(not less than 10 business days after service). (3) The application must— (a) identify the respondent; (b) explain that it is an application for the respondent to be dealt with for contempt of court; (c) contain such particulars of the conduct in question as to make clear what is alleged against the respondent; and (d) include a notice warning the respondent that the court— (i) can impose imprisonment, or a fine, or both, for contempt of court, and (ii) may deal with the application in the respondent’s absence, if the respondent does not attend the hearing. (4) A court which acts on its own initiative under paragraph (1)(b) must— (a) arrange for the preparation of a written statement containing the same information as an application; and (b) arrange for the service on the respondent of— (i) that written statement, and (ii) notice of where and when the court will consider the allegation (not less than 10 business days after service).” 52. Mr Henry submitted that the respondent on 18 November had failed to assist the court, with the result that there had been confusion as to the nature of the suggested contempt and a failure to follow rule 48. The suggested contempt had first been raised by the respondent, not by the court of its own motion; but the respondent had failed to make the written application required by rule 48.9, and had then diverted the court into embarking upon a summary procedure under rule 48.5. From then on, there had been procedural unfairness: although the court had made clear that Ms Page did not have to say anything, it was difficult for her as a barrister to remain silent when addressed by the court. The safeguards to which she was entitled, namely her right to silence, right against self-incrimination and right not to give evidence, had gone by the board. Mr Henry referred to Douherty v Chief Constable of Essex Police [2019] EWCA Civ 55 , in which reference was made at [23] to a checklist set out by Theis J in family proceedings in the earlier case of re L (a child) [2016] EWCA Civ 173 . That checklist, he submitted, had been overlooked in the present case. The court, although of course not intending to be unfair, had in fact come to conclusions about Ms Page’s conduct on the basis of information which she provided in breach of her rights. Mr Henry submitted that any further hearing should be before a different constitution of the court. The present constitution should not conduct any investigation or play any further role. If the respondent wished to instigate contempt proceedings, it should do so in accordance with rule 48.9. Rule 48.5 is concerned with contempt in the face of the court, and had no application in the present case which is based (if at all) on a contempt arising out of a breach of undertaking. Any contempt of that kind would be a civil contempt. 53. In Mr Henry’s submission, what was said by the respondent on 18 November engaged rule 48.9(1)(a)(ii). In particular, he submitted, the manner in which Mr Altman had raised the matter amounted to “a party, or other person directly affected, alleg[ing] contempt”. The respondent could not now disavow that approach and leave matters to the court. It was only on 19 November that any steps were taken towards compliance with rule 48.9; but by that time, the procedural flaws on the previous day had caused irremediable prejudice to Ms Page. In re Yaxley-Lennon [2018] 1 WLR 5400 emphasised the need for procedural fairness, and In re Ian West [2015] 1 WLR 109 emphasised the importance of compliance with the Criminal Procedure Rules. In any future hearing, evidence of what was said by Ms Page and Mr Marshall before they were advised as to their rights should be excluded. 54. Mr Henry accepted that in principle the court had been entitled to ask questions in order to elucidate how the document had reached Mr Page, but he contended that there was a clear allegation of contempt and that accordingly no enquiry should have been made of Ms Page until she had been informed of the charge(s) she faced and had been able to take advice. 55. Mr Lawrence QC pointed out that since the last hearing, no application for committal for contempt had been initiated against Mr Marshall. He too submitted that a barrister in the position of Ms Page or Mr Marshall faced a difficulty: instinctively wishing to assist the court, but owing a duty to their clients and having a self-interest as soon as the matter of concern was raised. It would have been much better if the court had been taken immediately to rule 48, as that would have brought into focus the distinction between a potential summary procedure and the non-summary procedure which is mandatory in cases of civil contempt. As it was, no procedure complying with the Rules had been commenced against either Mr Marshall or Ms Page. 56. Mr Lawrence stated that he would not make any submissions about the facts of the matter: there might in future be properly formulated proceedings to which Mr Marshall would have an opportunity to respond. He submitted that the court should direct the respondent to decide whether it wished to initiate and prosecute an allegation under rule 48. The respondent was the aggrieved party, and it was for the respondent to decide whether it wished to embark upon a process in which an issue would arise as to whether any, and if so what, undertaking was to be implied in the circumstances of this case. He did not say that the court was debarred from initiating its own process, but on the authority of Harman and as a matter of good sense it should be left to the aggrieved party. If such a process was commenced by the respondent, it should be dealt with by a different constitution. If the court was minded to initiate contempt proceedings, it should not be done immediately because of the risk of jeopardising Mr Marshall’s ability to continue to represent the three appellants. Mr Lawrence added, however, that undue delay might give rise to an issue of abuse of process. 57. Mr Altman submitted in reply that although the interests of the respondent were engaged, the more important interest was the public interest in there being compliance with the implied undertaking. Further proceedings were therefore not a matter for the respondent, a private prosecutor. No process had been initiated against Mr Marshall, though the court could initiate such process if it wished. As to Ms Page, Mr Henry was wrong to suggest that the respondent had made an allegation against her on 18 November: all the respondent had done was to bring to the court’s attention what it knew at that time, as information not allegation. The court was therefore dealing with the matter of its own initiative under rule 48.9(1)(b). The court had asked for a draft to be prepared in accordance with rule 48.9(4), and that had been done; but no contempt proceedings had yet been commenced, and it was for the court to decide whether they should be. The court had been entitled to invite Mr Marshall and Ms Page to speak on 18 November, and had rightly told them that they did not have to say anything; but no one at that stage knew that they would both say it was Ms Page who had provided the document to her brother. The rights of Ms Page and Mr Marshall had been preserved. The checklist put forward by Theis J was appropriate in an application for committal, but the proceedings on 18 November were not such an application. 58. In our view, rule 48.9(1) does no more than specify the circumstances in which the rule as a whole applies. It is only when a party or other person directly affected makes an allegation of a kind particularised in paragraph (1) (a), or the court begins to deal on its own initiative with conduct of such a kind in accordance with paragraph (1)(b), that the requirements of rule 48.9(2) or rule 48.9(4) come into effect. Any other interpretation would render rule 48.9(1) unworkable: it would mean that as soon as a party, or the court, mentioned the relevant matter, it would already be too late to comply with the requirements of rule 48.9(2) or 48.9(4). It would also mean that the court would be prevented from taking any steps to enable it to make an informed decision as to what to do when told that a legally privileged document had been passed to a journalist. 59. At the time when the matter was first raised in court by Mr Altman, all that was known was that a document which, in accordance with the DMD, had been disclosed to the representatives of these appellants solely in connection with their conduct of the appeal proceedings, had been given or shown to a journalist, apparently by one of those representatives. 60. Mr Altman, in providing information to the court, went no further than stating that whichever legal representative gave the document to Mr Page had acted in breach of the DMD and of an undertaking implied at common law, and had arguably committed a contempt of court. In our view, the respondent did not thereby make an allegation within the meaning of rule 48.9(1)(a). 61. Nor, by our enquiring of Mr Marshall and Ms Page whether they wished to say anything, did the court begin to deal with the conduct of any person, within the meaning of rule 48.9(1)(b). Contrary to Mr Henry’s submission, we did not ask either Mr Marshall or Ms Page any question, other than enquiring whether they wished to say anything. Both Mr Marshall and Ms Page volunteered that it was the latter who had provided the document to Mr Page, that she recognised that she had been wrong to do so and that she apologised for doing so. Neither the respondent nor the court had known that Mr Marshall and Mr Page would say that. The matter was adjourned to the following day so that the question of possible contempt proceedings could be addressed at a time when Ms Page had an opportunity to be represented, but without delaying or derailing the directions hearing. 62. In those circumstances, there was no initiation of any contempt proceedings, whether by the respondent or by the court, on 18 November. 63. It should be noted that both Mr Henry and Mr Lawrence accepted that the court, faced as it was on 18 November with an issue which clearly needed to be addressed promptly, was entitled to make some enquiry into how the Clarke advice had come into the possession of Mr Page. Both asserted, rightly, the need for the court to proceed with caution; but both accepted that the court had made clear that neither Mr Marshall nor Ms Page was required to say anything if they did not wish to do so, and neither made any specific submission as to anything else which the court could or should have done in that regard. We understand the point they make about the difficult position of a barrister who is invited to assist the court and instinctively wishes to do so. We observe, however, that it was Ms Page’s conduct which gave rise to the situation in which that difficulty arose. 64. We accepted the submission that the respondent should on 18 November have referred the court to the provisions of rule 48. The fact that no such reference was made did not, however, impact on our decision that no contempt proceedings were initiated on 18 November. 65. Nor were any such proceedings initiated on 19 November. That hearing was listed as a matter of urgency so that Ms Page’s position could be considered without delaying the directions hearing. The unexpected arrival of DS Broom’s email introduced a new matter, which could not be set entirely aside merely because Mr Marshall was not present. If Mr Marshall had chosen to mention on 18 November that he had sent a copy of the Clarke advice to DS Broom, there would have been an opportunity to consider the matter in his presence. We rejected the suggestion that any finding was made against Mr Marshall in his absence. 66. It was in those circumstances that it became necessary to list, again as a matter of urgency, the further hearing on 3 December. We have indicated earlier in this judgment the reasons for the conclusions which we reached at that hearing. We add for completeness that, although nothing was said at the hearing on 3 December about whether Mr Marshall would or should continue to act for these three appellants, he subsequently informed the court that he had decided to withdraw from doing so. These appellants were therefore represented by fresh counsel at the hearing on 17 December, when their submission that they should be allowed to argue Ground 2 was successful.
{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["Between 2001 and 2013"], "ConvictOffence": ["theft", "false accounting"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["data not available"], "Sentence": ["terms of imprisonment."], "SentServe": ["data not available"], "WhatAncillary": ["Group Litigation Order"], "OffSex": ["her"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["sub-postmaster, sub-postmistress or Post Office employee"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Document", "records kept by the Post Office's Horizon accounting system,"], "DefEvidTypeTrial": ["abuse of the process of the court."], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellants"], "CoDefAccNum": ["forty-one persons (collectively, “the appellants”)"], "AppealAgainst": ["against conviction"], "AppealGround": ["his or her trial was an affront to the conscience of the court (“Ground 2”).", "abuse of the process of the court.", "a defendant could not have a fair trial (“Ground 1”)"], "SentGuideWhich": ["section 9 of the Criminal Appeal Act 1995,", "48 of the Criminal Procedure Rules"], "AppealOutcome": ["listed for final hearing on 22 March 2021, with the contested appeals of those three appellants to follow", "all further hearings must be before a different constitution."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["he subsequently informed the court that he had decided to withdraw", "We rejected the suggestion that any finding was made against Mr Marshall in his absence."]}
{"ConvCourtName": ["data not available"], "ConvictPleaDate": [["2001-01-01", "2013-01-01"]], "ConvictOffence": ["false accounting", "theft"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No", "Yes"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["data not available"], "Sentence": ["terms of imprisonment."], "SentServe": ["data not available"], "WhatAncillary": ["Group Litigation Order"], "OffSex": ["All Female"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Documentation", "Digital"], "DefEvidTypeTrial": ["abuse of the process of the court."], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["41"], "AppealAgainst": ["against conviction"], "AppealGround": ["abuse of the process of the court.", "his or her trial was an affront to the conscience of the court (“Ground 2”).", "a defendant could not have a fair trial (“Ground 1”)"], "SentGuideWhich": ["48 of the Criminal Procedure Rules", "section 9 of the Criminal Appeal Act 1995,"], "AppealOutcome": ["listed for final hearing on 22 March 2021, with the contested appeals of those three appellants to follow", "all further hearings must be before a different constitution."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["[representation]", "We rejected the suggestion that any finding was made against Mr Marshall in his absence."]}
449
WARNING: reporting restrictions apply to the contents transcribed in this document because the case concerned a sexual offence and involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION Neutral Citation Number: [2023] EWCA Crim 1679 CASE NO 202303546/A1 Royal Courts of Justice Strand London WC2A 2LL Friday, 8 December 2023 Before: LORD JUSTICE EDIS MR JUSTICE JEREMY BAKER SIR ROBIN SPENCER REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 REX V RGX __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MISS S GATES appeared on behalf of the Attorney General MR E HUGHES appeared on behalf of the Offender _________ J U D G M E N T 1. LORD JUSTICE EDIS: The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act . This judgment has been anonymised by the court to prevent any risk of identification of the victim. 2. This is an application by His Majesty's Solicitor General for leave to refer a sentence to this court under section 36 of the Criminal Justice Act 1988 for review on the grounds that it was unduly lenient. We give leave. 3. The sentences to which this application refers were imposed following the conviction of the offender which occurred on 21 July 2023 following a trial. Those convictions were for one count of assault by penetration of a child under 13 (count 1), three counts of sexual assault of a child under 13 (counts 2, 3 and 6), two counts of rape of a child under 13 (counts 4 and 5) and two counts of sexual activity with a child (counts 7 and 8). 4. Sentence was imposed on 8 September 2023 at the Crown Court. The total sentence was a term of 15 years custodial sentence plus a one-year extended licence, pursuant to section 278 of the Sentencing Act 2020 . That form of sentence, a sentence for offenders of particular concern, was required in relation to counts 1, 4 and 5. Originally it had been imposed only in relation to count 5 in that form but subsequently the judge corrected the sentence without having a further hearing in relation to counts 1 and 4 to impose the terms in the appropriate form. An issue had arisen for consideration as to whether time for bringing this Reference ran from the time of the amendment of the sentence. It is now agreed that time did run from that point, which means that the Reference was lodged in time and we have jurisdiction to consider it. 5. The way in which the sentence was constructed as between the different counts is as follows. In relation to count 5, an offence of rape of a child under 13, the judge imposed the term of 15 years' imprisonment with the extended licence of one year. All other sentences were ordered to run concurrently, which means that that sentence on count 5 was intended to reflect the totality of all the offending of which the offender had been convicted. It was therefore necessary for the judge to impose a term which reflected not only the offending captured within count 5 but also all of the other offending. The issue for us is whether she failed to do that. 6. In relation to count 1, assault of a child under 13 by penetration, the sentence was eight years' imprisonment with an extended licence of one year. In relation to count 2, sexual assault of the same child under 13, the sentence was four years' imprisonment concurrently. Count 3, sexual assault of the same victim, six years' imprisonment concurrently. Count 4, rape of the same victim, 12 years' imprisonment with an extended licence of one year. In relation to counts 6 and 7, convictions for sexual assault and sexual activity with a child respectively, concurrent terms of four years' imprisonment were imposed and in relation to count 8, a further offence of sexual activity with a child family member, a sentence of six years concurrently was imposed. 7. In addition, the necessary orders following convictions of this kind were made in relation to notification, a restraining order and a Sexual Harm Prevention Order and nothing now turns on those. The issue with which we are concerned relates to the length of the sentence for an offender of particular concern imposed in relation to the offences of rape. 8. RGX is now 36 years old. He was the step-father of the victim, being in a relationship with her mother. The offending began in 2007 and lasted until 2016. At the time when it began the victim was seven years old. The offender at that point was 21 and was 29 when the offending finished. The offending did not finish because he started to exercise any form of self-control or restraint; it finished because his relationship with the child's mother came to an end. 9. The abuse began when the offender was looking after the victim in this family setting when her mother had gone out for the evening. The first offence, which became count 1, involved him putting his hands down her trousers while they were lying together on the sofa in the family home and digitally penetrating her vagina. She was at that time seven years old. 10. There was then a gap in offending of a significant period of time before a series of events occurred when he was taking the victim out in the car for various reasons. This happened regularly and the further offending happened on those occasions, perhaps (she thought) once a fortnight or so. There were very frequent occasions when he would make her masturbate him while they were in the car, which he would park in a garage area or which he would drive to a secluded place so that this could happen. He would then, during these events, take over from her, masturbating himself until he ejaculated. There was an occasion, when the victim was still at primary school, when after an argument with her brother she found herself locked in a bedroom with the offender and he made her masturbate him. This happened several times in the home and that became count 2, which reflected the first occasion and count 3 which was a multiple incident count to reflect at least 10 further occasions when this behaviour occurred when she was between the ages of 10 and 13. 11. On three other occasions when she was still under the age of 13 he made her perform oral sex on him. He would pull her head down and insert his penis into her mouth. These incidents occurred in the car when it was parked in an alleyway near a supermarket. The location was of course chosen by him so that he could do what he wanted to do without any risk of being disturbed and that involved isolating her away from any source of help and then attacking her in the way we have described. She attempted to resist and she said that because she was not cooperating with him on these occasions he would eventually desist and then masturbate himself to ejaculation. Count 4 was intended to reflect the first of these three occasions and count 5 was a multiple incident count involving the other two. There were therefore three offences of oral rape for which sentence had to be imposed and those offences occurred against the context of the conduct which we have already described and the further conduct which was reflected in counts 6, 7 and 8 on the indictment. 12. Count 6 related to a single incident when he touched her private parts and count 7 related to a single incident of masturbation once she had turned 13, designed to reflect the fact that the offending continued after that birthday until she was 16. Count 8 is a multiple incident count in relation to sexual activity with a child family member. It covered at least 10 incidents of masturbation of him by her when she was between the ages of 13 and 16. 13. Eventually she told people what had happened. The matter was reported to the police who carried out an investigation with the result that we have already described. 14. It is, we think, unnecessary to set out anything further by way of detail in relation to these events. The summary we have given sufficiently describes the crimes. 15. It is necessary to say something about the family circumstances because of the way the judge dealt with the issue of abuse of trust. This was a family in which the offender was treated by his victim as though he were her father. He was trusted to look after her when her mother was out. He was also trusted to look after her siblings, other children in the family, and in all respects during the time in which this offending was happening acting as a father. As the judge was later to say, this behaviour involved, in her expression, “letting the victim down as a dad”. 16. When he was arrested and interviewed he denied the allegations. There were some text messages which he had sent to the victim in which there were some apologies. He denied sending them, which required an investigation into cell site material which showed that he had in fact sent them despite those denials. 17. So far as the offender himself is concerned, he has no relevant previous experience of the criminal justice system. He has a caution and a warning for other entirely different kinds of offending a very long time ago. 18. The reason why there was a gap between conviction and sentence was that the court, very rightly, needed to obtain a pre-sentence report. The pre-sentence report revealed that notwithstanding his conviction by the jury the offender continued to deny the offending and denied any sexual attraction to children. He said that the victim was lying and suggested a motive. All of this led the author of the report to assess the risk of further sexual offending as high and that risk was a risk of further sexual offending against children. 19. There were character references before the court which we have seen and read. They describe him as a loving and caring person to his own children and step-children. The victim was one of those step-children. The character references obviously speak well of him in his role as a father but, with respect to the way the judge dealt with the matter, make it entirely clear that this offender was in a position of trust so far as those children are concerned, and in particular so far as the victim was concerned. 20. The victim's life has been very seriously damaged by this conduct in ways which cannot all be foreseen. The court hopes that it will transpire that she is able to make a recovery and that she will not find herself suffering life-long trauma as a result of her experiences as a child. Although that hope is a genuine one, no one can confidently predict that it will be realised. The trauma that she suffered was very severe. She is in some ways alienated from her family. She describes hating herself when she was a child but not really feeling the full impact of it until she began a relationship when she was 16 years old. That relationship did not prosper because she was suffering by now with low moods and angry outbursts. She was prescribed medication to assist her mood but she did not take it. In February 2018 she was in hospital as a result of an attempt on her own life. She felt dirty and alone. She was seriously impacted by the proceedings and further traumatised when she knew that the offender was pleading not guilty and that she would have to be involved in a trial. This caused further depressive episodes for which she received counselling and she began to suffer panic attacks. Her siblings blamed her for what had happened to their father. She is now attempting to rebuild her life and to make a recovery from the disaster which afflicted her childhood. 21. There is no dispute between the parties about the proper approach to sentence in this case. Before us it is agreed that for guideline purposes the case should properly be put into Category 2A in relation to the offences of rape. That is because the victim suffered severe psychological harm as we have already described. It is also because this was a very clear case of an abuse of trust. There was also an element of grooming and a degree of planning. The offender arranged his life and his victim's life so that he was able to have sexual access to her on these very many occasions. 22. A Category 2A offence of rape of a child under 13 on its own as a single offence would attract a starting point of 13 years' custody and the guideline prescribes a range of 11 to 17 years. There were aggravating factors to be taken into account after that categorisation has been arrived at. There were some attempts to stop the child reporting the crimes and there was repeated ejaculation (the offender sometimes disposed of any clothing which contained evidence of that). The locations of the offending operated as aggravating features. Most of it occurred in a car which had been parked in a secluded and isolated place, chosen so that the child could not summon help. The rest of the offending happened in her home where she was entitled to feel safe. 23. The exercise then which the judge had to address was first to select the correct category and the correct starting point. Then, having arrived at that, which she did correctly, her task was to ensure that that starting point and range was adjusted to reflect the fact that this was not a single offence of rape; there were three offences of rape, there was a further offence of digital penetration and there were multiple offences (too numerous to count) of the other kind of sexual activity, namely masturbation by her of him resulting in ejaculation. All of that occurred over a very long time with the consequences for her which we have described. 24. There was some mitigation. He has no previous offending of this kind, although the duration of this offending on this indictment deprives that of much of its force; and the consequences for the offender and the rest of his family have been severe. 25. The Solicitor General submits that in adjusting the sentence from 13 to 15 years to reflect the overall totality of what occurred, the judge seriously undervalued that totality. That error, the Solicitor General says, was compounded by the judge's approach to the issue of trust which was misconceived. In that respect the judge suggested that legally this conduct may not have been in breach of trust, although in the same sentence she used the expression that we have already cited, namely her finding that the offender had let the victim down "as a dad". She said:- “It wasn’t necessarily a breach of trust within the legal definition, but you let her down as a dad, and she said to the jury that she still loved you and always would love you as a dad, but she couldn’t understand why this had happened and why you had let her down in this way.” 26. The judge appears to have been led towards that conclusion by her consideration of some previous decisions of this court which she may not have correctly interpreted. Those decisions make the point that not every familial relationship involves trust in the sense of that word used in the guideline. It is a matter of fact whether such a relationship existed or not. The position in fact is very simple and very clear: if a father or step-father, in the circumstances we have described, takes advantage of that relationship in order to perpetrate a long series of offences against a child for whom he is a carer, he is acting in gross breach of trust. That is not a concept which requires much legal elaboration. For those reasons the Solicitor General submits that the judge found herself imposing a sentence which was significantly shorter than it would have been. 27. In very helpful written and oral submissions, Mr Hughes, who appeared before the judge on behalf of the offender and who has persuasively argued his case before us this morning, draws our attention to the fact that the judge did correctly categorise the case for the purpose of the guideline, did refer to all the relevant aggravating features and that the sentence was one which was properly open to her as being within the range that a reasonable judge could apply. 28. While we are grateful for those submissions, we are unable to accept them. In the judgment of this court the conduct that we have described of which this offender was convicted was offending of the utmost gravity which has caused catastrophic harm to a child whose current position and future has been placed in grave peril. 29. In our judgment, the starting point of 13 years for a single offence and range which extends for a single offence up to 17 years required a much more substantial adjustment than the judge thought appropriate. Therefore, in relation to the two counts of rape, reflecting three offences of rape, we will quash the sentences imposed by the judge and impose in their place a sentence for an offender of particular concern of imprisonment of 19 years concurrently on each of those two counts, with a one year extended licence, a total period of 20 years. The other sentences imposed by the judge will not be amended and will all run concurrently with that sentence which we now impose. 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]
{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["21 July 2023"], "ConvictOffence": ["assault by penetration of a child under 13", "sexual assault of a child under 13", "rape of a child under 13", "sexual activity with a child"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["data not available"], "Sentence": ["15 years custodial sentence plus a one-year extended licence"], "SentServe": ["concurrently"], "WhatAncillary": ["exual Harm Prevention Order"], "OffSex": ["He"], "OffAgeOffence": ["offender at that point was 21"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["family home"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["acting as a father", "step-father of the victim"], "VictimType": ["the victim"], "VicNum": ["the victim,"], "VicSex": ["her"], "VicAgeOffence": ["victim was seven years old"], "VicJobOffence": ["victim was seven years old."], "VicHomeOffence": ["family home"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["told people", "text messages"], "DefEvidTypeTrial": ["He denied"], "PreSentReport": ["risk of further sexual offending as high"], "AggFactSent": ["degree of planning", "grooming", "severe psychological harm", "locations of the offending", "abuse of trust"], "MitFactSent": ["character references", "no previous offending"], "VicImpactStatement": ["data not available"], "Appellant": ["ATTORNEY GENERAL"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["grounds that it was unduly lenient"], "AppealGround": ["grounds that it was unduly lenient"], "SentGuideWhich": ["Sexual Offences (Amendment) Act 1992", "Sentencing Act 2020", "totality"], "AppealOutcome": ["quash the sentences", "impose in their place a sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["offending of the utmost gravity which has caused catastrophic harm"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["2023-07-21"], "ConvictOffence": ["sexual activity with a child", "rape of a child under 13", "sexual assault of a child under 13", "assault by penetration of a child under 13"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["data not available"], "Sentence": ["15 years custodial sentence plus a one-year extended licence"], "SentServe": ["Concurrently"], "WhatAncillary": ["exual Harm Prevention Order"], "OffSex": ["All Male"], "OffAgeOffence": ["21"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Female"], "VicAgeOffence": ["7"], "VicJobOffence": ["Child"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Digital", "Victim testimony"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["High risk of reoffending"], "AggFactSent": ["locations of the offending", "degree of planning", "grooming", "severe psychological harm", "abuse of trust"], "MitFactSent": ["no previous offending", "character references"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Attorney General"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Sentence (is unduly lenient)"], "AppealGround": ["grounds that it was unduly lenient"], "SentGuideWhich": ["totality", "Sentencing Act 2020", "Sexual Offences (Amendment) Act 1992"], "AppealOutcome": ["impose in their place a sentence", "quash the sentences"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["offending of the utmost gravity which has caused catastrophic harm"], "ReasonDismiss": ["data not available"]}
348
No. 2002/03164/R3, 2002/03169/R3, 2002/03071/R3 2002/03173/R3, 2002/03176/R3, 2002/03178/R3 2002/03179/R3, 2002/03181/R3, 2002/02182/R3 2002/03408/R3 & 2002/03402/R3 Neutral Citation Number: [2003] EWCA Crim 636 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Friday 21 February 2003 B e f o r e: LORD JUSTICE KENNEDY MR JUSTICE CRANE and MR JUSTICE McCOMBE _______________ ATTORNEY GENERAL'S REFERENCE Nos. 58,59,60,61,62,63,64,65,66 of 2002 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 _______________ R E G I N A - v - WARREN COUDJOE GREGORY MARK DAY MICHAEL RYAN GORDON DOUGLAS MARLEY McGLACKEN MARK SIMONS STEFAN ANTONIO PROVERBS TROY SCOTT O'TOO DOUGLAS JUNIOR THORNE MOSES BOAKYE __________________ Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4A Telephone No: 020-7421 4040 (Official Shorthand Writers to the Court) __________________ J U D G M E N T A P P E A R A N C E S: THE ATTORNEY GENERAL (LORD GOLDSMITH) and MR B ALTMAN appeared on behalf of THE CROWN MR M GEORGE appeared on behalf of THE OFFENDER COUDJOE MR A EYERS appeared on behalf of THE OFFENDER DAY MR M GEORGE appeared on behalf of THE OFFENDER GORDON MR M LAVERY appeared on behalf of THE OFFENDER McGLACKEN MR M FIREMAN appeared on behalf of THE OFFENDER SIMONS MR S JAMES appeared on behalf of THE OFFENDER PROVERBS MISS S J KLONIN appeared on behalf of THE OFFENDER O'TOO MR S CSOKA appeared on behalf of THE OFFENDER THORNE MR D TOAL appeared on behalf of THE OFFENDER BOAKYE Friday 21 February 2003 LORD JUSTICE KENNEDY: 1. Her Majesty's Attorney General seeks the leave of this court to refer to the court sentences passed on a number of offenders which he considers to be unduly lenient. We grant that leave. 2. The offenders are Gregory Mark Day, who is 25 years of age, having been born on 14 September 1977; Warren Coudjoe, who is 21 years of age, having been born on 15 April 1981; Michael Ryan Gordon, who is 21 years of age, having been born on 14 July 1981; Douglas Marley McGlacken, who is 17 years of age, having been born on 4 July 1985; Douglas Junior Thorne, who is 25 years of age, having been born on 6 January 1977; Troy Scott O'Too, who is 18 years of age, having been born on 17 April 1983; Moses Boakye, who is 22 years of age, having been born on 23 November 1980; Mark Simons, who is 23 years of age, having been born on 28 June 1979; and finally, Stefan Antonio Proverbs, who is 23 years of age, having been born on 15 February 1980. 3. The indictment on which they appeared in the Crown Court contained a number of counts. An offender named Pitt alone faced allegations of attempted murder (counts 1 - 3 of the indictment) and murder (counts 4 and 5). Pitt and the remaining offenders whom we have named faced allegations of conspiracy to possess firearms and ammunition with intent to endanger life (count 6), and conspiracy to supply controlled drugs of class A and class B, namely heroin, crack cocaine and cannabis (count 7 in the indictment). 4. They were in each case convicted or pleaded guilty to the offences with which they were charged. They were sentenced as follows: in the case of Day, to seven years' imprisonment; in the case of Coudjoe to six years' imprisonment; in the case of Gordon, to nine years' detention in a young offender institution; in the case of McGlacken, to four-and-a-half years' detention; in the case of Thorne, to eight years' imprisonment; in the case of O'Too, to five-and-a-half years' detention in a young offender institution; in the case of Boakye, to eight years' imprisonment; in the case of Simons, to seven-and-a-half years' imprisonment; and in the case of Proverbs to six years' imprisonment. 5. In summary, the offenders were members of a gang known as the “Pit Bull Crew” whose business was the very regular retail supply of controlled drugs, including heroin, crack cocaine and cocaine, to customers within the gang's territory in Longsight in south east Manchester. Members of the gang would carry loaded firearms ostensibly for their own protection which were stored in safe houses ready and available for them to use. The safe houses would also be locations used by the gang to cut and prepare drugs for distribution. The firearms were an integral part of the drug-supply network. Members of the gang would not only carry them for their own protection but also to enforce the gang's territorial claims against rival gangs. On the occasions when the gang carried loaded weapons for use against their rivals, they dressed in dark clothing and wore balaclavas to conceal their identity, and they wore bullet-proof vests for self-protection. Also members of the gang would customarily wear golf-type gloves on their gun hand in order to prevent the transfer of fingerprints or DNA. 6. The conspiracies lasted from October 1999 to December 2000. During that period there were a number of shootings in the area and elsewhere as tensions rose between the offenders' gang and another local gang. This was particularly so in July and August 2002, and reached a peak in September 2000 when there were three attempted killings, of which Pitt was convicted, and two actual deaths, in relation to one of which he was convicted of the offence of murder. All of those offences involved the use of firearms. 7. The Pit Bull Crew was formed in 1986 by Thomas Pitt, who was then 19 years of age. It was not active until October 1999 because its founder was in prison. It then quickly acquired a .25 Spanish Bronco handgun which Pitt regularly required his girlfriend, Jodhi Bell, to hide in her underwear and to produce when necessary. She also carried drugs in the same way. They distributed drugs in the area to which we have referred. On 5 August 2000, that handgun was discharged when Daniel Grant was shot. On 10 August 2000, that same gun was used again in Etruria Close when a taxi was caught in cross- fire. On 15 September 2000, the police recovered that gun from a flat in Bickerdike Court which was rented as Thomas Ramsey. It had previously been regarded as a safe house for the purposes of the gang. 8. From an early stage trusted members of the gang were said to be the offender Day, Gordon (who was Pitt's stepbrother), and Boakye. The business of the gang was undoubtedly the selling of drugs 24 hours a day, seven days a week. Pitt bought the drugs and he and the other senior members of the gang distributed them to junior members who sold the drugs on the street. Pitt himself habitually wore a bullet-proof vest, primarily no doubt because of the risk of being attacked by members of other gangs such as the “Longsight Crew”. 9. Within the Pit Bull Crew discipline was maintained by terror. In January or February 2000, at 24 Lindleywood Road, Day produced a gun and put it to the head of Leanne Willis who was there with other members of the Pit Bull Crew. On another occasion Sadie Hughes took a firearm into Manchester and Day contacted her and told her to bring it home. 10. Sadie Hughes met Pitt in about February 2000. Thereafter during her association with the gang she saw a number of firearms: the .25 handgun to which we have already referred; an MAC10 machine gun, a “cowboy” gun and perhaps two other guns. Pitt, Thorne and Coudjoe made crack cocaine at her flat. Other gang members were present when heroin was cut up and bagged there. It was her mother who sold to Pitt the “cowboy” gun which she found in a derelict yard in June 2000. Day was present at the time of that sale. 11. Sadie Hughes sold drugs with O'Too over a number of weeks from a safe house in Levenshulme. Having initially sold drugs for Pitt, she then sold them for another senior member of the gang, Boakye. She carried guns to Bickerdike Court for Pitt. When she arrived there other members of the gang would be present. She and Jodhi Bell had guns and drugs at her flat at 176 Plymouth Grove. Sadie Hughes recalled Mensah coming round with the “cowboy” gun, a .357 Smith & Wesson revolver, and taking bullets out and playing with them. He had been a founding member of the gang in 1996 in prison. When released from prison in July 2000, he was brought up to date by Day on the ongoing feud with the Longsight Crew. By that time there had been a number of tit-for-tat shootings between the rival gangs in the early months of 2000, with gang members on both sides being injured. 12. On 23 July 2000, Mensah and Day met Pitt and Ramsey, another gang member, and Ramsey shot a man named Anthony Bridges in the legs with a shotgun, probably a sawn-off shotgun recovered on 12 November 2000 from 5 Mount Road, Gorton, an address associated with Thorne, who had concealed that weapon there. That night, 23 July 2000, Mensah was at a party when Gordon produced a Nino 9mm handgun and savagely beat another youth with the butt of that gun before riding off on a bicycle and firing the gun in the air. 13. Later in July Mensah was present when Pitt first threatened, and then fired, six or seven shots at Daniel Grant as he tried to escape. Grant was hit five times but survived. On occasions Mensah was told by Pitt to fire at members of the rival gang or those with whom Pitt was in dispute. On one occasion Mensah and Ramsey were told to ambush a man named Eccleston and kill him. Both were armed, but when Eccleston appeared Mensah told Ramsey not to fire because of the position of closed-circuit television cameras. 14. In September 2000, Mensah and Simons were in a car driven by Pitt. They found a car carrying members of the Longsight Crew. Pitt told Mensah to fire at the occupants as they drove past. Mensah made as if to do so, but then said his gun had jammed -- much to the annoyance of Pitt. 15. On another occasion Gordon told Ramsey to leave a safe house on Elgar Street with the 9mm Nino gun which he knew to be “hot”, to avoid the police who were in the area, but to shoot at police officers if he saw them. On 3 September 2000, Devon Bell, a leading member of the Longsight Crew, was shot by Pitt and Thorne who caught him off guard in Langport Avenue. A number of shots were fired from the 9mm Nino gun. Bell was treated in hospital, but made no complaint. 16. On 4 September 2000, members of the Longsight Crew responded. They entered Pit Bull Crew territory. Pit Bull Crew members were at O'Too's home at 22 Giles Street, off Northmoor Road. When they heard of the invasion, Pitt, Thorne and Mensah left to seek a confrontation. All three were armed: Thorne with the 9mm Nino, Pitt with the MAC10 machine gun, and Mensah with the .357 Smith & Wesson revolver. The two groups wearing dark clothing and riding mountain bikes converged on Northmoor Road and shots were fired. One bullet hit the front window of a house. A spent cartridge case later recovered showed that the 9mm Nino and two Tokarev handguns belonging to the Longsight Crew had been fired. O'Too was later given the Smith & Wesson revolver by Mensah and told to take to it Pitt. 17. On 9 September 2000, there was a confrontation between the gangs outside Altcourse Prison where some gang members were held on remand. At about 9.45pm Pitt, armed with the machine gun, came across two Longsight Crew members sitting in a car in Fernbrook Close. He apparently tried to fire at them, but the mechanism jammed. They drove off. He rode around the corner and fired at two other Longsight Crew members, Gary Riley and Marcus Greenridge. Marcus Greenridge died. Thus Pitt faced three counts of attempted murder and one count of murder. 18. On 13 September 2000, Stephen Roberts, a Longsight Crew member, was being beaten in the car park of a West Indian Centre by of members of yet another gang, the “Gooch Close Gang”, when Pitt, Thorne and Mensah took over. Gordon and Pitt bundled Roberts into the back of Day's car and then with the other members of the Pit Bull Crew drove to Crowcroft Park. Roberts, already badly injured, was frog-marched to the middle of the park, where Pitt took out the revolver, unloaded it, loaded it with one bullet, and then proceeded to play “Russian Roulette”, spinning the chamber, putting the gun against Roberts' head, and asking, “Is this your time?” before pulling the trigger which, fortunately, clicked on each occasion. 19. Roberts was then taken to another corner of the park, stripped naked and beaten with tubing and hit with bricks. Gordon threatened to place his foot on Roberts' throat whilst he lay defenceless on the ground, and said, “That will be the end of him”. But he was allowed to live and to return to his gang as a warning to fellow members. 20. On 15 September 2000, the police raided Ramsey's flat at Bickerdike Court. They recovered the Spanish Bronco handgun, a .357 round of ammunition and other items. They left a copy of the search warrant at the flat. Members of the gang broke into the flat on 18 September and found the search warrant which was shown to Pitt. Ramsey was called to account before Pitt, Simons, Thorne, Gordon and Boakye. Ramsey, according to Mensah, was beaten by Pitt, but there were no signs of injury to his face at post-mortem examination. 21. On 19 September, the following day, Ramsey was shot dead. The weapon used was the MAC10 used in the shooting of Marcus Greenridge on 9 September. A local resident saw two males riding off on mountain bikes. The search warrant was recovered from underneath the outstretched hand of Ramsey. Pitt was charged with, but was acquitted of, that murder. 22. On 20 September 2000, a young woman named Melanie Barton and her boyfriend, who were both heroin addicts, saw Gordon and another young man in the kitchen at 17 Stansbrook Street in Levenshulme, bagging up guns. 23. On 22 September, Pitt and other senior gang members, Simons, Thorne, Boakye, Gordon and Mensah, travelled to Birmingham to meet a Birmingham gang leader called “Fitzy”, who was Simons' cousin. The purpose of that trip was to discuss inter-city and inter-gang co-operation. Fitzy required ammunition for a 9mm handgun. It was agreed that Pitt would provide the ammunition. However, on the following day Pitt was driving his car when he was ambushed by the Longsight Crew. Shots were fired. One of the weapons used on that occasion was the Tokarev handgun used in the Northmoor Road shooting on 4 September. Pitt was struck in the leg. He was able to get to the Manchester Royal Infirmary and was detained for treatment. In his absence, on 24 and 26 September, Boakye, who had assumed leadership of the gang, Gordon, Simons, Mensah and Thorne, were involved in swapping the 9mm Nino handgun with Fitzy for a Makarov handgun and a Webley & Scott .38 revolver. Those handguns were later recovered from 40 Letchworth Street, Moss Side, the address which Mensah shared with his girlfriend, and from 18 Parkin Street, Longsight, the home address of Sandra Thorne, who was the cousin of the offender, Douglas Thorne. 24. On 27 September 2000, Boakye, Gordon, Simons and Mensah went to London to replenish their stocks of cocaine and heroin. Boakye made contact with a supplier in Hackney and, according to Mensah, the senior gang members put together £7,000 - £8,000 in order to purchase a quarter kilo of cocaine. 25. On the following day, 28 September, Mensah and his girlfriend were arrested at 40 Letchworth Street. The shootings, however, continued. On 5 October, a Longsight Crew member, Phipps, was shot in the grounds of St Clement's School, Openshaw. The weapon used on that occasion was the Webley & Scott revolver. 26. On 11 October 2000, just before midnight, a taxi driver, Mr Butt, was robbed at gunpoint, having gone to 68 Parkin Street and collected two men and two women. One of the men was said to be McGlacken, but McGlacken has disputed that he was in fact involved. When Butt informed his passengers of the fare, one of them produced a gun and put it to the back of the driver's head. They left the taxi without paying and also left behind them on the seat a .38 Smith & Wesson bulleted cartridge. Police also recovered from the taxi a plastic bag containing 18 snap bags containing 3.76 grammes of heroine. The plastic bag was scientifically linked, it was said, to McGlacken. The next day Mr Butt's car keys were recovered from McGlacken who asserted that he had obtained them from someone else. 27. Thereafter the offenders were arrested and searches carried out at properties connected with them and persons with whom they were associated. The Spanish Bronco was recovered on 15 September from Bickerdike Court, the address in Ramsey's name. Pitt's DNA was on the trigger and slide grip of the firearm. That firearm was a prohibited weapon. The Webley & Scott .38 revolver was recovered on 21 November from 18 Parkin Street, the home address of Sandra Thorne, Douglas Thorne's cousin. Proverbs' DNA profile was said to match DNA recovered from that revolver. 28. The .357 Smith & Wesson revolver was recovered from the rear of Eskdale House, Longsight, when police chased Proverbs and Thorne from a taxi. That gun was loaded with ammunition when discovered. 29. The 9mm Makarov pistol was recovered on 28 September from 40 Letchworth Street during Mensah's arrest. It was also found to be loaded. That firearm was a prohibited firearm within the terms of the 1968 Act. The bulleted cartridge found inside the firearm was prohibited ammunition under the terms of the Act. 30. A sawn-off Loekler Blitz shotgun was recovered on 12 November 2000 from 5 Mount Road, Gorton, an address linked to Douglas Thorne. DNA recovered from the shotgun matched Proverbs' profile. That firearm also was a prohibited weapon. 31. A Tokarev handgun was recovered from the body of Marcus Greenridge on 9 September. 32. The MAC10 machine gun and the 9mm Nino handgun were never recovered. 33. During searches at the home of McGlacken at 68 Parkin Street, Longsight, on 25 July, 12 October and 30 October 2000, police recovered 24 plastic snap bags, 55 shotgun cartridges, a black balaclava and body armour. The body armour was found to contain gunshot residue and bore two areas of firearm-related damage, each typical of that produced by the discharge of a shot cartridge. 34. On 30 July 2000, during a search of Coudjoe, police recovered 2.62 grammes of heroin at 42% purity with a street value of between £100 and £260, nine self-sealed plastic bags containing heroin with a total weight of 1.13 grammes at 41% purity and a street value of £100, a self-seal bag containing 14 clingfilm packages containing crack cocaine, four of which weighed 84 grammes at a purity of 56%, six of which weighed 1.79 grammes at a purity of 54%, and four of which weighed .84 grammes at a purity of 73% with a combined value of between £210 and £280. 35. On 3 August 2000, Coudjoe was arrested on suspicion of possessing controlled drugs with intent to supply. Police recovered from him a bag containing .95mg of heroin with a street value of £10, six bags containing clingfilm wraps of crack cocaine with a total weight of 1.10 grammes and a street value of between £100 and £120, and £255 in cash. 36. In addition to the finding of the Spanish .25 Bronco pistol during the search of 64 Bickerdike Court on 15 September, police recovered a magazine for the pistol, a Magnum .357 revolver cartridge, quantities of cash, kitchen scales and golf gloves. 37. On 28 September 2000, in addition to the Makarov pistol, police also recovered from 40 Letchworth Street (Mensah's address) body armour and 14 bags of crack cocaine hidden in a sugar pot. The cocaine had a weight of 3.5 grammes with a purity of 38%. Police also recovered drugs paraphernalia such as bags and scales. Gunshot residue was detected on the body armour. 38. On 11 November 2000, in addition to the recovery of the loaded Smith & Wesson revolver, police recovered a black balaclava and 55 grammes of cannabis with a street value of £275. 39. On the same day police recovered from 5 Mount Road, Gorton, assorted shotgun cartridges, 9mm bulleted cartridges and body armour, and from 18 Parkin Street (Sarah Thorne's address), six 9mm Luger rounds of ammunition and body armour. 40. On 15 November 2000, police arrested Boakye at 62 Levenshulme Road, Manchester. Police recovered from him a self-seal bag containing 6.6 grammes of heroin with a street value of between £240 and £620, a clingfilm package containing 2.97 grammes of cocaine with a value of between £120 and £300, a knotted plastic bag containing 6.64 grammes of cocaine with a value of £660, a bag containing 14 similar knotted plastic packages containing a total of 4.8 grammes of heroin with a value of between £200 and £480, and a self-seal bag containing ten further knotted bags containing plastic packages with a total of 1.56 grammes of heroin with a value of between £60 and £150. 41. On 22 November 2000, Pitt and Gordon were arrested. Gunshot residue was found in Gordon's tracksuit bottoms and on a cagoule worn by him. A pair of combat trousers removed from Pitt was discovered to have traces of gunshot residue. 42. During a search of 2 Southsea Street, Gorton, on 10 January 2001, which was Gordon's home address, police recovered over £3,000 in cash. 43. A number of radio scanners and balaclavas were recovered by police from addresses associated with the offenders. 44. There were, it is said on behalf of the Attorney General, a number of aggravating features which were common to all the offenders. The conspiracy offence alleged in count 6 reflected the most serious offending of its kind, namely prolonged and premeditated violence with the use of firearms. The firearms used by the offenders were used ruthlessly to protect their drugs business and to enforce their reign. Those weapons were in some instances prohibited under the terms of the 1968 Act and had no useful purpose. The offenders habitually carried loaded firearms with them in public places with the express purpose of using them to endanger life, either for their own protection or, as often, to discharge them at rival gang members with whom they were in conflict. Two individuals were in fact killed, one by Pitt, by the use of the gang's weaponry, and attempts were made by Pitt on the lives of others, inflicting serious injury. Others were threatened or struck with weapons belonging to the gang. Weapons were repeatedly discharged in built-up or residential areas without any care or concern for ordinary members of the public who might be caught in the cross-fire as, for example, was one taxi driver. Innocent members of the public were occasionally caught in the cross-fire whilst lethal weapons were being discharged. 45. The conspiracy offence alleged in count 7 reflected the retail trade by the offenders in controlled drugs, especially in class A Drugs (crack cocaine and heroin), and class B (cannabis). The supply of those drugs was operated and organised by the offenders as a business. The business was large-scale. It operated over a substantial period of time and took place on a daily basis. 46. In his opening submissions the Attorney General drew our attention to the increase in gun crime, especially in large cities such as Manchester, and to the development of gangs which make money by peddling drugs and protect their business and their territory with guns. Plainly it attracts some young people and the courts must do what they can to stamp it out. The two offences of which these young man were convicted or to which they pleaded guilty both carry maximum sentences of life imprisonment. The Attorney General does not contend for that starting point; but he does contend that the very experienced trial judge who passed sentence in this case should have started at a much higher level. 47. In relation to the conspiracy to possess firearms and ammunition with intent to endanger life (count 6 in the indictment), our attention was drawn to what was said in this court in R v Avis [1998] 2 Cr App R(S) 178, and to the decisions of this court in R v Farrer and Pendrigh (1995) 16 Cr App R(S) 904, Attorney General's Reference No 49 of 1998 ( R v Chevelleau ) [1999] 1 Cr App R(S) 178, and Attorney General's Reference No 2 of 2000 ( R v Hinds ) [2001] 1 Cr App R(S) 27. 48. Those last two case demonstrate that in a contested case simple possession of a firearm together with ammunition with intent to endanger life merits a sentence of between seven and eight years. Here the gang, as all its members knew, had access to a number of firearms which were frequently used. Considering count 7 alone, the conspiracy to supply drugs of classes A and B, and the way that conspiracy was put into effect, the Attorney General submits that the court should have been thinking in terms of a sentence in a contested case in the region of up to ten years. That seems to us to be correct. The question is the extent to which the criminal activity is aggravated by the use of guns. As to that the Attorney General's submission is that for someone of full age at the centre of this activity the total sentence should have been close to twenty years. 49. In general terms we agree, but we do consider that it is necessary to give careful consideration to the position of each offender and that factors such as youth, previous offending and peer pressure do have a part to play. We do not regard ourselves on this reference as being bound to arrive at a conclusion within the parameters set by the trial judge in relation to the offender Pitt or the offender Mensah. In most cases where guns are carried and used, it is desirable to pass a consecutive sentence to mark the additional gravity attributable to the presence of firearms. But if that is done in a case such as this, the sentences which are passed have to be adjusted to ensure that the total sentence is not too high. 50. In this case we propose to look, first, at the four offenders who are described as senior members of the gang. We start with the offender Gordon. Gordon was at the time of the offending 18 to 19 years of age. He is now 21. He was convicted by a jury. He did not have any previous convictions. On 23 July he was at the party when the Nino handgun was produced and he savagely beat another youth with the butt of the gun, then rode off firing it into the air. He told Ramsey to leave Elgar Street, the safe house, with that gun when it was described as “hot” in order to avoid armed police and to shoot them if he saw them. On 13 September he helped to bundle Roberts into Day's car and took him to the park, where Roberts was subjected to Russian Roulette and then abused in the way that we have described. At the end of that abuse Gordon put his foot on Roberts' throat. On 15 September, when the police raided Ramsey's flat and recovered the Bronco, Gordon was one of those who called Ramsey to account before he was shot on the following day. 51. On 20 September Gordon and another were seen bagging up guns. On 22 September, he went with Pitt and others to Birmingham in order to meet Fitzy and was a party between 24 and 26 September to the exchange of weapons with Fitzy. On 27 September, he and others went to London to buy drugs. On 22 November he was arrested with gunshot residue found on his clothing, and £3,000 was found at his home address. Nothing turns on the fact that he was the step-brother of Pitt, but he was unquestionably a senior member of the gang: a senior drug distributer and supplier of heroin, present when firearms were clearly in evidence, and in the judge's view he was up to his neck in this matter and a very significant player. 52. He seeks the leave of this court to appeal on the basis that there was not a sufficient distinction made between the sentences which were imposed on Thorne and Simons and the sentence imposed on him. He received nine years' detention in a young offender institution. We now have to decide whether that sentence was unduly lenient. 53. In our judgment that sentence was unduly lenient. In respect of count 6 in the indictment so far as Gordon is concerned, we consider that an appropriate sentence would have been eight years' detention in a young offender institution, with a consecutive sentence of six years' detention in respect of count 7 of the indictment, those sentences being only at that level because of the age of that particular offender and because that is a matter which it was appropriate for the judge to take into account. We have to decide now what the sentence should be, having regard to the fact that he is being sentenced for a second time. Because of that factor, in respect of count 6 in the indictment, the sentence will be one of seven years' detention, and in respect of count 7, one of five years' detention, making a total of twelve years' detention in all. We decline to give him leave to appeal. 54. We turn to the next of the senior members of this gang, Douglas Thorne. Thorne was born on 6 January 1977, so that at the material time he was about 22 to 23 years of age. He was convicted by the jury. He had previous conviction for possessing a prohibited weapon (although we are told it was simply a CS gas canister), for supplying cocaine and being concerned in the supply of heroin and cocaine. He was, it seems, involved in the manufacture of drugs in Sadie Hughes' flat. He disputes, although there was evidence from Mensah to the contrary, that he was involved in any way when Devon Bell was shot by Pitt on 3 September 2000. Be that as it may, on 4 September 2000, he left O'Too's house with Pitt and Mensah to confront members of the Longsight Crew. On that occasion he was armed with the 9mm Nino, and there was an exchange of fire during which that weapon was discharged. On 13 September he with Pitt and Mensah took over the beating of Roberts from the Gooch Close gang. Roberts was then taken to the park in the manner we have described. On 15 September, when Ramsey was called to account after the police recovered the Bronco from his address, Thorne was involved. The next day Ramsey was killed. On 22 September Thorne was involved in the trip to Birmingham to meet Fitzy. He was again involved in the subsequent exchange of weapons. He was also involved, so far as recovery of the weapons was concerned, because one weapon which was thus obtained from Birmingham was recovered from the home of his cousin. On 11 November the Smith & Wesson revolver was recovered from the rear of Eskdale House when Thorne and Proverbs were chased by the police. There was also recovered on that occasion the balaclavas and some cannabis. Assorted ammunition and body armour were recovered from two addresses which were linked to him. On 12 November a shotgun, which was probably the one used by Ramsey to shoot Bridges in the legs, was recovered from an address also linked with Thorne. On any view he was a senior gang member involved in the preparation of drugs and the handling of firearms. The judge accepted that (in his words) he was “the least around” because on the evidence of Mensah he was not seen a great deal. But he was, the judge also found, a leader -- not the leader, but in the level immediately below. He was only involved between July and November, as his counsel has submitted to us. But nevertheless he was seriously involved in that extremely important period. In his case the judge imposed concurrent sentences of eight years' imprisonment. 55. We regard those sentences as unduly lenient. We set aside those sentences. We substitute for them in respect of count 6 a sentence of eight years' imprisonment, and in respect of count 7, one of six years. But we have to take into account, as we did in the case of Gordon, the fact that we are now sentencing for a second time. So in respect of each of those offences we reduce the sentence to in the one case seven years and in the other case five, making a total in his case also of twelve years' imprisonment. He receives the same sentence as in the case of Gordon, although he is older, because he was around for a somewhat shorter time. 56. We turn now to Moses Boakye. He was born on 23 November 1980, so that at the time of these events he was 19 to 20 years of age. He pleaded guilty on 17 January 2002, the first day of the third trial, on the basis that he had not discharged any firearm or been present when one was discharged. He also had no relevant previous convictions. He was, nevertheless, a very senior member of the gang and was so described. Sadie Hughes said that she sold drugs for Boakye after she had stopped selling them for Pitt. On 15 September, when Ramsey was called to account, Boakye was involved. On 22 September he went with Pitt and others to Birmingham and on 24 to 26 September he was involved in the exchange of weapons with Birmingham. On 27 September he was involved in the trip to London. On 15 November he was arrested, and when he was arrested police recovered heroin and cocaine. 57. He also seeks leave to appeal on the grounds of disparity. In his case the sentencing judge sentenced him to eight years' imprisonment concurrent on each of the two counts. 58. We are satisfied that in his case also the sentence which was imposed was unduly lenient. In our judgment the sentence which should have been imposed, taking into account his plea of guilty (albeit late) was one in respect of count 6 of seven years' imprisonment, and in respect of count 7, of five years' imprisonment, making twelve years' imprisonment in all. We have regard in his case, too, to the fact that we are re-sentencing. Accordingly we adjust those figures so that in respect of count 6 the sentence in his case will be one of six years' imprisonment, and in respect of count 7 one of four years' imprisonment, making ten years' imprisonment in all. We decline to give him leave to appeal. 59. We turn to Simons, the last of the senior members of the gang. He was born on 28 June 1979, so that he was 20 to 21 years of age at the material time and is now 23. He was convicted by the jury. He had a previous offence of possessing one round of ammunition without a certificate and was released from prison on 12 September 2000. On the next day he was seen at Bickerdike Court. In that month he was in the car with Pitt and Mensah when Pitt told Mensah to fire at the Longsight Crew's car as they drove past. On 18 September, after police recovered the Bronco gun and Ramsey was called to account, Simons was there. On 22 September he went with Pitt and the others to Birmingham to meet Fitzy in Birmingham. He was involved in the subsequent exchange of weapons. He went to London on the trip to buy drugs. For the short period he was involved, he was a senior member and an active member of the gang. It is pointed out to us, rightly, that he was involved for a shorter period but, as the judge said, during that period he was up to his neck in it. So far as he was concerned, the judge passed concurrent sentences of seven-and-a-half years' imprisonment. 60. We take the view that those sentences were unduly lenient. The sentences, in our judgment, in his case should have been sentences of eight years in respect of count 6 and six years in respect of count 7, making a total of fourteen years' imprisonment. He was only involved for a short time, but he was older than, for example, Gordon. Taking into account the fact that we are sentencing him for a second time, we adjust his sentences, as we adjusted the sentences of the others. In respect of count 6, the sentence in his case also will be one of seven years' imprisonment; in respect of count 7, five years' imprisonment, making a total of twelve years' imprisonment in all. 61. We now turn to the remainder of the offender: Day, Coudjoe, McGlacken, O'Too and Proverbs, all of whom were junior members of this gang. Two of those we have just named, McGlacken and O'Too, were conspicuously younger than the others. All of them, because they were junior member of the gang, were much less involved with the firearms' aspect of this gang's activities and in many cases were not involved with the firearms activities at all, save that they knew that the others members of the gang did have available and did use firearms. There is of course a distinction to be drawn, which we recognise, between those who actually themselves had possession of firearms and used them, and those who as junior members of the gang or other members of the gang are simply aware of the fact that those with whom they share gang membership do possess such weapons. The junior members of the gang fall into the latter category and it is therefore important when sentencing them to have regard to that fact. 62. We have considered carefully the sentences imposed in respect of each of them. It can be said in relation to each that the sentences were lenient. The question arises as to whether they were unduly lenient and whether this court should interfere with them. If we were to find that they were unduly lenient, when we come to pass sentence we should have to have regard, as we have in relation to each of the senior members of the gang, to the fact that it is necessary on passing sentence now to recognise that we would be passing sentence for a second time. 63. Although the sentences were lenient, we are not satisfied that the sentences imposed in respect of the junior members of the gang were unduly lenient. So far as they are concerned, the sentences passed by the trial judge will stand.
{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["murder", "ammunition with intent to endanger life", "attempted murder", "conspiracy to supply controlled drugs of class A and class B", "conspiracy to possess firearms"], "AcquitOffence": ["murder"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["data not available"], "Sentence": ["eight years' imprisonment", "six years' imprisonment", "four-and-a-half years' detention", "nine years' detention in a young offender institution", "seven years' imprisonment", "seven-and-a-half years' imprisonment", "five-and-a-half years' detention in a young offender institution"], "SentServe": ["concurrent", "consecutive"], "WhatAncillary": ["data not available"], "OffSex": ["his"], "OffAgeOffence": ["25 years of age, having been born on 14 September 1977; Warren Coudjoe, who is 21 years of age, having been born on 15 April 1981; Michael Ryan Gordon, who is 21 years of age, having been born on 14 July 1981; Douglas Marley McGlacken, who is 17 years of age, having been born on 4 July 1985; Douglas Junior Thorne, who is 25 years of age, having been born on 6 January 1977; Troy Scott O'Too, who is 18 years of age, having been born on 17 April 1983; Moses Boakye, who is 22 years of age, having been born on 23 November 1980; Mark Simons, who is 23 years of age, having been born on 28 June 1979; and finally, Stefan Antonio Proverbs, who is 23 years of age, having been born on 15 February 1980."], "OffJobOffence": ["data not available"], "OffHomeOffence": ["home of McGlacken at 68 Parkin Street"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["Marcus Greenridge."], "VicNum": ["two actual deaths"], "VicSex": ["his"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["police raided Ramsey's flat", "Pitt's DNA"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["loaded firearms", "premeditated violence", "conspiracies lasted from October 1999 to December 2000", "prevent the transfer of fingerprints or DNA", "The business of the gang was undoubtedly the selling of drugs 24 hours a day, seven days a week.", "balaclavas to conceal", "street value"], "MitFactSent": ["youth", "position of each offender"], "VicImpactStatement": ["data not available"], "Appellant": ["Attorney General"], "CoDefAccNum": ["offenders are Gregory Mark Day, who is 25 years of age, having been born on 14 September 1977; Warren Coudjoe, who is 21 years of age, having been born on 15 April 1981; Michael Ryan Gordon, who is 21 years of age, having been born on 14 July 1981; Douglas Marley McGlacken, who is 17 years of age, having been born on 4 July 1985; Douglas Junior Thorne, who is 25 years of age, having been born on 6 January 1977; Troy Scott O'Too, who is 18 years of age, having been born on 17 April 1983; Moses Boakye, who is 22 years of age, having been born on 23 November 1980; Mark Simons, who is 23 years of age, having been born on 28 June 1979; and finally, Stefan Antonio Proverbs, who is 23 years of age, having been born on 15 February 1980."], "AppealAgainst": ["sentences"], "AppealGround": ["Attorney General does not contend for that starting point; but he does contend that the very experienced trial judge who passed sentence in this case should have started at a much higher level.", "on the grounds of disparity.", "unduly lenient."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["the sentence in his case will be one of six years' imprisonment, and in respect of count 7 one of four years' imprisonment, making ten years' imprisonment in all", "We substitute for them in respect of count 6 a sentence of eight years' imprisonment, and in respect of count 7, one of six years", "sentences passed by the trial judge will stand.", "sentence in his case also will be one of seven years' imprisonment; in respect of count 7, five years' imprisonment, making a total of twelve years'", "sentence will be one of seven years' detention, and in respect of count 7, one of five years' detention, making a total of twelve years' detention in all. We decline to give him leave to appeal."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["the very experienced trial judge who passed sentence in this case should have started at a much higher level."], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["Don't know"], "ConvictOffence": ["conspiracy to supply controlled drugs of class A and class B", "ammunition with intent to endanger life", "conspiracy to possess firearms", "murder", "attempted murder"], "AcquitOffence": ["murder"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["data not available"], "Sentence": ["six years' imprisonment", "seven-and-a-half years' imprisonment", "eight years' imprisonment", "five-and-a-half years' detention in a young offender institution", "four-and-a-half years' detention", "nine years' detention in a young offender institution", "Day"], "SentServe": ["Combination"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["17-25"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Don't know"], "VictimType": ["Individual person"], "VicNum": ["2"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Forensic evidence", "Police evidence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["Prolonged /sustained", "Offenders operating in groups", "premeditated violence", "Financial gain /value", "Concealment", "balaclavas to conceal", "Weapon /armed"], "MitFactSent": ["youth", "position of each offender"], "VicImpactStatement": ["data not available"], "Appellant": ["Attorney General"], "CoDefAccNum": ["9"], "AppealAgainst": ["sentences"], "AppealGround": ["on the grounds of disparity.", "Attorney General does not contend for that starting point; but he does contend that the very experienced trial judge who passed sentence in this case should have started at a much higher level.", "unduly lenient."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence", "the sentence in his case will be one of six years' imprisonment, and in respect of count 7 one of four years' imprisonment, making ten years' imprisonment in all", "Dismissed-Failed-Refused", "sentence will be one of seven years' detention, and in respect of count 7, one of five years' detention, making a total of twelve years' detention in all. We decline to give him leave to appeal.", "sentence in his case also will be one of seven years' imprisonment; in respect of count 7, five years' imprisonment, making a total of twelve years'"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["the very experienced trial judge who passed sentence in this case should have started at a much higher level."], "ReasonDismiss": ["data not available"]}
325
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 1817 No. 202201784 A2 Royal Courts of Justice Thursday, 1 December 2022 Before: LADY JUSTICE SIMLER MR JUSTICE SWEETING HIS HONOUR KATZ KC REX V MEHMET DENIZ __________ Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] _________ MR C JOHNSTON appeared on behalf of the Appellant. THE CROWN did not appear and were not represented. _________ JUDGMENT LADY JUSTICE SIMLER: Introduction 1 On 4 January 2022, in the Crown Court at Luton, the appellant (then aged 36) pleaded guilty to an offence of attempted murder, contrary to section 1(1) of the Criminal Attempts Act 1981 . On 20 May 2022 Her Honour Judge Tayton KC sentenced the appellant for that offence to an extended determinate sentence of 20 years, comprising a custodial term of 16 years and an extended licence period of four years, pursuant to section 279 of the Sentencing Act 2020 . 2 He appeals against sentence with limited leave of the single judge, and we have had the benefit of submission, both written and developed orally, from Mr Johnston, who was trial counsel below and to whom we are grateful. The facts 3 On 16 May 2021 the appellant attempted to murder his wife, Sharron McCloskey, who was then aged 54. They had met in 2007 in Turkey and married subsequently in Turkey in October 2012, moving back to this country shortly afterwards. The couple separated some five weeks before the offence. Although their relationship had had moments of turbulence, the appellant had never previously been violent and the police had never before been called. 4 On 16 May 2021 Ms McCloskey was away from their shared home in Colchester. The appellant was looking after the dog and had stayed in the marital home the previous night. He was specifically asked to leave before she returned, as the two were prone to argue at that time. Ms McCloskey believed that he was cheating on her. Despite that request, when she returned, he was still in the house. An argument developed. During the course of that argument she took his telephone and discovered what she believed to be proof of his infidelity. She told him to pack the remainder of his belongings, and that she wanted the truth. 5 Having looked through the appellant’s telephone, Ms McCloskey went upstairs to tell the appellant that all she had ever wanted was to be told the truth. She threw his bag towards the door and slapped his face, telling him to leave. She was later to describe the slap as being “four or five” on a scale of one to ten. They continued to argue, and the appellant struck Ms McCloskey forcefully from behind to the back of her head. This occurred at about 10.45 pm and the wound bled profusely. She turned to him, asking “What have you done” and was then struck by him to the front of the face and head. One of the blows struck her hand. She feared at that moment that she would die. 6 The appellant was holding a large Maglite torch that belonged to Ms McCloskey’s son. Because of the bleeding, Ms McCloskey went and stood in the shower to wash off the blood and then went to lie down on the bed. As she was lying down, he struck her again, twice to the head with the torch. She described the last blow as feeling as though it “cracked my head in two”, and as coming from “as high as his arm could get.” She said words to the effect, “Oh God, you’ve done it. You’ve killed me.” The appellant then armed himself with his stepson’s hockey stick, although he did not in the event use it to inflict violence. He told Ms McCloskey to “shut up” or she would “get it.” She believed that she was struck five times altogether, each blow with the Maglite torch. The appellant was shouting that he was going to kill her and then kill himself. He said he would take tablets. He repeated the threat that Ms McCloskey would die. He placed a pillow over her face at one point. 7 As Ms McCloskey lay bleeding in the bedroom, she pleaded with him to think of the children. A neighbour heard her screaming, “my children”. The screaming lasted for about ten minutes. Ms McCloskey vomited on herself, and the appellant told her that this was all her fault as she had slapped him when ordering him to leave. 8 The appellant eventually took his wife’s telephone and left, telling her that he would call an ambulance. Footage from the Ring Doorbell captured him saying, at around 2.45am, “Sharron, it’s on the way. Yeah, I promise.” That was a lie. At 2.47 am the appellant called a local taxi firm to take him back to Bedford town centre, where he was living at the time. The taxi arrived shortly before 3.00 am. Meanwhile, Ms McCloskey believed that help was on its way and was listening desperately for the sound of sirens. 9 At 3.19 am the appellant used the same taxi firm to return from Bedford town centre to the house, arriving at 3.27 am. Ms McCloskey heard him return and hoped that it was the paramedics. Realising that it was the appellant, she pleaded for the return of her phone in order to call 999. The appellant did not give it to her. He left the property again at 4.12 am. Five minutes later, at 4.17 am, Ms McCloskey, who had by then had her phone returned to her, contacted emergency services. She said she had been attacked by an intruder. 10 The police arrived swiftly at 4.25 am finding Ms McCloskey in a shocking state. The stairway in her home had to be cut down so that she could be lowered on a trauma board. She was taken to hospital. 11 Although Ms McCloskey would not divulge the identity of her attacker, police used CCTV footage from the Ring Doorbell and identified her husband as the man responsible for the injuries. His photograph was circulated and he was arrested at 2.00 pm the following afternoon in Bedford. He was in possession of his identity documents and passport. Analysis of his telephone showed that he had researched flights to Turkey and searched sentencing for the offence of attempted murder. 12 Ms McCloskey’s injuries were identified as a complex scalp laceration, head injury, facial laceration, left sided radial fracture, and right middle finger laceration. The injuries to her head and scalp comprised a vertical, deep laceration to the forehead connected to a diamond-shaped, exposed area of skull on top of the head, with a single vertical, closed laceration, the depth of which was not assessed; an L-shaped laceration above the left eyebrow with bruising; and a one centimetre laceration below the left eye. The scalp and face lacerations were closed under local anaesthetic. A skin graft was required in relation to the soft tissue loss from the skull. Ms McCloskey was in hospital for 11 days. 13 Meanwhile, having been arrested, the appellant was deemed unfit to be interviewed. Investigations were subsequently conducted as to the appellant’s mental health state, and we shall return to these below. Sentence 14 The appellant was of previous good character. Notwithstanding his previous good character and the absence of previous violence, the pre-sentence report author concluded that by the very nature of the offending he posed a high risk of serious harm to Ms McCloskey and any future partners. 15 The judge also had a report from a clinical psychiatrist, Dr Zaman. We, too, have read that report, and note the following passages: “There is no past psychiatric history of note in the UK. He reported admission to psychiatric institutions in Turkey for several years as a child. He reported instances of suicidal ideation and attempts on his life, the last being four years previously. He manifested significant distress following arrest, requiring lengthy support under ACCT procedures and in prison healthcare conditions. He had been initiated on antipsychotic and antidepressant medication, which have apparently led to subjective and objective improvement in his mental state. In hospital conditions his symptoms have not been consistent. There is no medical history of significance. He was admitted to Dune Low Secure Ward at Brockfield House, Wickford, Essex in September 2021. He was initially transferred on mirtazapine 45 milligram oral daily and olanzapine 10 milligram oral daily, initiated at HMP Bedford. There was no initial risk concern, and he was managed on general observations. He had initially talked about four voices and seeing animals and said that they had been present for five months. He had progressively become better but that following admission he said that he was getting worse. He spoke about hearing two to three voices inside his head, talking directly to him or whispering. The voices were said to be telling him to kill himself and that nobody likes him. He acknowledged he was in a low mood following death of his cousin and his mother in Turkey in 2020. By October 2021 he was free of antipsychotic medication. When observed on the ward, he was not seen to be responding to any unseen stimuli. He was otherwise observed to be able to function. There were no acute risks identified. He had reported to nursing staff that he was not able to sleep because of experiencing voices, but the nursing staff observed him to be sleeping throughout the night. He was interacting with other patients without concern. He was playing pool with peers. There was no concerns or paranoia about the other patients on the ward. Mr Deniz has been noted to be overheard asking other patients about their symptoms. The nursing team noted in November 2021 that he appeared to be receiving ’coaching’ from his peers regarding symptoms to report in his fortnightly ward rounds. From that point he typically would come into the ward round meeting and discuss his reported auditory hallucinations and request additional medication. However, alongside this his ability to engage in activities on the ward with staff and peers had increased. He was noted to speak about wanting to bang his head to get rid of the auditory hallucinations. However, there was no actual evidence that he had harmed himself in this way. There had been no further concerns regarding self-harm. A Miller forensic assessment of symptoms test was undertaken. This was completed on 22 February 2022 and utilised an interpreter. It was concluded that the total score was significantly elevated, and therefore, indicated that he may be malingering mental illness. Amy Jones (Psychologist) concluded that during the assessment process it did not indicate that there was any genuine psychosis present. It was also suggested that he is likely to be malingering symptoms of psychiatric disorder. It was noted that Mr Deniz is able to organise and articulate his thoughts. It was, however, noted that there was some presence of mood disturbance.” 16 In terms of his opinion and recommendations, Dr Zaman noted that the appellant had been assessed under sections 48 and 49 of the Mental Health Act 1983 (as amended) over a period of five months. The opinion of his treating team was that he was not suffering from a mental disorder of a nature or a degree that warranted treatment in hospital under the Mental Health Act 1983 . Dr Zaman agreed with the opinion of the treating team. He did not recommend a hospital order . He referred to the fact that the appellant had undertaken a period of treatment without antipsychotic medication and said there had been no enduring positive or negative psychotic symptoms consistent with a chronic and enduring psychotic illness. Nor had there been any significant affective symptoms. The inpatient team had treated him for a provisional diagnosis of an adjustment disorder. His reported perceptions were not of psychotic quality and there was some inconsistency in his presentation between his subjective perception of distress and that observed by staff. 17 The judge also had victim personal statements from Sharron McCloskey dated 15 November 2021, 3 February 2022 and 1 March 2022. We too have read those statements. 18 The judge concluded in light of all the material before her that this was a medium culpability case in category C of the Guidelines: there was the use of a weapon, but not so serious as those used in categories A or B. It was an unpremeditated attempt to kill. She was satisfied notwithstanding submissions to the contrary by both defence and prosecution counsel, that the injuries suffered amounted to serious physical and psychological harm and were, therefore, in category 2, and not category 3. This was therefore a category 2C case. 19 That meant a starting point of 20 years with a category range of 15 to 25 years’ imprisonment. There was serious aggravation in the facts that the offence took place in a domestic context; the steps taken to stop Ms McCloskey obtaining medical assistance; that he returned her phone only when she said she would not name the appellant as the offender; the steps taken to conceal evidence of his bloodied clothing; and the fact the appellant appeared to be contemplating fleeing the country. 20 Against that, in mitigation, the appellant had no previous convictions and had been diagnosed with an adjustment disorder as a result of these proceedings. In the context of this particular case, given the psychiatric report this did not impact significantly on his culpability. 21 The judge addressed the dangerousness criteria. She referred to the views of Ms McCloskey who had accepted the appellant’s account that he was mentally ill at the time of the offence and powerless to act in any other way than he did. Nonetheless in light of the psychiatric evidence the judge was satisfied that the appellant was not suffering from a mental illness which undermined his responsibility for what he did. She referred to the pre-sentence report author’s conclusion that this was a finely balanced decision, given the likely substantial custodial sentence. She continued: “Standing back as an objective observer, I am satisfied that you’ve lied to Ms McCloskey on a number of occasions. You have manipulated her and you have attempted to manipulate mental health staff. You have given inconsistent accounts about yourself and their assessments indicate that you have been malingering. I am satisfied that Ms McCloskey was right after the attack on her when she was questioned whether she ever really knew you. In my view, you have not been frank about how you were living your life. All of this feeds into the assessment I have to make about the risk you pose in the future. The attack on Ms McCloskey was serious and sustained, and it appears that you deliberately left her without medical assistance, in my view, in anticipation that she would die. Your actions at the time of the offence and afterwards indicate to me a degree of calculation, as do your actions in the psychiatric unit. All of this raises a substantial question mark as to the extent of any remorse. In my view, you do pose a significant risk to members of the public and, in particular, Ms McCloskey and any other domestic partner with whom you may establish a relationship – of serious harm occasioned by the commission of further specified offences” 22 In light of that conclusion, the judge decided that an extended sentence was appropriate. After trial, the appropriate determinate sentence would have been in the order of 22 years, reduced to 20 years for personal mitigation. The judge gave credit of 20 per cent despite the guilty plea on the day of trial because this meant that Ms McCloskey was not required to give evidence. 23 The sentence the judge passed was an extended sentence with a custodial element of 16 years and an extended licence period of four years. The appeal 24 The grounds of appeal contend that the sentence was manifestly excessive because the judge placed the case at too high a level in the Sentencing Guidelines. First, culpability was wrongly assessed in circumstances where the offence lacked premeditation, the weapon was picked up in response to the slap, and there had never been violence before. Secondly, harm was assessed at too high a level given that the complainant made a full recovery within a year. The harm assessment was wrongly elevated to category 2 and made in contradiction of realistic submissions made by both defence and prosecution counsel. Thirdly, insufficient regard was paid to the appellant’s personal mitigation. He had his own personal difficulties. He was described as a gentle, caring man. The offending was entirely out of character. His grief was not properly reflected by the judge. Overall the sentence was simply too long and too severe. Discussion and conclusions 25 We can see no realistic basis for challenging the judge’s assessment of culpability as too high. It was common ground that this was a medium culpability C case within the relevant Sentencing Council Guideline and the judge correctly adopted this. We entirely accept that this was not a case where the weapon used was taken to the scene intending to use it. The metal torch was picked up at the scene and used as a weapon having done so. However, although the initial attack was spontaneous, it continued over a period of time and there were pauses during the violence before further violence was meted out. The appellant told Ms McCloskey that she was going to die and refused her requests to summon medical assistance. The judge said that it appeared that the appellant did this in anticipation that she would die and in any event, there was no material difference in terms of culpability between premeditation and withholding medical assistance over a period of time after an attack in the expectation that the person will die as a result. We take the view as we will explain, that these higher culpability factors could and should have been reflected in the judge’s overall assessment of culpability, and the notional custodial element of the sentence she ultimately identified. 26 Similarly, we see no arguable basis for interfering with the judge’s discretion in relation to credit for guilty plea and this point was rightly not pursued. This was a matter of discretion and the judge was fully entitled to conclude that the reduction should be less than 25 per cent given that the principal reason for the delay in plea was the obtaining of medical reports, and given the evidence that the appellant had been feigning psychosis. 27 We have given careful consideration to the contention that the judge ought to have categorised the harm in this case as falling at the top end of category 3 (with a starting point of ten years and a range of seven to 15 years) or at the lower end of category 2 (with a starting point of 20 years and a range of 15 to 25 years) within the Guideline. The degree of harm in cases of attempted murder varies greatly. The Guideline describes three broad categories of harm. Category 1 comprises injury resulting in “physical or psychological harm resulting in lifelong dependence on third party care or medical treatment” and cases where there is “permanent, irreversible injury or psychological condition which has a substantial and long term effect on the victim’s ability to carry out their normal day to day activities or on their ability to work”. Category 2 comprises “serious physical or psychological harm not in category 1”. Category 3 covers cases not in either of those categories. 28 The first category is plainly reserved for the most serious injuries causing permanent injury or disability of one kind or another. It follows that to establish serious harm in category 2, it is not necessary for the physical or psychological injury to have permanent, irreversible or life-long consequences. 29 Here, the injuries inflicted to Ms McCloskey’s head were horrifying as the photographs demonstrate. There were deep lacerations to her forehead exposing her skull (with a patch of soft tissue loss attached to her hair which required grafting) and other lacerations to her face. These required sutures and no doubt left permanent scarring to her forehead. The injuries led to her hospitalisation for 11 days. Once discharged she attended hospital as an outpatient and experienced at least, ongoing dizziness, nausea and vomiting. For a time she required a wheelchair and then the use of a stick because the dizziness affected her balance. She was still experiencing dizziness in March 2022 though it had substantially reduced. She complained that these episodes were a reminder of what had happened, suggesting ongoing trauma. She continued to experience painfully intense stabbing headaches. In her March victim impact statement she expressed a wish to have a restraining order put in place, and the clear inference is that she was in fear of the appellant. 30 While it may be true that Ms McCloskey made a full recovery from her physical injuries within a year of the offence, these were serious physical and psychological injuries. We have come to the conclusion that the judge was fully entitled to conclude that harm (both physical and psychological) was properly categorised as category 2 in this case. The judge was not bound by the view of counsel in the case. This was an evaluative assessment for her to make. Her assessment was fully supported by the evidence. 31 However even if notwithstanding that conclusion, the judge might have reflected the nature and extent of the injuries inflicted in this case, including the fact that the physical injuries had broadly resolved, by starting lower on the range than the 20 year starting point she took, an assessment that fully reflected the higher culpability features we have identified, would ultimately have justified the same 20 year notional sentence reached by the judge in any event. 32 Standing back and focussing on the question to be addressed by this court, namely whether the total sentence passed is one that can properly be characterised as manifestly excessive having regard to the culpability and harm involved, and bearing in mind all relevant aggravating and mitigating features, we are entirely satisfied that the sentence cannot be characterised in that way. It was an appropriate sentence that fully and properly reflected the full circumstances of this offending and was both just and proportionate. 33 We therefore dismiss the appeal. __________
{"ConvCourtName": ["Crown Court at Luton"], "ConvictPleaDate": ["4 January 2022"], "ConvictOffence": ["attempted murder"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["on the day of trial"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Luton"], "Sentence": ["extended determinate sentence of 20 years, comprising a custodial term of 16 years and an extended licence period of four years"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["36"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["their shared home"], "OffMentalOffence": ["diagnosed with an adjustment disorder"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["relationship"], "VictimType": ["his wife, Sharron McCloskey"], "VicNum": ["his wife, Sharron McCloskey"], "VicSex": ["his wife, Sharron McCloskey"], "VicAgeOffence": ["54"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["their shared home"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["injuries were identified as a complex scalp laceration, head injury, facial laceration, left sided radial fracture, and right middle finger laceration.", "Analysis of his telephone", "report from a clinical psychiatrist", "CCTV footage"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["high risk of serious harm"], "AggFactSent": ["steps taken to conceal", "continued over a period of time", "contemplating fleeing the country", "degree of calculation", "domestic context", "weapon", "serious physical and psychological harm"], "MitFactSent": ["diagnosed with an adjustment disorder"], "VicImpactStatement": ["victim personal statements"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence"], "AppealGround": ["grounds of appeal contend that the sentence was manifestly excessive because the judge placed the case at too high a level in the Sentencing Guidelines"], "SentGuideWhich": ["section 279 of the Sentencing Act 2020", "section 1(1) of the Criminal Attempts Act 1981", "sections 48 and 49 of the Mental Health Act 1983"], "AppealOutcome": ["dismiss the appeal."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["It was an appropriate sentence that fully and properly reflected the full circumstances of this offending and was both just and proportionate."]}
{"ConvCourtName": ["Crown Court At Luton"], "ConvictPleaDate": ["2022-01-04"], "ConvictOffence": ["attempted murder"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["on the day of trial"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Luton"], "Sentence": ["extended determinate sentence of 20 years, comprising a custodial term of 16 years and an extended licence period of four years"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["36"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Had mental health problems"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1 of 1"], "VicSex": ["All Female"], "VicAgeOffence": ["54"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Expert report/testimony", "Medical evidence", "Digital evidence", "CCTV footage"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["High risk of harm"], "AggFactSent": ["Prolonged /sustained", "degree of calculation", "contemplating fleeing the country", "steps taken to conceal", "Location", "serious physical and psychological harm", "weapon"], "MitFactSent": ["Mental health problems"], "VicImpactStatement": ["Yes"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence"], "AppealGround": ["grounds of appeal contend that the sentence was manifestly excessive because the judge placed the case at too high a level in the Sentencing Guidelines"], "SentGuideWhich": ["sections 48 and 49 of the Mental Health Act 1983", "section 279 of the Sentencing Act 2020", "section 1(1) of the Criminal Attempts Act 1981"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["It was an appropriate sentence that fully and properly reflected the full circumstances of this offending and was both just and proportionate."]}
420
Neutral Citation Number: [2019] EWCA Crim 813 No: 201803871 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 9 May 2019 B e f o r e : LADY JUSTICE HALLETT DBE VICE PRESIDENT OF THE CACD MRS JUSTICE SIMLER MR JUSTICE ANDREW BAKER R E G I N A v LEE ROY BRINDLE 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 B O'Toole appeared on behalf of the Applicant Mr S Heptonstall appeared on behalf of the Crown J U D G M E N T (Approved) MR JUSTICE ANDREW BAKER: 1. This applicant, Lee Roy Brindle, seeks to appeal against a sentence imposed by HHJ Williams in the Crown Court at Maidstone in August 2018. His application has been referred directly to the full court by the Registrar because of concern identified as to the propriety of the way in which the sentencing judge constructed the sentence she articulated, whatever the single judge or in due course the full court might or might not make of the submissions of counsel as to whether that sentence was, overall, manifestly excessive. In the circumstances, a respondent's notice has also been provided to the court in relation to that aspect of the matter and we are most grateful for the assistance we have been given by Mr O'Toole, who appears for the applicant, and to Mr Heptonstall, who appears for the Crown. 2. We grant permission to appeal and as part of that we grant the very short extension of time of 3 days required, Mr O'Toole having accepted that the deadline for lodging the appeal papers was missed by those few days entirely on account of his other commitments and through no fault of the applicant. 3. The applicant, now therefore the appellant, is 45 years of age. He faced trial in June 2018 in the Crown Court at Maidstone on a nine-count indictment alleging a series of offences in, broadly stated, a domestic violence context. He pleaded guilty in the event at the start of the trial to one count and on what was the second day of his trial to three further counts. That set of guilty pleas was acceptable to the Crown and as a result no evidence was offered against the appellant on the remaining counts and not guilty verdicts were entered. 4. The offences for which in those circumstances the appellant came to be sentenced in August were a single offence of criminal damage committed in the course of an assault on his former partner, that assault and a further assault on her, and then finally an offence of breaching a non-molestation order granted in the Family Court. That order was obtained by the complainant, the appellant's former partner, in response to and in order to seek protection from the violence now constituting and represented by the criminal damage and assault offences. 5. The sentence passed by HHJ Williams, who was clear in her judgment that the matter as a whole crossed the custody threshold but in a case in which sentence could be suspended, was a suspended sentence of 12 months. It was suspended for 2 years with both a rehabilitation activity requirement and an unpaid work requirement. We are pleased to be informed, and commend the appellant to this extent, that in the interim he has completed that unpaid work requirement and all but completed the rehabilitation activity requirement, and that there have been no difficulties in relation to his compliance with the sentence. 6. A sentence of 12 months suspended in that way was plainly well within the sentencing powers of the Crown Court in respect of the four offences to which the appellant had pleaded guilty. However, the judge articulated her construction of the sentence as being 2 months in respect of the criminal damage, 5 months each in respect of each of the two assaults, all consecutive, and 5 months in respect of the breach of the non-molestation order, concurrent. That articulation of a basis for or justification of a 12-month suspended term was not a lawful basis for that sentence. That is because the criminal damage offence was a lower value offence, below the £5,000 threshold, such that it required to be treated as summary only. In those circumstances, the two common assaults (batteries) and the criminal damage offence as sentenced together in the Crown Court required in aggregate to be limited by way of sentence to a term of 6 months' imprisonment. That is agreed to be the ultimate impact of s.133 of the Magistrates' Courts Act 1980 applied to the offences before the court in this case. 7. That said, Mr Heptonstall, in his helpful respondent's notice, reminds the court, and Mr O'Toole accepts, that any appeal against sentence is an appeal against the entire sentence passed. In particular, an appellant may not, as it has been put, “bank” a favourable constituent part of the sentence whilst challenging some other part. That is, it seems to us, particularly important in a case where the valid basis of challenge is, as in this case, to one element of the way a multiple offence sentence has been constructed or articulated but where the overall sentence in fact passed is within the powers of the court and may be justifiable as a reflection of the overall offending behaviour involved. If authority were needed for that proposition as to not banking constituent parts of sentence, Mr Heptonstall reminds us that it can be found in the case of R v Hyde [2016] EWCA Crim 1031; [2016] 2 Cr App R (S) 39 , in particular at [15]. 8. In the present case, that principle most obviously applies to the decision by HHJ Williams to impose a concurrent sentence for the breach of the non-molestation order. We shall briefly summarise in a moment the facts of these offences, but suffice it to say that, as will appear from those facts, if anything the most natural construction for a sentence in this case, the custody threshold having been crossed, would have been to articulate what was felt to be the appropriate term of imprisonment to be suspended in respect of the summary only matters and then, to reflect the separate nature and circumstances of the breach of the non-molestation order, to impose that term as a consecutive term. 9. It seems to us inevitable that in this case it will only have been because the judge imposed consecutive terms in respect of each of the summary only matters, so as already to have reached a term of 12 months, that it will then have occurred to her to impose a concurrent term for the breach of the non-molestation order. 10. Briefly then, and in summary, the matter arises out of the breakdown of the appellant's relationship with his long-term former partner. The relationship had lasted 19 years or so and there were four children in the family who are not or may not be the appellant's biological children but who nonetheless called him dad and treated him as the father of the family. However, the relationship broke down in 2015, at which point the appellant moved out of the family home. Matters came to a more unpleasant end when the appellant learned in around mid 2017 that his former partner had a new relationship. 11. On 30 July 2017, the appellant visited the children at the family home, no longer his home. The complainant, his former partner, was present. The appellant became verbally aggressive towards her, ripped off a gold chain, causing damage to it, and snatching a bag she was carrying off her shoulder, bruising her forearm. It was also alleged against him that he threw the bag to the floor and jumped on it, damaging mobile phones, but we were informed by Mr O'Toole that the basis upon which he pleaded guilty did not extend to accepting the damaging of the mobile phones and so consideration of sentence in relation to criminal damage is restricted to the damage to the gold chain. 12. That assault of a domestic violence nature, leading to some albeit not lasting injury, formed the first of the assault offences to which the appellant pleaded guilty and the damage to the necklace was the criminal damage. 13. Three days later, on 2 August 2017, the appellant went to the complainant's house in his car and asked the complainant to join him in the car, which, albeit reluctantly, she did. The appellant was angry and told the complainant that the children did not want to return home; he was angry about the new partner and said he was going to hurt her. When she went to get out of the car, the appellant punched her on the arm, again causing bruising, and that was the second assault. 14. The response of the complainant, as we have already indicated, was to seek the assistance of the Family Court sitting at Dartford, which on 11 August 2017 issued a non-molestation order against the appellant under s.42 of the Family Law Act 1996 , in the complainant's favour. Its prohibitions included that the appellant was not to communicate with the complainant by any means except through solicitors. It had a period of 1 year. 15. The appellant's immediate and wholly unjustified reaction to service upon him of the order was to breach it by getting a friend of his to telephone the complainant and put him, the appellant, onto the line, saying, as he then did, " You have got the dates wrong and you have lied about everything in your statement. I am going to have a field day with all this ". Whatever precisely he meant by that, there could be no doubt that that was the most open and outrageous defiance of the authority and order of the court, to which in turn, as we have indicated, the complainant had in effect taken refuge as a means of dealing with the domestic violence she was suffering at the appellant's hands. 16. In helpful and focused submissions for the appellant, Mr O'Toole does not shrink from his acceptance that the appellant's behaviour has been entirely unjustified and unjustifiable. The broad gist of his submissions nonetheless was that, whether taken individually or in combination, all of this offending was at a relatively low level of severity such that the judge ought not to have concluded that it crossed the custody threshold. The submission thus is that a community order should have been imposed and, in any event, if it had to be a suspended sentence order, it was open to this court to reconsider the term imposed. 17. Taking very briefly the applicable sentencing guidelines, bearing in mind, as we repeatedly find ourselves saying, that any such sentence starting point or range is for a single offence dealt with in isolation, as it seems to us these were common assaults that in and of themselves were within category 2 of the sentencing guideline, displaying greater harm in the context of a simple assault but without any higher culpability factors, however very substantially aggravated by the domestic violence context and the criminal damage, if that is not dealt with by way of consecutive sentence. To our mind, these offences undoubtedly did cross the custody threshold and certainly the judge's conclusion that they did could not be said to be wrong in principle or to result in a manifestly excessive sentence. Given the locations, the complainant's own home and the confined space of the car, parked outside her own home, the ongoing and serious effect of the offending, to which amongst other things the complainant herself spoke by way of victim personal statement, the fact that there was the repetition of the behaviour, all in a domestic violence context displaying the classic features of that context of a controlling abuse of power within a relationship or former relationship, coupled with the fact that, albeit of some significant age, this is an appellant with a substantial prior record of convictions, including convictions for violence, in our judgment a custodial term of 5 months' imprisonment was correct and appropriate to reflect the seriousness in combination of the two assaults and the criminal damage, even giving the appellant such very limited credit for plea as he could claim given the lateness of his pleas. 18. As regards the breach of a protective order, in our judgment under the guideline and again emphasising that this would apply if it were the only act of criminality involved, this was a category 2B offence attracting a starting point of 12 weeks' custody and a category range from a medium level community order up to 1 year's custody. Given the aggravating features of this case, to which we have adverted, we cannot fault the judge's conclusion that a term of 5 months' imprisonment was appropriate. Reflecting, however, our opening observations as to the construction of the sentence, in our judgment that ought to have been and will now be expressed to be a term consecutive to the term imposed in relation to the summary only matters. 19. For all those reasons and in all the circumstances, and with thanks again to counsel for their assistance, we do allow this appeal and restructure the sentence, but to this extent only: in respect of count 2, 2 months and in respect of count 3 and count 6, 5 months each, all those sentences concurrent; in respect of count 7, 5 months consecutive to the terms on counts 3 and 6. Thus, the effect of this appeal is that the appellant remains subject to a suspended sentence order, suspended for 2 years with the requirements as imposed, but the term suspended is reduced to 10 months overall. 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]
{"ConvCourtName": ["Crown Court at Maidstone"], "ConvictPleaDate": ["June 2018"], "ConvictOffence": ["criminal damage", "assault", "breaching a non-molestation order"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["at the start of the trial to one count and on what was the second day of his trial to three further counts"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Maidstone"], "Sentence": ["suspended sentence of 12 months. It was suspended for 2 years with both a rehabilitation activity requirement and an unpaid work requirement."], "SentServe": ["concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["His"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["family home"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["the appellant's former partner"], "VictimType": ["the appellant's former partner"], "VicNum": ["the complainant"], "VicSex": ["her"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["family home"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["victim personal statement"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["serious effect", "location"], "MitFactSent": ["data not available"], "VicImpactStatement": ["victim personal statement"], "Appellant": ["appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["sentence"], "AppealGround": ["manifestly excessive", "articulation of a basis for or justification of a 12-month suspended term was not a lawful basis for that sentence"], "SentGuideWhich": ["s.42 of the Family Law Act 1996", "s.133 of the Magistrates' Courts Act 1980"], "AppealOutcome": ["we do allow this appeal and restructure the sentence", "the term suspended is reduced to 10 months overall"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["in our judgment that ought to have been and will now be expressed to be a term consecutive"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["Crown Court At Maidstone"], "ConvictPleaDate": ["2018-06-01"], "ConvictOffence": ["breaching a non-molestation order", "assault", "criminal damage"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["at the start of the trial to one count and on what was the second day of his trial to three further counts"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Maidstone"], "Sentence": ["suspended sentence of 12 months. It was suspended for 2 years with both a rehabilitation activity requirement and an unpaid work requirement."], "SentServe": ["Combination"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1 of 1"], "VicSex": ["All Female"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Victim testimony"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["Psychological impact", "location"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Yes"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["sentence"], "AppealGround": ["articulation of a basis for or justification of a 12-month suspended term was not a lawful basis for that sentence", "manifestly excessive"], "SentGuideWhich": ["s.42 of the Family Law Act 1996", "s.133 of the Magistrates' Courts Act 1980"], "AppealOutcome": ["we do allow this appeal and restructure the sentence", "Allowed&Sentence Replaced by More Lenient Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["in our judgment that ought to have been and will now be expressed to be a term consecutive"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
123
Case No: 2005/01518/C5 , 2005/02663/C5 Neutral Citation Number: [2005] EWCA Crim 2750 IN THE COURTS MARTIAL APPEAL COURT CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Monday, 17 October 2005 B e f o r e: THE PRESIDENT OF THE QUEEN'S BENCH DIVISION ( The Right Honourable Sir Igor Judge ) MR JUSTICE RODERICK EVANS SIR CHARLES MANTELL - - - - - - - R E G I N A - v - ANTHONY APPLEYARD - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - MR GILBERT BLADES appeared on behalf of THE APPELLANT MR P ROGERS appeared on behalf of THE ARMY - - - - - - - J U D G M E N T THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: 1. This is the resumed hearing of the appeal by Anthony Appleyard against his conviction at a court martial held in December 2004 at Catterick. On Wednesday of last week, 12 October 2005, we rejected the submission by Mr Gilbert Blades on his behalf that the directions given by the judge advocate on duress were defective. That conclusion was reached in the context of this particular case. 2. We now turn to an argument of some importance to court martials generally. It arises in this way. In the course of the directions given by the Judge Advocate he told the members of the Board in express terms that on retirement they should "try to reach a verdict upon which each one of you is agreed". He went on that when it became possible for a majority verdict to be accepted he would give a further direction. 3. Shortly before the Board retired he returned to this topic. He again directed the Board to try to reach a verdict on which they were all agreed and told them that they should not "worry" about majority verdicts at that stage. In due course, when the court martial re-convened, the judge advocate began by asking whether verdicts had been reached on all charges on which all members were agreed. The presiding officer said that they had. 4. Mr Blades makes the short but stark submission that the convictions should be quashed, notwithstanding that each individual member of the Board was convinced of the appellant's guilt. He says that the directions by the Judge Advocate contravened section 96 of the Army Act 1955 . This provides that verdicts of a court martial "shall be determined by a majority of the votes of the members of the court". 5. In his oral submissions this morning Mr Blades pointed out that in one sense the arrangements for court martials in the military sphere were well ahead of section 17 of the Juries Act 1974 , which introduced majority verdicts in civilian cases. Mr Blades also sought to draw assistance from the Court Martial Army Rules 1997, rule 70(4) of which provides that the vote of each member of the court should be given in "reverse order of seniority". He suggested that there was a specific purpose for this provision. That was to avoid the risk that junior officers would be influenced, or improperly allow their views to be influenced, by the views of their superior officers whose orders in any other area of military life would be obeyed. 6. On examination we find that the Judge Advocate directed the Board in terms that the vote of the most junior officer should be taken first, with the remaining votes delivered in ascending order of rank. There was, therefore, no misdirection on this point. Moreover, he further expressly directed that the court martial was not like the normal military situation and that in this context the view of each member of the Board was of equal value. In particular it was not for the presiding officer to make the decision. As the Judge Advocate said in unequivocal language, "Everyone's view and opinion is equal". That direction was entirely consistent with the briefing notes provided for the Board. Paragraph 31 of the 2002 edition of the Military Courts Guide provides: "The President will normally initiate the discussion.... He should ensure that each member gives his opinion on finding in respect of each charge separately, in ascending order of seniority commencing with the junior member." There is nothing to suggest that this briefing note or the judge advocate's directions were ignored. The paragraph continues: "A unanimous decision is preferable, but a majority of votes will decide the issue." That guidance is unequivocal. It is consistent with a recent direction given by His Honour Judge Jeff Blackett, the Judge Advocate General dated 30 November 2004. Practice Memorandum No: 1989 is entitled "Court Martial -- Direction as to Unanimity". It reads: "I do not know whether all judge advocates at present routinely direct court-martial members to strive to reach a unanimous finding, but if this is not the uniform practice then I wish it to be so with immediate effect." The memorandum goes on to invite judge advocates to incorporate into their summing-up in each case an appropriately modified form of the specimen direction linked to Criminal Proceedings Consolidation. 7. Without making any formal concessions, Mr Blades was prepared to accept that there may be a good deal of sense in these arrangements. He is concerned, first, that they nevertheless constitute a contravention of section 96 , and, second, that while section 96 remains on the statute books, any changes in the practice, however desirable, are matters to which Parliament should attend. He suggests that the Judge Advocate's direction in this case might produce a series of votes by the members of the Board and that if the result of the Board's first vote on each charge were not unanimous, further votes would have to be taken to achieve the unanimity suggested by the Judge Advocate. His written submissions suggest that in any second or subsequent vote the junior officers would be aware of the way in which the senior officers had voted and might be influenced by that knowledge. This would deprive the Court Martial of the essential requirement of impartiality. 8. Although not essential to our decision, we pause to note that Mr Blades' written argument suggests that a junior officer would necessarily seek an acquittal while a more senior one would apparently be convinced of guilt. We do not know how this might work in practice. More important, however, the basic suggestion is not realistic. Any final determinative vote would come after a debate between the members of the Court Martial. It would be a pretty dull officer who would be unable to discern from the debate itself what the views of his colleagues, of whatever rank, would be likely to be and how, when it came to the final determinative vote, they would be likely to vote. That said, after the debate and after listening to the views of all his colleagues, the most junior officer at the Court Martial, and all its other members, too, will and can confidently be expected to vote as directed by conscience. As Lord Bingham of Cornhill observed in R v Spear, Hastie and Boyd and R v Saunby and Others [2003] 1 AC 734 , 752, after a speech in which all these issues were fully analysed: "Officers will appreciate, better than anyone, that to convict and punish those not shown to be guilty is not to promote the interests of good discipline and high morale but to sow the seeds of disaffection and perhaps even mutiny. In the absence of any evidence at all to support it, I could not accept the suggestion that any modern officer would, despite the oath he has taken, exercise his judgment otherwise than independently and impartially or be thought by any reasonable and informed observer to be at risk of doing so." 9. The argument by Mr Blades assumes that the Judge Advocate directed that there should be a series of formal or determinative votes culminating in a unanimous decision. We are unable to accept this premise. We assume that, like any other jury in the course of the debate, the presiding officer, like the foreman of the jury, might, if he or she thought fit, from time to time wish to take soundings to see how any potential votes might be cast. This exercise, if it took place, would not be a series of determinative votes. Thereafter, assuming that the presiding officer decided that a determinative vote should be taken, which, notwithstanding the Judge Advocate's direction, produced not a unanimous but a majority verdict, that would be the verdict which would be returned in due course after a majority direction had been received from the Judge Advocate, or after the presiding officer had sent a written indication to him that the Board was unable to reach the unanimous verdict he had asked them to try to reach. We are all familiar with these processes in the civilian criminal justice system. There is no reason to assume that members of a court martial would be likely to behave differently. 10. In the end, with respect to Mr Blades' written submission, the Human Rights Act and the challenge that the direction given by the Judge Advocate that the Board should "try" to reach a unanimous verdict somehow deprived the court martial and its members of its and their independence and impartiality as a tribunal established by law does not withstand analysis. 11. Our conclusion can be simply expressed. The Judge Advocate had no jurisdiction to refuse to accept a majority verdict from the Board. However, he was entitled to direct the members to seek or try to return a unanimous verdict if they could. That is what he did. A unanimous verdict is, indeed, preferable, if that is the verdict to which each member can conscientiously come. The direction given by the Judge Advocate did not produce a situation in which a majority of votes in favour of an acquittal (a majority verdict acquittal) would somehow have been rejected or treated as if it could not be returned. The Board would have been likely to have understood from the directions as a whole that if their efforts to reach a unanimous verdict failed, then in due course a majority verdict would be taken. For this purpose it would probably be better practice for any directions given to the Board on this topic to run along lines which expressly acknowledge that in the end the Board is entitled to return a majority verdict, but that it would be preferable for the Board to start its deliberations by seeking if possible to return a unanimous verdict. The directions in this case did not quite echo this suggested language. That said, we can see no justification for interfering with these verdicts and quashing the convictions. Accordingly, these appeals against conviction on this ground, too, are dismissed. 12. We must now turn to issues of sentence. We shall not repeat the essential facts relating to these convictions which are set out in our earlier judgment. We simply record that the appellant was sentenced to 297 days' detention and reduced to the ranks. It was acknowledged by Mr Blades in his helpful submissions on behalf of the appellant that the most serious charge related to the attempts by the appellant to pervert the course of justice. However, he pointed out that the appellant had fourteen years' reckonable service without any previous civil or military charge. The reason for sentence provided by the judge advocate acknowledge that if the three offences relating to the DVDs had stood alone, a small financial penalty would have been appropriate. However, the Board was extremely concerned that a corporal had used his influence to try to persuade a young soldier of 17 years of age to tell lies and to become involved in an attempt to pervert the course of justice. The appellant was in a position of an instructor. He should have been giving guidance to young soldiers. In any event, therefore, his conduct represented a breach of trust to youngsters who might themselves have been put at the risk of criminal proceedings. The Board recognised the factors in mitigation, including the appellant's previous good character, his long-standing ambition to be a soldier and the service he had given, as well as his real personal difficulties at home. 13. The Judge Advocate pointed out that the Board had seriously considered dismissal from the army at that stage, but concluded that a more merciful sentence should be imposed -- one which would not make the appellant unemployed or render his family homeless. 14. Mr Blades submitted that the sentence was excessive. The reduction to the ranks followed from the order of detention, although the judge advocate indicated that, even without the sentence of detention, the appellant's convictions meant that he was no longer fit to be an NCO. 15. We have considered Mr Blades' submission. It seems to us clear that the Board was profoundly concerned not only by the serious offence of attempting to pervert the course of justice, but its potential impact on young soldiers. We share the concerns of the Board. We see no basis for interfering with the sentence. 16. We turn to the second appeal against sentence only, which arose from the appellant's guilty pleas to two offences of indecent assault before a court martial held at Catterick in March 2005. On 4 April the appellant was sentenced to be dismissed from Her Majesty's Service, together with nine months' detention to run consecutively to the sentence imposed on 28 January 2005. We note, in addition, that the financial consequences of these orders would have been very significant. The appeal is brought by leave of the single judge. 17. The facts can be summarised briefly. We note that a written basis of plea was prepared and, as far as we can see, accepted by the prosecution. By the time that the advocate for the prosecution had finished opening the case, it was necessary (and appropriate) for Mr Blades to remind the Court Martial of the existence of that written basis of plea and to invite the members to focus their attention on it. 18. The facts of the case were that the appellant, then still a corporal, worked as an instructor. The complainant was an 18 year old female trainee, to whom the appellant paid an increasing amount of attention. He invited her to go out with him and left messages on her mobile phone for her. From time to time he would call her away from PT and march them back to their accommodation so that they could avoid doing PT which they did not enjoy very much. The appellant was twice the young woman's age. 19. The first charge related to an incident which occurred in Hanger 1 after the complainant had been stood down from PT by the appellant. The agreed basis of plea reads that the two of them were in the hanger and that when the complainant was walking towards the lavatory the accused walked up behind her saying, "Keep walking. I can't do anything to you because my wife is in the hanger". He continued to follow her. When the coast was clear he grabbed her by the arm and pulled her to a secluded place where they would be out of sight. There he put his arm around her waist, tried to pull her shirr out of her trousers, and kissed her neck. She then made an excuse about seeing another corporal. That was the end of the incident. 20. The second occasion occurred a few days later in similar circumstances. The appellant told an NCO that the complainant was going to police the blocks with him to ensure that only those people with a valid reason to be there had remained in them. According to the complainant, she was reluctant to go into one of the rooms with the appellant who invited her to join him there, to shut the door and to stand beside him at the window to look at the snow. According to the agreed basis of plea, during the course of inspecting several blocks, the appellant touched the complainant several times on her bottom, kissed her lips, cheek and neck and pulled her shirt out of her trousers. 21. The matter was not reported initially because the complainant did not wish to make trouble as she only had a few weeks of training left. The appellant continued to pester her. He invited her to his home when his wife was out. On one occasion he rang her fifteen times while she was unavailable because she was at the cinema. Because she felt that she could not get away from the appellant, the complainant then reported what had happened. 22. In interview the appellant denied the offences, but he pleaded guilty on the agreed basis of plea which we have indicated. 23. The significant criticisms of the sentence advanced by Mr Blades can be summarised briefly. First, and most important, it does not appear that sufficient attention was given to the written basis of plea which was accepted by the prosecution. Second, there was a possible misunderstanding about the impact of evidence about the way in which the complainant was seen to behave at a time when, it was common ground, she would have been inebriated. Mr Blades suggests that it was a legitimate point in mitigation that there was some independent evidence to indicate that the complainant had not then appeared to find that the appellant's advances to her were distasteful or repugnant. Next, he points out that in the scale of these offences this case, which never involved the touching of bare flesh in any intimate part, let alone any contact of the same kind, was to be regarded as at the lower end of significance and therefore a case which would attract the lower end of sentence. Finally, Mr Blades submitted that the sentence for this offence should have been put in the context of the sentence imposed on the appellant following his conviction at the first court martial, and that the totality of sentence included not only the overall length of the period which he would have to serve in custody, but also the significant overall financial damage consequent upon the orders made by the two court martials. 24. We have no doubt that a prison sentence was appropriate for these two offences. The Board would rightly have been concerned for military discipline, morale and recruitment, particularly in the context of efforts to attract young women into the Service. It was necessary to make clear to them, and indeed throughout the Service that, so far as possible, women, and young women in particular, would be protected from unwelcome sexual attention and that those convicted of such offences should expect significant punishment. 25. Reflecting on these considerations and looking at the sentence overall, which Mr Blades rightly invited us to do, we have concluded that we should not interfere with the sentences imposed on the appellant for indecent assault but that, as a matter of totality, we should order that the sentences will run from the date of conviction. To that extent, therefore, this appeal will be allowed. _____________________________
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{"ConvCourtName": ["Court Martial In Catterick"], "ConvictPleaDate": ["2004-12-01"], "ConvictOffence": ["indecent assault", "persuade a young soldier of 17 years of age to tell lies and to become involved in an attempt to pervert the course of justice.", "pervert the course of justice."], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Court Martial In Catterick"], "Sentence": ["297 days' detention"], "SentServe": ["Consecutively"], "WhatAncillary": ["reduced to the ranks."], "OffSex": ["All Male"], "OffAgeOffence": ["36"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Female"], "VicAgeOffence": ["18"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Victim testimony"], "DefEvidTypeTrial": ["Don't know"], "PreSentReport": ["Don't know"], "AggFactSent": ["was an 18 year old female trainee, to whom the appellant paid an increasing amount of attention. He invited her to go out with him and left messages on her mobile phone for her. From time to time he would call her away from PT and march them back to their accommodation so that they could avoid doing PT which they did not enjoy very much. The appellant was twice the young woman's age.", "appellant denied the offences"], "MitFactSent": ["including the appellant's previous good character, his long-standing ambition to be a soldier and the service he had given, as well as his real personal difficulties at home", "fourteen years' reckonable service without any previous civil or military charge."], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against his conviction"], "AppealGround": ["sentence was excessive."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Allowed, sentence remains unchanged but will run from date of conviction"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
536
Neutral Citation Number: [2018] EWCA Crim 2550 Case No: 201803629/A1, 201803531/A1 & 201803631/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 8 November 2018 B e f o r e : LORD JUSTICE DAVIS MRS JUSTICE McGOWAN DBE HIS HONOUR JUDGE KATZ (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - - - - - - - - - - R E G I N A v KARIM HUSSAIN MICKELLE ALEXANDER - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr T Schofield appeared on behalf of the Attorney General Mr D Taylor appeared on behalf of the Offender/Applicant Hussain Mr T Hardy appeared on behalf of the Offender Alexander - - - - - - - - - - - - - - - - J U D G M E N T (As Approved by the 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 person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. LORD JUSTICE DAVIS : Introduction 1. In this case the Solicitor General seeks to refer sentences imposed against two offenders on the ground that they are unduly lenient. Simultaneously, one of those offenders has sought leave to challenge the sentence imposed upon him on the ground that it is manifestly excessive. Facts 2. The background facts are these. The first offender is Karim Hussain. He is now 20 years old, having been born on 29 March 1998. He was 19 at the time of the relevant offending. The second offender is Mickelle Alexander. He is now 21, having been born on 13 July 1997. He was 20 at the time of the relevant offending. 3. On 29 June 2018, after a trial at the Crown Court at Croydon before His Honour Judge Ainley and a jury, the first offender was convicted of six offences of robbery, one offence of theft and four offences of fraud. The second offender was convicted after such a trial of seven offences of robbery, two offences of attempted robbery, eight offences of theft, one offence of attempted theft and four offences of fraud. Each of them was also acquitted on various other counts on the indictment. 4. In due course, on 3 August 2018, the first offender was sentenced by the trial judge to an extended sentence of 15 years, comprising a custodial term of 12 years and an extension period of three years. The second offender was sentenced to an extended sentence of 17 years, comprising a custodial term of 14 years with a like extension period of three years. 5. Put shortly, between late September and early December 2017, the offenders were responsible for what can properly be described as a campaign of robberies and thefts of handbags, targeting solitary women in the street, often of mature years, doubtless because they were viewed as easy targets and more likely to be carrying valuables and accessible handbags. The modus operandi employed by the offenders was to ride together on mopeds with disguised registration numbers which had been stolen for the specific purpose of committing the robberies, they wearing masks or helmets, and then having identified a suitable target they would ride towards the victims at speed and the pillion passenger would then grab the victim's bag, using force or threats if necessary. The offenders also carried knives which they on occasion showed themselves as being prepared to produce if they could not steal the handbags without using threats of actual violence. 6. During this campaign, one victim, a 70-year-old woman, was left with a fractured shoulder; another sustained suspected rib fractures (although it subsequently emerged the ribs had not in fact been fractured); a grandmother, for example, was robbed in front of her grandchildren; and in one instance relating to the second offender a male victim had his wrist slashed with a knife, albeit by the accomplice accompanying him on that occasion. Further, once the offenders had stolen the handbags they would then fraudulently use bank cards found within them, as well no doubt as applying the cash they managed to take and disposing of any jewellery they also managed to take. 7. The details of the various offences can be summarised in this way. On 28 September 2017 a woman was walking down a road in Croydon when she was grabbed from behind by a male (who was the first offender). He was riding pillion on a moped driven by the second offender. In the ensuing struggle for the gold chain she wore around her neck, the first offender tore her blouse and she was pulled to the floor and the gold chain then ripped from her. As it happens, the victim managed to pull a ring from the first offender's finger which was later used to identify him. 8. A witness called Mark Laird valiantly intervened by striking the first offender with his back pack. The first offender's reaction was to produce a knife and the two then fled the scene on the moped. Mr Laird was subsequently to identify the first offender. 9. On 25 October 2017 the second offender was involved in the theft of a moped. That clearly was stolen for the specific purpose of committing robberies. In the event, on 26 October 2017 at 2.30 in the afternoon, a woman was walking home with her children along a road in the Croydon area. As it happened she had just withdrawn £5,000 in cash when she was approached by the first offender who dismounted the moped, walked towards the woman with a knife and demanded that she give him her bag before he made off on the moped. 10. On 2 November 2017 a woman was in her car in a street in Maldon. She was in a car park when the offenders approached on the moped which had previously been stolen on 25 October 2017. They grabbed her bag from the back seat of her car. The bag contained property worth over £5,000, including a necklace and bangles. As it happened, police officers had seen the moped soon after and there was a chase but the offenders got away. 11. Eight days later, there were a series of offences committed on 10 November 2017. The second offender on that date was involved in the theft of another moped, again stolen for specific use in robberies. Thereafter that day there were robberies. At 9.50 in the morning a 70-year-old lady was walking down the road towards the bus stop. She heard the sound of a moped and when she turned she saw the offenders, who were wearing black, approaching on the moped, that being the moped previously stolen. The first offender then pulled her handbag from her shoulder. She was dragged to the ground in the process and suffered a fractured humerus. The two then sped off with the victim's handbag which contained bank cards and a small amount of cash. That was count 7 on the indictment. Later that day, the offenders fraudulently used the stolen bank cards at a particular store. 12. About an hour after this, the offenders targeted a woman in her early fifties walking along a particular road just before 11 o'clock in the morning. They were on the same moped. They rode up to her and the first offender grabbed her handbag. She was dragged across the road until she let go. The two then rode off towards an underpass and later discarded the handbag. All of the victim's bank cards and some £500 in cash had been stolen. The bank cards were then fraudulently used at the same store later that morning. It was this victim who suffered the chest injury that caused there to be concerns that she had fractured ribs. 13. Less than half an hour later that same day, the offenders robbed another lady of her handbag. She had been walking along a particular road when she was approached by the offenders on the same stolen moped. The first offender who had been riding pillion dismounted the moped and grabbed her handbag from her shoulder. During the struggle she was pulled to the ground. 14. Three days later the second offender was involved in a robbery of a 66-year-old lady. She had just picked up her grandchildren at around 3.30 pm on 13 November 2017 from school. She was walking along a particular road in the Croydon area when two men on a moped, one of whom was the second offender, approached her and took the handbag from her shoulder which contained bank cards. All this happened in the presence of the victim's grandchildren. She was left with bruises. Less than an hour later there was fraudulent use of the stolen bank cards. 15. On 19 November 2017 the second offender, using the like modus operandi, committed two thefts and three attempted or completed robberies with an accomplice (not the first offender). During that day's activities, the second offender and his accomplice had been seen with a Bowie knife and a brick. A few days before a moped had been stolen and that moped was used with altered vehicle registration numbers for the purposes of the offending occurring that day. 16. At 3.10 pm on that day, that is to say 19 November 2017, the second offender and his accomplice targeted yet another female victim. She was in the car park of a store in a particular road when the two approached her on the stolen moped and snatched her handbag from her shoulder. Either the second offender or his accomplice was holding a large knife at the time. 17. Just a few minutes later, at 3.15 in the afternoon, a man who suffered from a heart condition was sitting on a nearby park bench to rest. He had put down his bag on a bench next to him. The second offender and his accomplice then rode up on a stolen moped and stole the bag. As it happened, the bag in fact contained emergency medical heart equipment which the man required to have with him every day. 18. Some half an hour later the second offender, with his accomplice, then targeted another lone female. She was at Wimbledon Station when she felt a moped run into her on the pavement. The second offender and his accomplice attempted unsuccessfully to tug the handbag from her, causing her to fall to the ground. She was left with marks to her forearm. 19. Shortly after that, at around 4.30 pm, the second offender targeted another woman in Colliers Wood. He and his accomplice approached her from behind on a moped and made a grab for her handbag, spinning her around and then to the ground. She was then dragged along the ground, banging her head in the process before the two desisted. She was not in the event seriously injured, although very shaken. 20. Finally on that day, at around 5 o'clock, the second offender and his accomplice targeted another person, this time a man. He heard a moped approaching him from behind and then felt his shoulder bag being pulled. When the men (that is to say, the second offender and his accomplice) initially failed to take the bag off him, they both got off the moped. Each of them was carrying a knife. They shouted demands at the victim and he threw his bag at them. There was a struggle and the second offender's accomplice then struck the victim a blow with his knife when he had been holding up his arms to defend himself. He sustained a deep three centimetre wound to his left wrist. Further, both the second offender and his accomplice kicked or punched the victim whilst he lay on the ground. 21. A further offence occurred involving both these offenders on 26 November 2017 in the Croydon area. The victim again was a woman of mature years. The two approached her on a stolen moped. One dismounted and demanded that she hand over her handbag, which was then snatched from her and the two made off. Her cards which had been in the bag were then fraudulently used later that day. 22. Further offending was committed on 4 December 2017. On that date a woman was walking in Colliers Wood at around 7.40pm when the two offenders approached her, again on a stolen moped, and stole her handbag. A few minutes later, and just down the road, the two unsuccessfully attempted to steal a handbag from another woman using the same method. A few minutes again after that the offenders had more success, this time robbing a woman of her handbag as she left a store in Mitcham. 23. The most successful theft in terms of what the offenders succeeded in obtaining came shortly thereafter. The two came across a woman at a railway station in Mitcham. As it happens she was carrying £7,400 in cash and 5,000 Euros intended to fund a loft conversion and also had valuable bangles. In a matter of seconds, the pillion passenger (the first offender) grabbed it all and the two then sped off on the stolen moped. 24. Finally that day, at around 8 o'clock, at a shopping centre, a woman was approached by the offenders on a stolen moped and her handbag containing a passport and other travel documents and bank cards were stolen from her. 25. The first offender was arrested on 9 December 2017. He denied the offences in interview and made no comment to questions asked of him. The second offender was arrested in January 2018 and denied the offences when interviewed. Sentencing in the Crown Court 26. Impact statements were put in from a number of the victims. The effect on them has been naturally very significant. One described how she was now afraid to go out. Another said she did not want to go out on her own. All described how upset and shaken they had been; and so on. 27. The first offender has a poor record having 10 convictions for 22 offences. Some of those offences include theft and like offences: many related to drugs offending. He was currently on licence at the time having received a substantial sentence in Swansea Crown Court for supplying drugs in 2016. 28. The second offender also had a poor record, he having 11 convictions for 25 offences of various kinds, many being drugs offences. It is right to say that neither of the two offenders have previous convictions for offending of this particular kind or seriousness and it seems that drugs played a significant part in their lifestyle. 29. Pre-sentence reports had been obtained in the case of each of them. Those were by no means flattering towards these offenders. A lack of real remorse was identified, indeed the first offender is still disputing his guilt. In each case the writer of the report concluded that there was a significant risk of reoffending and that each offender was dangerous for the purposes of the Criminal Justice Act 2003 . In the case of the first offender there was, as acknowledged, a mistake in the report in that the writer of the report seems to have thought he, the first offender, had been involved in the incident comprising count 16 when the male victim had been stabbed and that, as is agreed, is incorrect. That mistake was, however, identified to the trial judge and he duly noted it. 30. The judge was addressed at some length by counsel for the prosecution and counsel for the offenders. He was duly referred to the sentencing guidelines and we will come on to deal with them shortly. 31. The judge started his sentencing remarks with these comments, which in our view were very much in point: "The type of robberies with which this case is concerned are really quite easy to commit if you are a determined criminal. You steal a moped, you get a helmet because that helps disguise your appearance. You then go out driving, normally two handed, pull up behind a victim, normally a woman, not always, you grab the bag off that person using such violence as you need to do to get what you want, and you are off. In order to frighten or injure you may carry a knife or some other weapon. Easy to commit because it is over almost before the victim knows it has happened, and of course it comes out of the blue, but highly dangerous to members of the public, because of course who knows what is going to happen to them. What if, in the instant, they resist? Or what if it is simply difficult to get their bag from them? Highly dangerous to the public and terrifying. The victim impact statements display that if it needs to be displayed. This type of crime must and will be deterred by lengthy prison sentences ... " Entirely apposite language. 32. The judge then went on carefully and fully to summarise the facts relating to the individual counts in respect of which these offenders had been convicted. Having done so, he then said this: "I have been addressed as to categorisation. I have already expressed a view about that, and it is plain that at least with some of these robberies, in their category they fall into the most serious type ... What I propose to do therefore, is to impose concurrent sentences in respect of each matter, but of course those concurrent sentences are higher than would otherwise be the case if they were standing alone, in order that the multiple offending and the immense criminality that these offences represent, can be appropriately represented by an appropriate sentence. And I will say at once, that as far as the most serious counts on these indictments are concerned, which are counts 7 and count 16, I consider that only an extended sentence is appropriate ... " The judge then proceeded to impose the sentences which we have outlined above. 33. It is plain from his remarks made previously in discussion with counsel that the judge had taken as the relevant guideline, contained within the Definitive Guideline relating to robbery as issued by the Sentencing Council, the guideline relating to street and less sophisticated commercial robberies. By reference to that particular guideline, for Category 1A offending the starting point for one offence is eight years' custody with a category range of seven to 12 years' custody. For Category 2A offending the starting point is five years' custody, with a range of four to eight years' custody, and for Category 2B offending the starting point is four years' custody with a category range of three to six years' custody. For Category A, matters demonstrating high culpability include use of a weapon to inflict violence, production of a bladed article or firearm or imitation firearm to threaten violence and use of very significant force in the commission of the offence. For the purposes of harm, Category 1 among other things requires serious physical and/or psychological harm caused to the victim. 34. The judge had also been referred to the guideline relating to professionally planned commercial robberies. For Category 1A offending under that particular guideline the starting point is 16 years' custody, with a range of 12 to 20 years' custody. But the judge plainly had rejected reliance on that particular guideline, instead preferring to use the guideline relating to street and less sophisticated commercial robberies. 35. On behalf of the Solicitor General today, Mr Schofield has renewed the argument that the judge was wrong to take that particular part of the guideline and instead it is suggested the judge should have deployed the guideline relating to professionally planned commercial robberies. Emphasis in this regard was put upon the significant degree of planning involved and suggested sophistication and organisation. There is no doubt that here there was planning and there is no doubt that here there was a campaign. However, we are of the clear view that in the circumstances of this case the judge was justified in adopting that part of the Definitive Guideline relating to street and less sophisticated commercial robberies. Indeed, in some ways these were a paradigm of street robberies: albeit of course accompanied by the use of stolen mopeds and a degree of planning. The circumstances of a case such as this are quite different from a case such as Attorney General's Reference (Kelly ) [2016] EWCA Crim. 750 , which was cited to us. 36. That being so, and so far as the first offender is concerned, the judge was entitled to take count 7 on the indictment as the most serious count which he faced. That, as we have said, involved dragging a 70-year-old woman along the ground so as to break her shoulder. That offending was certainly within Category A in terms of culpability, because of the use of very significant force, and it was Category 1 in terms of the serious harm caused. 37. Taken along with the targeting, the concealment by masks and helmets and the planning and so on, and allowing for such mitigation, primarily age, as was available, we consider that taking this count on its own a sentence after trial in the region of eight years might have been expected. In the case of the second offender, the judge, again entirely correctly, identified the most serious offence as that being contained in count 16: that is, the one where the male robbery victim had been stabbed. That, with the various aggravating factors involved, in our view taken on its own would have attracted a sentence of not less than 10 years and quite possibly more. Appeal against sentence 38. In the circumstances we have recounted, we can take the first offender's application for leave to appeal on the ground that the sentence against him was manifestly excessive shortly. It was nothing of the kind. The contrary is unarguable. The judge was plainly entitled to make a finding of dangerousness, as he did. One only has to have regard to the circumstances of the repeated offending, coupled if need be with the contents of the pre-sentence report, to see that that is so. That report is not to be taken as entirely vitiated by the identified error relating to the first offender being said to be involved in count 16 when he was not. In our judgment, the judge was plainly entitled to conclude that there was a significant risk of serious violence and was entitled to impose an extended sentence as he did. As to the challenge, rather faintly advanced, as to the length of the custodial term, it is also plain that that cannot, given the totality of the offending, be described as excessive. The Reference 39. The real point therefore is to consider the Solicitor General's argument with regard to this offending that there was, as is asserted, an unduly lenient sentence in the case of each offender. Mr Schofield on behalf of the Solicitor General has again drawn attention to the degree of planning involved: in the sense of mopeds being stolen in advance for the very purpose of the subsequent robberies and number plates altered. He draws attention to the modus operandi; to the fact that there were two wearing helmets and masks; and he draws attention also to the various other surrounding offences in the sense of stolen cards being used fraudulently and so on. Considerable emphasis is also placed on the fact, as found by the judge, that the two would carry knives and were prepared to present them if need be and indeed on occasion did so. Moreover, so far as the second offender was concerned he was involved in an incident where his accomplice, if not him, actually used the knife to stab. At all events, it is clear that knives were carried with at least a preparedness to use them if needed. 40. The real thrust of Mr Schofield's argument, however, is that the judge failed sufficiently to reflect the totality of the offending. If the sentences with respect to count 7 and count 16 taken on their own were to be put at an appropriate level (and in fact he proposed a level rather higher than this court would have taken) he says that the resulting figure is much too short when one factors in all the other robberies and attempted robberies, thefts, frauds and so on. 41. On behalf of the offenders it is disputed that these sentences were lenient, let alone unduly lenient. That is a necessary logical concomitant of the first offender's argument that the sentence in his case was manifestly excessive. In so far as the second offender is concerned Mr Hardy on his behalf has in fact described the sentence imposed upon him as "harsh". 42. It cannot, at all events, be disputed that these offences were planned. However, we think it is stretching it to an unacceptable degree to describe this offending as sophisticated. In many ways what the offenders did was in a sense opportunistic, albeit they had indeed planned to rob lone women walking in the street using stolen mopeds for the purpose. But whether or not one chooses to describe this offending as significantly planned or sophisticated, what undoubtedly remains is that this offending was brazen and was in all instances terrifying. Conclusion 43. Moped robberies occurring in streets and involving the use or potential use of significant force are currently a menace in many urban areas. Such offending unquestionably has significant effects on the victims: usually, although not invariably, lone women walking in the street. Such offending also causes great concern and apprehension within the local community. It undoubtedly calls for stern punishment. In the present case, as we have said, there are numerous offences of that kind. Moreover there could be no credit for a plea in the case of either offender, as the trials were contested. All those factors need to be emphasised. But there are other matters also to be taken into account. First is the fact that, although both offenders have poor records, they do not have any previous convictions for offending of this kind or of this seriousness. It would be wrong to say that they have shown themselves thus far to be entrenched criminals, notwithstanding their poor records. Furthermore, the judge was required to take into account considerations of totality; and moreover it is particularly important in our view to bear in mind, as the judge plainly did bear in mind, that the first offender was only 19 at the time and the second offender was 20. 44. An extended sentence of 15 years with a custodial element of 12 years and an extended sentence of 17 years with a custodial element of 14 years, on any view, taken on their own, are sentences of considerable length. They will seem to be particularly severe from the perspective of persons of such an age who still have the capacity to mature and to grow out of their criminality and to mend their ways and who also will potentially be confronted with the risk of institutionalisation. 45. We think in a case of this kind a "stand back and appraise" approach is necessary. That clearly is what the judge, who had had the benefit of conducting the trial, commendably had done. Our conclusion is that whilst the sentences imposed in the case of each offender may be described as being on the lenient side, and might perhaps have been somewhat longer, they cannot fairly or properly be described as unduly lenient. Thus, although we are prepared to give leave in this particular case given the circumstances, we dismiss this Reference.
{"ConvCourtName": ["Crown Court at Croydon"], "ConvictPleaDate": ["29 June 2018"], "ConvictOffence": ["fraud", "robbery", "attempted theft", "theft"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Croydon"], "Sentence": ["extended sentence of 15 years, comprising a custodial term of 12 years and an extension period of three years", "extended sentence of 17 years, comprising a custodial term of 14 years with a like extension period of three years"], "SentServe": ["concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["20", "19"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["targeting solitary women in the street"], "VictimType": ["a 70-year-old woman"], "VicNum": ["data not available"], "VicSex": ["relating to the second offender a male victim"], "VicAgeOffence": ["66-year-old", "70"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["A witness"], "DefEvidTypeTrial": ["He denied the offences in interview"], "PreSentReport": ["significant risk of reoffending"], "AggFactSent": ["significant degree of planning", "concealment", "sophistication and organisation", "currently on licence at the time", "record having 10 convictions", "lack of real remorse", "knives", "targeting solitary women"], "MitFactSent": ["age"], "VicImpactStatement": ["Impact statements were put in from a number of the victims"], "Appellant": ["ATTORNEY GENERAL"], "CoDefAccNum": ["KARIM HUSSAIN\n \n MICKELLE ALEXANDER"], "AppealAgainst": ["sentences"], "AppealGround": ["the judge failed sufficiently to reflect the totality of the offending", "ground that they are unduly lenient", "the judge was wrong to take that particular part of the guideline and instead it is suggested the judge should have deployed the guideline relating to professionally planned commercial robberies", "ground that it is manifestly excessive"], "SentGuideWhich": ["Definitive Guideline relating to robbery as issued by the Sentencing Council", "totality"], "AppealOutcome": ["dismiss"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["In our judgment, the judge was plainly entitled to conclude that there was a significant risk of serious violence and was entitled to impose an extended sentence"]}
{"ConvCourtName": ["Crown Court At Croydon"], "ConvictPleaDate": ["2018-06-29"], "ConvictOffence": ["attempted theft", "fraud", "theft", "robbery"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Croydon"], "Sentence": ["extended sentence of 17 years, comprising a custodial term of 14 years with a like extension period of three years", "extended sentence of 15 years, comprising a custodial term of 12 years and an extension period of three years"], "SentServe": ["Concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know", "Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Stranger"], "VictimType": ["Individual person"], "VicNum": ["Don't know"], "VicSex": ["Mixed"], "VicAgeOffence": ["66", "70"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["A witness"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["concealment", "sophistication and organisation", "significant degree of planning", "lack of real remorse", "currently on licence at the time", "record having 10 convictions", "Armed /weapon", "targeting solitary women"], "MitFactSent": ["age"], "VicImpactStatement": ["Yes"], "Appellant": ["Attorney General"], "CoDefAccNum": ["1"], "AppealAgainst": ["sentences"], "AppealGround": ["the judge failed sufficiently to reflect the totality of the offending", "the judge was wrong to take that particular part of the guideline and instead it is suggested the judge should have deployed the guideline relating to professionally planned commercial robberies", "ground that it is manifestly excessive", "ground that they are unduly lenient"], "SentGuideWhich": ["totality", "Definitive Guideline relating to robbery as issued by the Sentencing Council"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["In our judgment, the judge was plainly entitled to conclude that there was a significant risk of serious violence and was entitled to impose an extended sentence"]}
96
Neutral Citation Number: [2013] EWCA Crim 2420 Case: No: 201300403 B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 3rd December 2013 B e f o r e : LORD JUSTICE TREACY MR JUSTICE WILKIE MRS JUSTICE ANDREWS DBE ---------------------------------- Between: R E G I N A v MAXIM PETER MOLE ---------------------------------- 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 M McDonagh appeared on behalf of the Appellant J U D G M E N T (Approved) LORD JUSTICE TREACY: 1. This appeal is concerned with a jury irregularity. 2. On 19th December 2012, in the Crown Court at Truro, this appellant was convicted unanimously of affray. He was sentenced on the following day to a 12 month community order with a curfew requirement. A co-accused was acquitted of affray. 3. The nature of this appeal is such that it is not necessary to go into the facts. All we need to say is that the charge arose out of a fight in a public house in Helston on 11th December 2011. Much of the incident was recorded on CCTV. A man had suffered a fractured jaw. 4. The case is concerned with what happened after the jury retired. They had been sent out to consider their verdicts at approximately 12.20 pm on 19th December. They returned at 4.03 pm with unanimous verdicts. However, on the following day, shortly before the appellant was due to be sentenced, a note was sent to the judge by one of the jury. She stated that whilst the jury had returned a unanimous guilty verdict in the case of the appellant, her agreement was secured because she felt that she had no choice in the matter. She explained: "We tried to send you a note explaining but the usher told us you would not accept it and that we would have to 'stay here until you all agree'. When I asked for clarity I was told 'for as long as it takes' or until the judge sees fit to go with the majority anyway." 5. The juror referred to the frustration of other jurors and said that she had felt that the situation was futile and intimidating. She spoke of being "forced to go with the majority". 6. At the end of his summing-up on 19th December, just before sending the jury out, the Recorder had said this: "You may have heard about majority verdicts, but there is no question of a majority verdict at this stage. You should do your best to reach a unanimous verdict - that is one on which you are all agreed - as to whether each defendant is guilty of the charge brought against him. If you have got any questions, then please send me a note and I will do my best to help." 7. When the juror's note was drawn to the Recorder's attention on the following morning, he rightly felt that there was nothing he could do at that stage and proceeded to sentence. However, the jury bailiff was asked to provide a note of what had taken place and he did so on the same day. We have a copy of that note. It starts by saying: "On the 19th December 2012 I acted as jury foreman on the above case." That is clearly a slip, but a somewhat ironic one in the circumstances. The relevant part of the note reads as follows: "I was summoned to the jury deliberating room at about 3pm and was handed a jury note. I explained the procedure that I would get the note down to the Judge and they would then be called back into court for their question to be answered. Though it may take a little while as he was part way through dealing with another case at that time." So far, so good. But the note continues: "I looked at the note which read something like, 'We have a unanimous decision on Mitchell and we are currently 11 to 1 on Mole. Can we have some guidance?' I said to them that they have been asked to try to reach unanimous verdicts at the present time and that the judge may well ask them to continue to try to reach unanimous verdicts and that the Judge would normally decide when the time is right to give them majority directions. With that I was told not to bother with the note." 8. Based on that note, the appellant submits that the jury bailiff acted in contravention of his oath and had communicated inappropriately with the jury. He had prevented appropriate communication taking place between judge and jury in relation to a note which set out legitimate concerns relevant to the jury's deliberations. The bailiff had given the jury incorrect information to the effect that they would have to remain in the jury room until all agreed and/or for "as long as it takes". These actions may have prejudiced the appellant or amounted to undue pressure upon a juror or jurors. 9. There is some conflict between what the juror says took place and the bailiff's account. It might have been necessary for further enquiries to be made in order for that apparent conflict to be resolved, albeit that enquiries of this sort are only rarely and exceptionally to be embarked on: see R v Adams [2007] 1 Cr App R 34 . However, it seems to us that in the circumstances we do not need to embark upon an enquiry of that nature. The words of the jury bailiff's oath are: "I will not suffer any person to speak to them, nor will I speak to them myself unless it be to ask them if they are agreed upon their verdicts." The Crown Court Manual makes clear that the only time that a jury bailiff may speak to the jury after taking the oath is at the direction of the court or to ask them if they have agreed upon their verdict or wish to return to court. Whilst there is no doubt implicit authorisation from the court for a jury bailiff to speak to jurors about administrative or logistical matters wholly unrelated to the substance of the case being tried, the oath must otherwise be strictly observed. 10. It seems to us that on the bailiff's own account, having initially dealt appropriately with the jury when they indicated that they had a note for the judge, he then took it upon himself to cross the prohibited line once he said what he did after he had looked at the note and saw that it related to a question of a majority verdict on this appellant. 11. The jury were seeking guidance from the judge, they were not seeking guidance from the jury bailiff. By the time the note was provided the minimum period for the giving of a majority direction had in fact elapsed. What the bailiff did was to interpose himself between the judge and jury in a way that should not have occurred. The jury were entitled to the assistance of the judge once it was convenient for the judge to have the jury back into court. The judge was entitled to know the state of the jury's deliberations and to make a decision for himself at that point as to what course to take. This necessary part of the process was pre-empted by the bailiff, who in effect usurped the judge's position, reiterated part of the judge's directions and predicted how the judge would seek to deal with the jury's note. 12. The respondent's position is that the bailiff, assuming his version is correct, did no more than repeat the judge's instructions to the jury in the summing-up and that what he had said could not be treated as a threat or undue pressure. Moreover, once the bailiff had spoken, according to his note the jury no longer wanted the note to be forwarded to the judge. It seems to us that this last observation is beside the point. If the jury bailiff should not have spoken as he did, the jury's reaction is irrelevant, being consequent on a prohibited conversation. 13. It was also argued that the jury in any event had ample opportunity before delivering a unanimous verdict to express any concerns and none had in fact been raised. Whilst it is true that this court will be highly sceptical about complaints raised after verdict by a juror (see R v Lewis and others [2013] EWCA Crim 776 and R v Adams at paragraph 25), we consider that the situation is different in this case. 14. We are not proposing to deal with the matter on the basis of what the juror said at all. The jury bailiff's note demonstrates that there is substance in the claim of irregularity raised by the appellant. This is not a situation where the court is enquiring into the nature and detail of the jury's deliberations, it is a situation in which the court is examining whether appropriate procedures surrounding the jury deliberations were followed. It is no different from the sort of enquiry that might follow, for example, if there were an assertion that papers revealing matters not in evidence before the jury had mistakenly entered the jury room. We therefore do not accept the argument that this should simply be treated as a post-verdict complaint as to interaction between jurors in the jury room and thus disregard it. 15. It is also submitted by the respondent that in any event the conviction should be regarded as safe because it is clear that the juror who wrote the note was in the minority and, had she maintained her position, a valid guilty verdict could still have been returned after a majority direction. It is submitted that in effect the breach of the rules by the jury bailiff was no more than a technical one. 16. That is not a line of reasoning which we are prepared to countenance. The prohibition on improper communication with a jury whilst deliberating is a strong one. A jury bailiff cannot trespass upon territory which is reserved for the judge. One of the protections available to a defendant is that proceedings take place in open court and are recorded so that anything said about the case in the presence of the jury is known to all. A communication by a bailiff to the jury in their retiring room touching on the substance of the case defeats the object of open justice. It can be no answer to say that the result would probably have been the same in circumstances where the integrity of the process has been compromised, as it was here. Moreover, there are necessary formalities for a majority verdict under the Juries Act 1974 which have not been complied with. 17. The effect of the bailiff's intervention was, as we have pointed out, one which interfered with the free communication between judge and jury. On the bailiff's own account, his interjection had an effect upon the conduct of the jury. In the circumstances we consider that the only option is to hold that there was a very serious irregularity in this trial which of itself renders the verdict unsafe. 18. Nothing we have said goes behind the clear common law rule affirmed by the House of Lords in R v Mirza [2004] 1 AC 1118 , to the effect that evidence after verdicts directed to matters intrinsic to the deliberations of jurors is inadmissible. Our decision is based not on the matters asserted by the juror in her note, but on the accepted evidence of what the jury bailiff did and said in contravention of his oath. The distinction between the inpermissible enquiry into matters intrinsic to the jury's deliberations and matters which are extrinsic to those deliberations may not always be easy to define. It is, however, clear to us on which side of the line this case falls. Accordingly, we quash the conviction. 19. We have heard submissions from the parties as to whether there should be a re-trial. We note that the offence is one which is alleged to have taken place some two years ago and that the trial took place one year ago. We note that in the intervening period this appellant has in fact been subject to a community order and that he has within that period been subject to a curfew requirement of some three months. In the circumstances we do not consider that there the interests of justice require a re-trial and we decline to order one.
{"ConvCourtName": ["Crown Court at Truro"], "ConvictPleaDate": ["19th December 2012"], "ConvictOffence": ["affray"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Truro"], "Sentence": ["12 month community order with a curfew requirement."], "SentServe": ["data not available"], "WhatAncillary": ["community order"], "OffSex": ["He"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["A man"], "VicNum": ["data not available"], "VicSex": ["A man"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["fractured jaw.", "CCTV"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["A co-accused"], "AppealAgainst": ["conviction"], "AppealGround": ["jury irregularity."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["quash the conviction."], "ReasonQuashConv": ["jury bailiff did and said in contravention of his oath."], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["Crown Court At Truro"], "ConvictPleaDate": ["2012-12-19"], "ConvictOffence": ["affray"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Don't know"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court At Truro"], "Sentence": ["12 month community order with a curfew requirement."], "SentServe": ["data not available"], "WhatAncillary": ["community order"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Don't know"], "VictimType": ["Individual person"], "VicNum": ["Don't know"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Medical", "CCTV"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["1"], "AppealAgainst": ["conviction"], "AppealGround": ["jury irregularity."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["quash the conviction."], "ReasonQuashConv": ["jury bailiff did and said in contravention of his oath."], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
143
Neutral Citation Number: [2008] EWCA Crim 1863 Case Nos: 200705648 D2 200802856 C1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 8/8/08 Before: LORD JUSTICE LATHAM MR JUSTICE GRIGSON and MR JUSTICE MACDUFF - - - - - - - - - - - - - - - - - - - - - Between: R v Freeman R v Crawford - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Rupert Hallowes on behalf of Daniel Robert Wallace Freeman Charlotte O'Connor on behalf of the Crown Rupert Gregory on behalf of Jerome Crawford Peter Gray on behalf of the Crown Hearing date: 21 July 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Latham : 1. These applications raise in different ways the question of the appropriate direction to the jury where bad character evidence within the meaning given to that phrase in s.98 of the Criminal justice Act 2003 is put before the jury by the Crown. In particular they raise the question of how a judge should deal with the cross-admissibility of evidence relating to two or more counts in the same indictment. This court has considered the problem in the past, in particular in Chopra [2006] EWCA Crim 2133 , Wallace [2007] EWCA Crim 1760 , S [2008] EWCA Crim 544 and DM [2008] EWCA Crim 1544 . It may be helpful to draw the threads of these decisions together. We have accordingly given leave to appeal to both appellants; at the end of the hearing we announced our decision, namely that both appeals would be dismissed. This joint judgment sets out our reasons. Freeman 2. On the 10 th October 2007 at the Crown Court at Guildford, the appellant was convicted of three counts of indecent assault and two counts of sexual assault of a child. He was later sentenced to a total of 42 months imprisonment. At the hearing we heard and allowed his appeal against that sentence, which we reduced to one of 30 months imprisonment. 3. The indictment related to complaints made by two young girls, L, who was 6 years old at the time of the events about which she complained, and B who was 9 years old at the relevant time. As far as L was concerned her complaint related to events on the 19 th April 2002 when she was staying in the appellant’s flat with her mother and brother who were going to a family wedding the following day. At some point in the evening, L’s mother went out with the appellant’s partner. L said that the appellant had then entered the room where she was sleeping, and put his hands under the duvet and touched her body around the chest and neck, kissed her on and around her mouth, rubbed her side, stomach and thighs and rubbed her vaginal area. He had left the room but then returned on two separate occasions and repeated the assaults. L’s mother said that when she returned home, she saw the appellant emerging from L’s bedroom. L made no complaint at the time. The matter however surfaced in 2006 when L’s mother questioned her about whether anything had happened. L said that the appellant had gone into her room. L’s mother took her to the police station in Cork, Eire where they were then living. A statement was taken from L and her mother without the safeguards which would have been in place in this jurisdiction. L later told her mother that something else had happened and L’s mother took her in September 2006 to the police station in Farnham in Surrey where she made a second statement in which she made the allegations which form the subject matter of the counts. 4. The other two counts related to the child B. They arose out of an event on the 23 rd April 2006 when B had visited the appellant’s flat with her parents. At one point B had been alone in the nursery with the appellant when the appellant offered B a foot massage. He started to rub her legs and then moved his hands up to touch her vaginal area over her knickers. He then did the same with the other leg, once again touching her vaginal area over her knickers. B told her parents what she said happened later that day. B was interviewed on the 17 th May 2006 and gave the account we have just set out. 5. The appellant was interviewed in relation to the allegations made by B on the 8th June 2006. He said that he had massaged B’s foot for no more than twenty five seconds as she had pins and needles, but had not touched her vaginal area. He was interviewed about the allegations made by L on the 16 th October 2006 when he denied that he had even gone into the room where L was sleeping. He stated that L’s mother may have influenced her. 6. Counsel made an application to sever the counts relating to the two incidents on the basis that the joint trial would prejudice the appellant’s ability in particular to explore in detail reasons for the lateness of the complaint by L. The judge rejected the submission. He held that the fact that L had made her complaint late was not an unusual occurrence where young children were concerned. He accepted that if anything emerged to suggest that L’s evidence was contaminated, then he would have to consider exercising his powers under s. 107 of the Criminal Justice Act 2003 either to direct the appellant’s acquittal, or order a retrial. 7. At the end of the prosecution case, the appellant’s counsel submitted that there was no case to answer in respect of the allegation made by L on the basis that the prosecution evidence was unreliable and had been obtained in a highly unsatisfactory manner. The judge rejected the submissions. The appellant then gave evidence generally in accordance with the account that he had given in interview. 8. The judge in his summing-up reminded the jury of the appellant’s submissions as to the potential unreliability of L’s evidence and in particular on the basis that it might have been influenced by the mother. He then dealt with the question of how the jury should treat the evidence of each of the complainants when considering the evidence of the others. He said: “Moving on to the next topic. As you know, in this trial you are considering two alleged incidents, separated in time by a period of four years, and the topic I am considering now is the extent to which the evidence of one incident is relevant to your judgment in respect of the other. If you decide, and you are sure about it, that Mr Freeman is guilty in respect of one of the incidents and the evidence of one of the two witnesses, the complainant witnesses, then when you are considering the evidence of the other it would be evidence that he has a bad character in the sense that he had committed offences other than the ones that you are considering and it would be important for you to understand how you could use that. If you decide, and you are sure about it, that Mr Freeman did commit offences against one of the two young girls and he, therefore, has a bad character in that sense, you must not convict him in respect of the offence alleged by the other girl solely, mainly, because of the conclusion you have previously reached. But what the prosecution do say is that a conviction, if you reach it, in respect of one of the girls would demonstrate a tendency to commit sexual offences against young girls. The prosecution say that there are similarities between the circumstances and the nature of the allegations which, if you find one proved would demonstrate a tendency to commit offences of a similar kind. Well, you will bear in mind that while there is no minimum number of previous incidents necessary to establish such a tendency, the fewer the incidents the less firm is the basis for deciding a person has such a tendency and, in any event, if you decide that Mr Freeman did commit offences against one of the two girls, that would be no more than background when you are considering the evidence in relation to the other. What really matters in respect of each of the two groups of counts in the indictment is the evidence relating to that group, but you may take the other into account when you are considering one in the way I have just described.” 9. The appellant appeals on the ground that the judge was wrong to refuse to sever the indictment, wrong to refuse the submission of no case to answer in relation to L, the directions given to the jury regarding admissibility were insufficient and that the judge erred in referring to bad character at all during the course of his summing-up. Crawford 10. On the 24 th April 2008, before Mr Recorder Boyce QC, the applicant was convicted of two counts of robbery and was sentenced to 1014 days imprisonment on each count to run concurrently. The first count arose out of an incident shortly before midnight on the 23 rd February 2007. Linette Tadeo was on her way home on her own. She got off the bus in New North Road, London N1 just before the junction with Wimbourne Street, she noticed two black men standing on the corner on the other side of the road. As she turned in to Wimbourne Street she realised she was being followed by one of those men. She got her keys out of her handbag ready to get in to her house as soon as possible. But she was confronted by the man who was following her. He was wearing a cream hooded jacket with a fur trim, the hood was up. He was wearing dark track suit bottoms and white trainers. As he came in front of her, he tugged at her handbag, eventually managing to extract it from her and then ran off. This all occurred under a street lamp. She described the man as having a shaven head and acne marks, five foot five to five foot six tall and of medium build. He ran away in the direction of New North Road. On the 21 st April 2007 she picked out the appellant on a video identification parade. 11. The second count arose out of an incident, again on New North Road, which occurred on the 11 th March 2007 just before 6pm. Mena Keys was walking along the road towards Old Street tube station when she sensed that someone was behind her, she stopped and turned round and confronted a man she described as a lightly toned black man in his mid to late twenties, between five foot six and five foot eight tall wearing a dark baseball cap and darkly coloured clothing. He came straight up to her and grabbed her bag which was over her right shoulder. She tried to hold on to it, but eventually had to let go. The man then ran away. She attended a video identification procedure on the 23 rd April 2007 and identified the appellant as the man who had robbed her. 12. The Crown applied to adduce bad character evidence in two regards, firstly in relation to three convictions for street robbery, two of which had occurred in February 2005 and one of which had taken place only three weeks after one of the instant offences, and immediately across the road from that offence. The Crown submitted that the methodology was virtually identical and formed part of a series of similar offences. Secondly, they applied to be entitled to use the evidence from each of the offences in question in relation to the other. The defence argued that the Crown should not be entitled to adduce the evidence on the grounds that to do so would simply be using bad character to bolster an otherwise weak case which this court in Hanson [2005] 2CR App R 21 had said should not be permitted. 13. The judge said that in his view it was not a weak case. The evidence, in his view, was capable of establishing propensity, and it would not be unfair either under s.101 (3) of the Criminal Justice Act 2003 or s.78 of The Police and Criminal Evidence Act 1984 to admit the evidence. He found both complainants to be impressive witnesses and certain in their identification of the applicant. He concluded that as there was no evidence to suggest there was the possibility of collusion or contamination between the witnesses, following Chopra and Wallace the evidence in relation to each robbery was admissible in respect of the other. He later rejected a submission of no case to answer. 14. In relation to bad character, having set out the facts of the three convictions, he said: “What then is the position in relation to that and why have you heard about his previous convictions? The position is that you now know that the defendant has previous convictions which are capable of showing that he has a propensity to commit the sort of offence that he is alleged to have committed in the case before you. The propensity displayed is to approach lone females in the street and to grab their handbags as they wear them on their shoulders and tug it from them and flee. But you should not conclude that the defendant is guilty of the offences before you merely because he has those convictions. Next, although his previous convictions are capable of showing such a propensity, this is a simple matter for you as to whether or not it does show such a propensity. Next if you conclude that those convictions do show such a propensity, that alone does not prove his guilt in this case.” 15. Then turning to the two counts in the indictment he said: “So what is the position when you are considering two offences where two people say that within three weeks in the same location, effectively, this defendant committed a similar offence? The position is that in relation to the two counts in the indictment you can, if you think it appropriate, treat the evidence on one as being admissible to support the evidence in relation to the other providing that the possibility of collusion or contamination between Miss Tadao and Miss Keys can be excluded. … If you think it appropriate, you may use the evidence in one in support of the evidence of the other, bearing in mind all of the warnings I gave you in relation to propensity evidence regarding his previous convictions just a moment ago. Not withstanding that you may use the evidence on count one in relation to count two, and vice versa, it is still the case, of course, that you must return separate verdicts in this case and you must consider ultimately the case against and for the defendant on each count separately…” 16. There are three grounds of appeal. First, applying Turnbull [1976] Crim App R 132, it was wrong to reject the submission of no case to answer. Second, the judge was wrong to permit the Crown to put the convictions before the jury. Third, the judge was wrong to direct the jury that it was entitled to use the evidence of each of the robberies when considering the other. The bad character directions 17. As this court explained in Chopra , evidence in relation to one count in an indictment is capable of being admitted as bad character evidence in relation to any other count in the indictment if it meets any of the criteria or gateways in s.101 (1) of the 2003 Act . The provisions of this part of the 2003 Act replace the previous common law rules. But some confusion has arisen in a number of cases where the court has been considering s.101 (1) (d), where it is said that the bad character evidence is relevant to an important “matter in issue” between the defendant and the prosecution. S.103 (1) provides, so far as relevant, that the matters in issue include the question of whether the defendant has a propensity to commit offences of the kind of which he is charged, except where the court considers that such a propensity does not make it more likely that he is guilty of the offence. The confusion that has arisen is exemplified by the case of Chopra . In that case the defendant was a dentist who was charged with indecent assault of three teen-age patients, on three separate occasions. On each occasion he was said to have touched or squeezed their breasts. The court held, first, that the evidence in relation to each incident amounted to bad character evidence for the purposes of s.98 in relation to the other counts. Secondly, in determining its admissibility, the common law rules relating to propensity and similar fact evidence no longer applied. The sole question was whether, in such a case, the bad character evidence met the criteria in s.101 (1) (d) and s.103 of the 2003 Act . The judgment dealt mainly with the question of whether the evidence was capable of establishing a propensity to commit such an offence. However, it is quite apparent from the way the court treated the evidence that it concluded that each of the allegations was capable of making it more likely that the other allegations were true because of the similar nature of the evidence in each case. In other words, whether or not the incidents were capable of establishing a propensity, each was admissible in itself as evidence to support truth of the other allegations. 18. In Wallace the court was dealing with a different scenario. The evidence that the prosecution adduced in relation to a series of robberies was such as to show, in the Crown’s submission, that they must have been committed by the same person or persons. This court held that, even if it had not been the original intention of those drafting the statute, this meant that the evidence in relation to each of the robberies amounted to bad character evidence for the purpose of s.98 of the 2003 Act with the consequence that it could only be admitted if it met the criteria or gateways in s.101 . But the court made the point that quite clearly where there was evidence of such similarities, that inevitably meant that the evidence was admissible under s.101 (i) (d). 19. The evidence may provide, for example, strong circumstantial evidence that the offences were committed by the same person, and that the defendant is that person. This point was made clearly by Moses LJ in DM. It follows that when it is submitted that evidence in relation to one count is admissible in relation to another, it may not always be helpful to concentrate on the concept of propensity when the nature of the evidence is such that, in itself, it is capable of being probative in relation to another count, in the sense that it makes it more likely either that the offence was committed ( Chopra ) or that this defendant committed the offence ( Wallace ). 20. In some of the judgments since Hanson , the impression may have been given that the jury, in its decision making process in cross-admissibility cases should first determine whether it is satisfied on the evidence in relation to one of the counts of the defendant’s guilt before it can move on to using the evidence in relation to that count in dealing with any other count in the indictment. A good example is the judgment of this court in S . We consider that this is too restrictive an approach. Whilst the jury must be reminded that it has to reach a verdict on each count separately, it is entitled, in determining guilt in respect of any count, to have regard to the evidence in regard to any other count, or any other bad character evidence if that evidence is admissible and relevant in the way we have described. It may be that in some cases the jury will find it easier to decide the guilt of a defendant on the evidence relating to that count alone. That does not mean that it cannot, in other cases, use the evidence in relation to the other count or counts to help it decide on the defendant’s guilt in respect of the count that it is considering. To do otherwise would fail to give proper effect to the decision on admissibility. Appeals Freeman 21. In our view, the judge cannot be faulted for his decision in relation to severance. That was a matter for his discretion. He has not been shown to have erred in any way in his approach. We do not accept that the appellant was prejudiced in approaching the case involving L. We cannot see that L’s counsel was precluded in any way from exploring the circumstances which gave rise to the ultimate complaint by L by the fact that the jury was also considering the case of B. 22. So far as the submission in relation to L is concerned, there was clearly evidence to go before the jury. And, in our view, the evidence given by each child was sufficiently similar for it to be capable of supporting the evidence of the other. It was clearly a matter for a jury to determine whether or not the criticisms in relation to L were sufficient to undermine the prosecution case. 23. So far as the summing-up on cross-admissibility was concerned, for the reason we have already given, it is clear that the evidence was admissible under s.101 (1) (d) of the 2003 Act . Although the judge dealt with it on the basis of propensity, there could be no prejudice to the appellant. None of the submissions that have been made affect the safety of these convictions. Crawford 24. This was not a fleeting glimpse case. There were two clear identifications by witnesses whose evidence was obviously considered impressive by the judge. It follows that the judge was right to reject the submission of no case to answer. 25. This was not a case where pure propensity evidence was sought to be adduced to bolster a weak case, which is what Hanson was concerned with. The evidence of the previous convictions was clearly material evidence to support the Crown’s case that the appellant was the person who had committed the robberies in question. They had been committed in similar circumstances; and one had been committed within two days in the very near vicinity of one of the offences with which the jury was concerned. Although the judge referred to propensity, this is a case where the convictions were admissible in themselves as supporting the Crown’s case. As far as the two offences were concerned, each was admissible in relation to the other for the same reason. This was not because they showed propensity. The evidence of each made it the more likely that it was the appellant who had committed the other. 26. None of the submissions in our judgment undermines the safety of the conviction.
{"ConvCourtName": ["Crown Court at Guildford"], "ConvictPleaDate": ["24th April 2008", "10th October 2007"], "ConvictOffence": ["robbery", "sexual assault of a child", "indecent assault"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Guildford"], "Sentence": ["42 months imprisonment.", "1014 days imprisonment"], "SentServe": ["a total of 42 months", "concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["staying in the appellant’s flat"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["staying in the appellant’s flat with her mother"], "VictimType": ["two young girls,"], "VicNum": ["other two counts", "second count"], "VicSex": ["two young girls"], "VicAgeOffence": ["B who was 9 years old", "6 years old"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["her house"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["video identification parade.", "her complaint"], "DefEvidTypeTrial": ["he denied"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["appellants"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["conviction"], "AppealGround": ["the judge erred in referring to bad character", "ground that the judge was wrong to refuse to sever the indictment", "directions given to the jury regarding admissibility were insufficient", "wrong to refuse the submission of no case to answer"], "SentGuideWhich": ["Criminal justice Act 2003"], "AppealOutcome": ["both appeals would be dismissed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["it is clear that the evidence was admissible", "clear identifications by witnesses whose evidence was obviously considered impressive"]}
{"ConvCourtName": ["Crown Court At Guildford"], "ConvictPleaDate": ["2008-04-24", "2007-10-10"], "ConvictOffence": ["robbery", "indecent assault", "sexual assault of a child"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Guildford"], "Sentence": ["Crawford", "42 months imprisonment."], "SentServe": ["Concurrent", "Don't know"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individuals"], "VicNum": ["2", "2"], "VicSex": ["All Female"], "VicAgeOffence": ["9", "6"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["video identification parade.", "Victim testimony"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["conviction"], "AppealGround": ["wrong to refuse the submission of no case to answer", "ground that the judge was wrong to refuse to sever the indictment", "the judge erred in referring to bad character", "directions given to the jury regarding admissibility were insufficient"], "SentGuideWhich": ["Criminal justice Act 2003"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["clear identifications by witnesses whose evidence was obviously considered impressive", "it is clear that the evidence was admissible"]}
239
No: 200900704/A8 Neutral Citation Number: [2009] EWCA Crim 702 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 24 March 2009 B e f o r e : LADY JUSTICE HALLETT DBE MR JUSTICE OPENSHAW HIS HONOUR JUDGE FRANCIS GILBERT QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - R E G I N A v OWAIN HUW OWEN - - - - - - - - - - - - - - - - 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 D Roberts appeared on behalf of the Appellant Mr J Philpotts appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T 1 LADY JUSTICE HALLETT: In the spring of 2000 the appellant, who was then aged 26, began a relationship with the mother of Shauna Griffiths. Shauna had been born on 15 November 1999. There were no concerns about her health or subsequent development until 9 June 2000. At quarter to nine on the evening of 9 June paramedics were called to an address in Porthmadog. Shauna was discovered on the floor. She was grey in appearance and blue around the lips. Her airway was partially obstructed. She was not breathing, her pupils were dilated. The appellant was there with her. He was hysterical. Shauna was stabilised and taken by helicopter to hospital. There doctors discovered extensive retinal haemorrhaging, cerebral bleeding, and fractures to the radius and ulna, which were indicative of her having been violently shaken. A consequential asphyxial injury starved her brain of oxygen causing a significant brain injury. She suffered four limb spasticity. She was to remain for the rest of her short life blind, unconscious, unable to be moved, unable to be fed orally and requiring continual and regular suction to clear her airways. 2 The appellant was interviewed on 12 and 22 June 2000. He denied assaulting the child and claimed that she had a fit and he had caused the injuries trying to resuscitate her. He maintained his false account for several months. However, he pleaded guilty at the earliest opportunity to a section 20 offence of inflicting grievous bodily harm. On 9 March 2001 he was sentenced to three years' imprisonment. He was warned in specific terms by the sentencing judge that if Shauna died he might face a return to prison. 3 Shauna was cared for and later adopted by a couple whose devotion to her was truly inspiring. They cared for her from the year 2000. Over the years she suffered a number of complications. Her illnesses became more complex and required more frequent hospital treatments. 4 In May 2007 she became ill for the final time. The doctors treating her decided that she was unlikely to recover and the decision was taken that she should be escorted home to die with her adoptive parents. However, she never made the journey home. On the way the doctors realised she was near the end, the ambulance was stopped in the roadside and, with her adoptive parents at her side, she died. 5 The post-mortem found that the cause of death was pneumonia secondary to cerebral palsy. The palsy was caused by a non-accidental head injury inflicted by shaking or impact. 6 The appellant was arrested again. He was interviewed again on 21 October 2008. He declined to answer any questions. However, on 19 December 2008 in the Mold Crown Court, the appellant pleaded guilty to a single count of manslaughter. The judge, His Honour Judge Rogers QC, had before him a victim impact statement from Shauna's adoptive father describing the great loss that he and his partner had at her death. The judge also had the benefit of a letter from the appellant which begins with the words "This is the hardest letter I've ever had to write." Further there was a character reference from one of the appellant's colleagues upon him and a pre-sentence report. The author of the report recorded that the appellant felt uncomfortable discussing the offence but did not seek to minimise his responsibility for Shauna's injuries. 7 It was said that at the time of the offence the appellant was misusing alcohol in an attempt to cope with his mother’s death. Mr Roberts on the appellant's behalf sought to assure us that since his release from prison he had addressed his alcohol problem and essentially turned his life around. On our reading of the facts he did not do this immediately because we note a conviction for drink driving in 2005. 8 However, Mr Roberts brought to our attention a number of other matters. The appellant is now a self-employed joiner. He has been able to re-establish his relationship with his 18-year old daughter from another relationship. He also developed a relationship with a new partner which came to an end when she discovered she was pregnant with their now 18-month old daughter. His partner is anxious not to involve the social services in her life (which would become necessary if she were to live with the appellant) and so they parted. The appellant decided he will not make contact with his younger daughter until she is older. 9 The author of the pre-sentence report assessed the risk that the appellant poses of committing further offences and decided he was at low risk of reconviction, albeit the very facts of the offence with which we are concerned indicate he would be considered a risk of causing harm to children in his care. 10 The author of the report considered a custodial sentence virtually inevitable, but in what the author described as “the unlikely event” that the judge might consider an alternative sentence, proposed the possible penalty of a community penalty or a suspended sentence with a prohibited activity requirement, the prohibited activity being contact with Shauna's adoptive parents. 11 His Honour Judge Rogers felt unable to accede to Mr Roberts's submission that this would be an appropriate case for a suspended sentence despite the exceptional circumstances. On 23 January 2009, therefore, he sentenced the appellant to one year's imprisonment. Mr Roberts frankly concedes that his mitigation did not fall on deaf ears. His Honour Judge Rogers plainly bore very much in mind that this was an isolated assault resulting from a sudden loss of temper. The judge accepted that the offence was out of character and totally different from other cases that sadly appear before the courts of prolonged violence against a small child. The judge also noted the efforts that the appellant had made to rebuild his life since his release from prison. He was highly regarded in the community and he has always expressed his contrition. 12 The judge, having noted all of those facts, also considered the length of sentence that would have been appropriate had Shauna died back in 2000 when the injuries were inflicted. He came to the conclusion that on the available authorities the appropriate bracket for the offence of manslaughter would have been four to five years. Mr Roberts did not seek to argue that any lesser sentence would be appropriate. Therefore, he conceded that if a sentence of four to five years would have been appropriate then there was a discrepancy of one to two years between the sentence actually served and the sentence that should have been served. Therefore, Mr Roberts does not argue that the sentence of one year was in any way excessive. However, he did argue that the judge was wrong in principle not to suspend that sentence. 13 Although we are told the appellant is soon to be released, he sought to argue that the unusual circumstances here did justify a suspension. He argued that by passing an immediate custodial sentence the judge must have failed to give sufficient weight to the fact that this was a second sentencing exercise, more than six years after the appellant's release from prison for the same criminal act committed by him. During that time, the appellant has worked hard and lived, for the most part, a nearly blameless life. Accordingly Mr Roberts argued there was no proper purpose to be served by returning the appellant to prison in these circumstances. 14 We disagree. There was a purpose. The purpose was to mark the death of Shauna and to punish the appellant not only for destroying her quality of life, for causing her years of pain and misery, but for killing her. The flaw in Mr Roberts's argument, as it seems to us, is that he accepted that a total immediate sentence of four years for manslaughter had it been imposed back in 2001 could not be described as in any way excessive; some may argue it would not be long enough. The question, therefore, is whether the appellant's excellent behaviour in the period between the two convictions means the judge was obliged to suspend a perfectly proper sentence. 15 He was not. There is nothing wrong in principle with an immediate custodial sentence. The appellant was warned that this might happen at his original sentencing hearing. He did not get on with his life in the belief that prison was behind him. He always knew that if Shauna should die of the appalling injuries that he had inflicted he might be called upon to serve the rest of the deserved punishment. That is what has happened. Accordingly, although in our view the appeal was properly put before us, we must dismiss it.
{"ConvCourtName": ["Mold Crown Court"], "ConvictPleaDate": ["19 December 2008"], "ConvictOffence": ["section 20 offence of inflicting grievous bodily harm"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["at the earliest opportunity"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Mold Crown Court"], "Sentence": ["three years' imprisonment."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["data not available"], "OffAgeOffence": ["aged 26"], "OffJobOffence": ["self-employed"], "OffHomeOffence": ["an address in Porthmadog"], "OffMentalOffence": ["alcohol problem and essentially turned his life around"], "OffIntoxOffence": ["misusing alcohol"], "OffVicRelation": ["began a relationship with the mother of Shauna Griffiths"], "VictimType": ["Shauna Griffiths."], "VicNum": ["Shauna Griffiths"], "VicSex": ["her"], "VicAgeOffence": ["born on 15 November 1999"], "VicJobOffence": ["born on 15 November 1999"], "VicHomeOffence": ["an address in Porthmadog"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["paramedics", "post-mortem"], "DefEvidTypeTrial": ["He denied assaulting the child"], "PreSentReport": ["low risk of reconviction"], "AggFactSent": ["maintained his false account", "prolonged violence against a small child"], "MitFactSent": ["highly regarded in the community", "rebuild his life since his release", "offence was out of character"], "VicImpactStatement": ["victim impact statement"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["sentence"], "AppealGround": ["the judge must have failed to give sufficient weight to the fact that this was a second sentencing exercise"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["dismiss it."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["nothing wrong in principle with an immediate custodial sentence"]}
{"ConvCourtName": ["Mold Crown Court"], "ConvictPleaDate": ["2008-12-19"], "ConvictOffence": ["section 20 offence of inflicting grievous bodily harm"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["at the earliest opportunity"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Mold Crown Court"], "Sentence": ["three years' imprisonment."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["data not available"], "OffAgeOffence": ["26"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Had mental health problems"], "OffIntoxOffence": ["Yes-drinking"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Female"], "VicAgeOffence": ["1"], "VicJobOffence": ["Child"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["post-mortem", "Medical"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Low risk of reoffending"], "AggFactSent": ["prolonged violence against a small child", "maintained his false account"], "MitFactSent": ["highly regarded in the community", "rebuild his life since his release", "offence was out of character"], "VicImpactStatement": ["Yes"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["sentence"], "AppealGround": ["the judge must have failed to give sufficient weight to the fact that this was a second sentencing exercise"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["nothing wrong in principle with an immediate custodial sentence"]}
403
Neutral Citation Number: [2012] EWCA Crim 1336 Case No. 2012/02973/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 1 June 2012 B e f o r e: LADY JUSTICE HALLETT MR JUSTICE CALVERT SMITH and MR JUSTICE MADDISON __________________ R E G I N A - v - L __________________ 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 B Carville appeared on behalf of the Applicant ____________________ Judgment LADY JUSTICE HALLETT: I shall ask Mr Justice Calvert-Smith to give the judgment of the court. MR JUSTICE CALVERT-SMITH: 1. On 6 March 2012 at Liverpool Crown Court the applicant pleaded guilty to three offences of robbery and one of attempted robbery. On 30 April 2012 he was sentenced by His Honour Judge Warnock as follows: on counts 1, 2 and 3 (robbery), a ten month Detention and Training Order on each count concurrent. No separate penalty was imposed for the attempted robbery. The total sentence was a ten month Detention and Training Order. The application for leave to appeal against sentence has been referred to the full court by the Registrar. We grant leave. 2. There were two co-accused who pleaded guilty at the same time as the appellant, one of whom, W, pleaded guilty to a further offence committed on a different occasion. The two co-accused, who had pleaded guilty to the further offence as well as those on this indictment, were sentenced to Detention and Training Orders of 24 months and 16 months respectively 3. The facts of the offences were that at about 5.45pm on Saturday 8 October 2011 a group of five boys, aged 14 or 15, were on their way to a concert in the O2 Arena in Liverpool. One of them saw the appellant and the two co-accused walking behind them and he became nervous when he saw them pull their hoods over their heads to cover their faces. The group continued and tried not to look at the three youths following them. The robberies began, as they so often do, with one of the co-accused shouting to ask whether they had the time. This caused the five boys to turn and face the three co-accused. W demanded their mobile phones. When the victim in count 1 said that he did not have one, W hit him in his face with his elbow and took his iPhone from his pocket. The victim in count 2 was worried that he would be assaulted and, understandably, handed over his Blackberry phone; likewise, the victim in count 3. W produced a screwdriver from the sleeve of his jacket, pointed it at victim number 4 (the victim of the attempt) and asked for his phone. Victim number 4 refused. The appellant and his two co-accused ran off. 4. The police arrived very quickly and the three co-accused were stopped nearby. W was in possession of two of the telephones. He confessed that he had just taken them off a group of lads. Nothing was found on the other two co-accused. The third phone turned up in the back of the police vehicle. According to the police it could not have come from W. 5. The appellant's plea of guilty was tendered on the basis that he had aided and abetted the other two by his presence, rather than his having taken any active part in the robbery, either verbally or physically. 6. The appellant is still only 14 years old as he was at the time of the offences. He has never been in trouble before, although he has two reprimands, first for the theft of a bicycle in June 2011 and the second for the possession of an imitation firearm in public on 27 July 2011. That second reprimand was the subject of questions from the sentencing judge. Prosecution counsel on that occasion was unable to inform the court how that offence had been discovered and in what circumstances it had been committed. Mr Carville, who represents the appellant today has not been able to assist us either. 7. The pre-sentence report describes the appellant's genuine remorse and reiterates the appellant's case that he had not taken part directly in the robbery, but that he was guilty because he had effectively supported his co-defendants by his presence and that his behaviour had been unacceptable. 8. His behaviour generally, witness the two reprimands, had deteriorated after the separation of his parents. He had come to terms with that separation and now had daily contact with his father. The author of the report believed that the appellant had been influenced by more entrenched offenders. It is right to say that both the other two offenders had worse records than he did. It was assessed that there was a low risk of reconviction and a low risk of harm to the public. He was frightened at the idea of being away from his family and presented as a vulnerable young man. The author suggested that although a Detention and Training Order would be commensurate with the seriousness of the offence, there was some concern about his vulnerability and level of maturity. The court was therefore asked to consider a twelve month Youth Rehabilitation Order. 9. When the matter came before the court it was assumed by all parties that a sentence of detention and training was open to the court. However, such a sentence may only be passed on an offender aged 14 if he can be described as a "persistent offender". Offenders aged 14 and below who have been made the subject of Detention and Training Orders have been before this court on a number of occasions. There are a number of decisions in which the question of what may or may not amount to a "persistent offender" have been discussed. In R v G(TT) [2004] EWCA Crim 3086 the appellant had pleaded guilty to a number of offences -- two of possessing a prohibited firearm, two of possessing ammunition without a certificate and one of possession of a Class C (as it then was) drug, cannabis, with intent to supply. The appellant was aged 14 and a sentence of detention and training was imposed. The appeal was brought on the basis that the qualification required for "persistent offender" had not been met. In giving the judgment of the court McCombe J said this: "10. Thus, before a sentence of the type passed by the judge could properly be so passed, the court had to be satisfied that the offender was properly regarded as a persistent offender. Not surprisingly, this issue has been addressed in previous cases. It has been held, for example, that formal cautions can be considered along with convictions in deciding whether or not an offender is persistent in his offending: see D [2002] 1 Cr App R(S) 59 . Indeed, it is not necessary that there should be previous convictions or cautions at all. The provisions can apply in the case of a previously unconvicted offender who embarks on a brief, but nevertheless persistent, spree of offending: Smith [2001] 1 Cr App R(S) 62. However, as has been indicated in those cases, and one to which we will refer in a moment, the term 'persistent offender' is an ordinary term of the English language and falls to be applied in its clearly understood meaning. In addition to the cases already mentioned, we refer to D (CA 23 October 2000, unreported), a decision of the constitution of this court presided over by Mantell LJ, in which David Clarke J (then the Recorder of Liverpool) gave the judgment. .... The appellant in that case had one caution and one conviction for handling stolen goods. In giving the judgment of the court David Clarke J said: '13. The question for this court, therefore, is whether this appellant falls on the same side of the line as in the previous cases. At the age of just 14 he had one caution and one conviction for handling stolen goods. The present offence of affray was of a quite different character and the first offence of that type -- different also from the further offence concerning a motor cycle which he had gone on to commit whilst on bail. In the judgment of this court, whilst the term "persistent offender" is a wide one, allowing for some latitude of interpretation of the facts of particular cases, the learned judge stretched the language too far on this occasions and thus the foundation has not, in our judgment, been laid for the imposition of a Detention and Training Order.' In our view, having given careful consideration to this matter, this case falls on the same side of the line as did the facts in D to which we have just referred. The instant offences were indeed very serious and ones for which a custodial sentence would instantly be expected to be passed, even in a case of a young offender. However, in our view this appellant did not satisfy the statutory criterion, namely that of being a persistent offender." The court came to the conclusion in that case that the order had to be quashed. 10. The offences in the instant case are very serious, just as were the offences in the case to which we have just referred. They would normally attract a custodial sentence. The alternative, if custody was being considered, would have been a sentence under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. That possibility was considered by His Honour Judge Warnock in connection with the principal offender, W, as to whom he said: "[W], you were deeply involved in the first street robbery where a screwdriver was brandished. Shortly thereafter you were involved in another street robbery when you brandished a rusty knife. I have thought long and hard whether to invoke section 91 in this case, but I have eventually come to the conclusion that your pleas and age just preclude such a course. You should understand that the sentence I am going to pass fully takes into account any mitigation that has been available to you." The robbery with a rusty knife to which the judge referred was a robbery committed on another occasion. As we have already said, W pleaded guilty to another robbery on a different date to the three robberies and the one attempt to which the appellant had pleaded guilty. Accordingly, the judge was right not to have considered section 91 in the case of the appellant. 11. Having considered the authorities, we have come to the same conclusion as the court in G(TT ) and D , that the two reprimands and the three robberies committed on a single occasion within a minute or so of each other cannot be characterised for the reasons given in the earlier judgments as "persistent offending". The two previous offences are quite different, albeit we know very little about the facts of the possession of the imitation firearm. 12. Accordingly, the court is minded to quash the ten month Detention and Training Order and to impose a different sentence. There is an extremely encouraging report from Red Bank Community Home. where the appellant has been detained now for just over one month, which suggests that he is making excellent progress. In some ways it is a shame that that progress cannot be continued within its confines because should he have stayed there he would have emerged a better person for it. However, because of our finding that the sentence should not have been passed, it will have to be quashed. 13. The pre-sentence report recommended a twelve month Youth Rehabilitation Order with three requirements: first, a twelve month supervision requirement; second, a 91 day Extended Activity Requirement of high intensity; and third, a three month curfew requirement to be electronically monitored from 7pm to 7am. 14. By section 1 of the Criminal Justice and Immigration Act 2009 a Youth Rehabilitation Order with intensive supervision and surveillance may only be made if in dealing with a person under 15 "at the time of conviction the court is of the opinion that the offender is a persistent offender". Accordingly, that requirement too is prohibited by the fact, as we have found, that the appellant is not a persistent offender. 15. We are extremely grateful to Mr Gardner for making enquiries. He has informed us that within a supervision requirement a significant number of the activities which would form part of the extended activity requirement would be part of that supervision. Accordingly, and having ascertained from Mr Carville that, should the appeal be allowed, the appellant, who has been spoken to in the very recent past, was content for the conditions as then suggested to be imposed, and will undoubtedly extend that consent to an order that is slightly less rigorous than that that was proposed, we feel able to quash the Detention and Training Order and to replace it with a twelve month Youth Rehabilitation Order with the requirements of twelve month supervision and a three month curfew to be electronically monitored from 7pm to 7am. We have in mind that the appellant has already spent one month in custody as a result of the original sentence. To that extent the appeal is allowed. _________________________________
{"ConvCourtName": ["Liverpool Crown Court"], "ConvictPleaDate": ["6 March 2012"], "ConvictOffence": ["robbery", "attempted robbery"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Liverpool Crown Court"], "Sentence": ["ten month Detention and Training Order on each count"], "SentServe": ["concurrent"], "WhatAncillary": ["Detention and Training Order"], "OffSex": ["data not available"], "OffAgeOffence": ["14"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["three youths following them"], "VictimType": ["group of five boys"], "VicNum": ["Victim number 4"], "VicSex": ["boys"], "VicAgeOffence": ["14 or 15"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["stopped nearby."], "DefEvidTypeTrial": ["he had aided and abetted the other two by his presence, rather than his having taken any active part"], "PreSentReport": ["low risk of harm", "low risk of reconviction"], "AggFactSent": ["two reprimands"], "MitFactSent": ["remorse", "vulnerable"], "VicImpactStatement": ["data not available"], "Appellant": ["applicant"], "CoDefAccNum": ["two co-accused"], "AppealAgainst": ["against sentence"], "AppealGround": ["appeal was brought on the basis that the qualification required for \"persistent offender\" had not been met."], "SentGuideWhich": ["section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.", "section 1 of the Criminal Justice and Immigration Act 2009"], "AppealOutcome": ["quash the Detention and Training Order and to replace it with a twelve month Youth Rehabilitation Order with the requirements of twelve month supervision and a three month curfew"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["because of our finding that the sentence should not have been passed, it will have to be quashed."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["Liverpool Crown Court"], "ConvictPleaDate": ["2012-03-06"], "ConvictOffence": ["attempted robbery", "robbery"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Liverpool Crown Court"], "Sentence": ["ten month Detention and Training Order on each count"], "SentServe": ["Concurrent"], "WhatAncillary": ["Detention and Training Order"], "OffSex": ["data not available"], "OffAgeOffence": ["14"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Stranger"], "VictimType": ["Individuals"], "VicNum": ["4"], "VicSex": ["All Male"], "VicAgeOffence": ["14-15"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Police evidence"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Low risk of harm", "Low risk of reoffending"], "AggFactSent": ["two reprimands"], "MitFactSent": ["vulnerable", "remorse"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["2"], "AppealAgainst": ["against sentence"], "AppealGround": ["appeal was brought on the basis that the qualification required for \"persistent offender\" had not been met."], "SentGuideWhich": ["section 1 of the Criminal Justice and Immigration Act 2009", "section 91 of the Powers of Criminal Courts (Sentencing) Act 2000."], "AppealOutcome": ["Allowed&Sentence Replaced by More Excessive Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["because of our finding that the sentence should not have been passed, it will have to be quashed."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
97
Neutral Citation Number: [2020] EWCA Crim 820 Case No: 201901681C1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WORCESTER HIS HONOUR JUDGE TINDAL T20177270 Royal Courts of Justice Strand, London, WC2A 2LL Date: 30 June 2020 Before : THE RT. HON. THE LORD BURNETT OF MALDON, LORD CHIEF JUSTICE OF ENGLAND AND WALES THE HON. MR JUSTICE SWEENEY and THE HON. MR JUSTICE MURRAY - - - - - - - - - - - - - - - - - - - - - Between : ALEX HEPBURN Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - D Emanuel QC (instructed by Draycott Browne Solicitors ) for the Appellant M Moore QC and S Morris (instructed by Crown Prosecution Service ) for the Respondent Hearing date: 4 June 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment The Lord Chief Justice : 1. Alex Hepburn appeals against his conviction of rape by leave of the single judge. He was convicted at the Crown Court at Worcester on 12 April 2019 on a count of oral rape but acquitted of vaginal rape. Both counts arose in connection with a continuous incident which occurred in the early hours of the morning of 1 April 2017. On 30 April 2019 he was sentenced to five years’ imprisonment. The complainant has lifelong anonymity and the protections accorded by the Sexual Offences (Amendment Act) 1992. 2. Mr Emanuel QC, who did not appear below, advances two grounds in support of the appeal against conviction: i) The judge was wrong to admit a series of WhatsApp messages between the appellant and a number of his friends explaining a game they were playing (which had started that night) to have sex with as many women as possible before September and demonstrating their attitudes to women. Mr Emanuel submits that they were irrelevant and, even if wrong on that, should have been excluded as deeply prejudicial. He submits that the cross-examination of prosecuting counsel on the messages was unfair and, furthermore, that the judge’s directions to the jury did not adequately warn against judging the appellant’s morals and attitude to women. In consequence the conviction is unsafe. ii) The verdicts of the jury were inconsistent, given that the only issue in respect of both counts was consent, with the consequence that the conviction in respect of the oral rape is unsafe. 3. The appellant and Joe Clarke were then both professional cricketers who played for Worcestershire County Cricket Club. They shared a flat in Worcester. On 31 March 2017 they had been out with a group including the complainant. She had an on-off relationship with Mr Clarke. It was a night of heavy drinking and clubbing. The complainant and Mr Clarke went back to the flat before 03.00. They went to his bed and had oral and vaginal sex before falling asleep. Mr Clarke woke up and felt sick. He went to the bathroom, vomited and ended up asleep on the floor there. 4. The appellant arrived home after Mr Clarke had decamped to the bathroom. There had been an arrangement that he and Mr Clarke would share his bed – at that time only a mattress on the floor – because other friends were due back to the flat and would use the appellant’s bedroom and, if necessary, the lounge. None was present at the time of the incident and it was common ground that, because they did not have a key, if others had turned up either Mr Clarke or the appellant would have let them in. It was agreed that if either brought a girl home, the arrangements would have to be adjusted. The appellant went into Mr Clarke’s bedroom. He got undressed. His account was that he did not realise that Mr Clarke had brought the complainant back to the flat and only became aware of her when he laid down on the mattress. 5. There was a stark conflict between the accounts given by the appellant and the complainant. She said that she woke up to find the appellant’s erect penis in her mouth. She was groggy and thought it was Mr Clarke “being a bit cheeky”. She performed oral sex for about ten minutes. They went on to have vaginal intercourse but only because she thought the man was Mr Clarke. She described herself as still being intoxicated and sleepy with her eyes closed when these events happened. This, combined with the low lighting levels in the bedroom, meant she could not tell she was in fact having sex with the appellant. It was only when the appellant spoke with a distinctive Australian accent that she realised what was going on. She pushed him off and asked what he was doing and “where’s Joe?” The complainant said that she would not have consented to the sexual activity had she known that it was the appellant. After the incident was over she went to the bathroom and woke up Mr Clarke. She told him immediately that she had been raped. 6. The appellant’s account was that after he lay down, he saw a naked woman on the bed. He recognised her. They made eye contact and then she kissed him. He straddled her shoulders and she took hold of his penis and put it in her mouth. She was a fully engaged consenting partner. He had done nothing to mislead the complainant that he was Mr Clarke. The whole episode lasted 20 minutes. He had the impression that the complainant was enjoying herself. Nothing happened that made him think the complainant was not consenting to both the oral and vaginal intercourse. He agreed that the time came when the complainant said, “what are you doing?”, to which he replied, “what do you mean?” before she pushed him off and asked, “where’s Joe?”. 7. The prosecution also relied upon a series of WhatsApp messages to suggest that the appellant was indifferent to whether the complainant was consenting to sex. His motivation was said to be gaining points as part of a sexual conquest game which he, Mr Clarke and another club cricketer had agreed to play. The game had started that Friday night. Members of the team had played it before, and the ‘rules’ and ‘moves’ were recorded in a WhatsApp group chat called “Statchat”. It was essentially a competition to have sex with as many different women as possible before 15 September 2017. 8. In respect of each count the jury had to consider a series of issues before they could convict. First, that the complainant did not consent to the appellant (rather than Mr Clarke) inserting his penis into her mouth and vagina, as the case may be. If she did or may have consented, they would acquit. If satisfied that she did not consent, secondly, that the appellant did not genuinely believe that she consented. If sure that he did not hold that belief, the jury would convict. If he did or may have genuinely believed that the complainant had consented, the third question was whether that belief was reasonable. At this stage, if it was arrived at, a conviction could follow only if the jury was sure that the genuine belief was unreasonable. Ground 1: The WhatsApp Messages 9. The trial in April 2019 was a retrial following the failure of an earlier jury to agree. The question on the admissibility of the WhatsApp messages was determined in advance of the first trial. The prosecution and defence were content to abide by the earlier ruling. There was no attempt on behalf of the appellant to revisit the earlier ruling in the light of how the evidence in respect of the WhatsApp messages had emerged during the first trial. 10. The prosecution sought to introduce WhatsApp messages exchanged both in the days leading up to the incident which gave rise to the charges but also from earlier, going back to January 2017. During argument the judge indicated that he thought the messages immediately preceding 1 April 2017 might merit different treatment, as having ‘to do with the offence’ for the purposes of section 98(a) of the Criminal Justice Act 2003 (“the 2003 Act”), rather than bad character. It was on 27 March 2017 that there had been an exchange of messages setting out the rules of the game which had been written by the appellant. The game was to commence on 31 March which was their ‘first night out’ after Mr Clarke’s return to Worcester. 11. The judge admitted the 17 extracts from 27 March onwards but refused to admit the 39 earlier messages. He distilled the “unusual” key issue in the case as being whether the appellant genuinely and reasonably believed that the complainant consented to having sex with him. For that reason, he considered it “pivotal in this case to examine evidence that relates to Mr Hepburn’s attitudes towards sex and consent…”. He noted, by reference to the message explaining the rules of the game, that leading counsel for the defence had accepted the relevance of its subject matter. The judge indicated that he did not accept the direct relevance of the more historic messages. He rejected the submission that individual messages in the thread which followed should be excluded. All were material to the issue whether the appellant had a “lackadaisical or uncaring attitude on the question of sexual consent”. His primary conclusion was that the messages had “to do with the offence itself as alleged by the prosecution, they [were] part and parcel of the material which the prosecution [said] led [the appellant] to do what he did…”. However, if wrong about this, the evidence could be admitted as bad character, either because (i) it was “important explanatory evidence without which the jury would find it difficult or impossible to understand the behaviour of the defendant” which had to be understood through the lens of the ‘game mentality’; or (ii) it was “relevant to an important matter in issue between the prosecution and defence, namely the attitude of the defendant towards the question of consent…”. He refused to admit the more historic passages because (i) the prosecution had enough material in the later extracts to make the relevant point; and (ii) there were messages in the historic batch that were prejudicial and not related to these facts. 12. In his summing up, the judge explained the relevance of the ‘game’: “... part of the prosecution evidence is that in the four days running up to this evening, Mr Hepburn, Mr Clarke, and their friends were playing a game, in effect to have sex with as many new women as possible. You may or may not feel such a game was sexist, and does not show Mr Hepburn in a good light. However, he is not being prosecuted for sexism, but for rape. These messages are only relevant to your decision insofar as you believe they shed light on Mr Hepburn’s attitude to sex with [the complainant]. The defence say the messages are irrelevant, because even if they show Mr Hepburn engaging in sexual banter, he and [the complainant] knew each other well, and he naturally assumed she knew it was him and consented, and did not realise if it was the case that she mistook him for Mr Clarke, and certainly did not impersonate him. If you agree, you should ignore the messages completely, as they are irrelevant. However, the prosecution say that the messages are relevant because they show that night was the start of the game. Mr Hepburn wanted to collect as many sexual partners as possible, starting that night, and took his chance with [the complainant], knowing she was half-asleep, not bothering to check with her that she consented. If you agree with that, you are entitled to take that into account as giving some support for the prosecution case, but only as part of the evidence. You must make your decision on all the evidence, not wholly or even mainly on the basis of the messages.” 13. The appellant argues that the WhatsApp messages made available to the jury were irrelevant and, in any event, so prejudicial that they should have been excluded even if relevant. 14. We are satisfied that the judge made no error in admitting the WhatsApp messages, starting with the one in which the appellant set out the rules of the game on 27 March 2017. 15. Whilst we doubt that they were admissible under section 98(a) of the 2003 Act, they were plainly so under the combination of sections 101(1)(c) & 102 (as being important explanatory evidence), and also under section 101(1)(d) (as being relevant to an important matter in issue between the parties, namely belief in consent). 16. Mr Emanuel is critical of the judge for failing in his ruling to deal distinctly with the issue of prejudice by reference to section 78 of the Police and Criminal Evidence Act 1984 or the regime for admitting bad character evidence under the 2003 Act (section 101(1)(d) & 101(3)). In our view, that is unfair to the judge. The question of the prejudicial effect of the WhatsApp messages suffused the submissions and discussion before the ruling and underpinned the judge’s conclusion that a large number of messages should be excluded. It is clear that the question was at the forefront of the judge’s consideration when the matter was resolved before the first trial. 17. So too is the criticism of the summing up. Mr Emanuel suggests that this case called for a clearer direction that the jury should set aside any revulsion they might naturally feel about the shocking disdain for women demonstrated by the WhatsApp exchanges. In the course of the application to admit the evidence the judge had made plain his revulsion at what the messages showed about the attitude of these men to women generally, simply sexual playthings with no concern for their feelings. It is always a matter of judgement for a trial judge to determine the extent to which a warning should be given to the jury in respect of any aspect of the evidence which does not amount, in the strict sense, to a legal direction. There is sometimes the danger of stating the obvious or of patronising the jury. Both should be avoided. In this case, as is apparent from the extract of the summing up we have quoted, the judge made clear that the appellant was not being prosecuted for sexism but rape and explained the relevance of the messages. There was no deficiency in the summing up. 18. The appellant contends that cross-examination on the WhatsApp messages not only illuminates the danger in admitting them but undermines the safety of the conviction. Miss Moore QC, whose cross-examination it was, reminds us of the context. The complainant had gone home with Mr Clarke, with whom she had a relationship, and had never evinced any interest in the appellant. He accepted that. She explored why he took the opportunity to have sex with his best friend’s girlfriend. In short, why he would do that to his friend? The cross examination was directed at the appellant’s cavalier attitude to women and sex. She put squarely in the course of crossexamination the overall point: “Q: Isn’t this evening and what happened to [the complainant] a culmination of this unpleasant game, you not pulling that night and coming back and thinking ha, ha, I’ll get one over on Joe with this sleeping girl. I know it’s his girl. And I’m just – I want sex and I’m going to have it? A: No.” Miss Moore submits that questions to which the appellant now takes exception were directed towards his attitude towards consent, for example asking whether he thought he was God’s gift to women. 19. There was one aspect of the cross-examination which provoked an objection from leading counsel for the appellant and with which the judge immediately agreed. It concerned not the details of the messages but an inquiry by counsel of how many women the appellant had slept with the previous year during the currency of the game and whether they were one-night stands or he had relationships with any of them. We agree that these questions would not have assisted the jury in determining the question of guilt or innocence. Promiscuity is not relevant to the issue of consent. That said, neither these questions still less the overall tenor of the cross-examination undermine the conviction. Ground 2: Inconsistent Verdicts 20. The judge gave the jury the usual direction (to which no exception is taken) that the jury could deliver different verdicts on the two counts, not least because it was the prosecution case that the penetration of the complainant’s mouth occurred when she was asleep whilst it was clear that she was awake, at least to some extent, when vaginal penetration occurred. The appellant’s submission that the jury’s decision to convict of oral rape, but acquit on the vaginal rape count, are irreconcilable is largely based upon a note it sent to the judge whilst in retirement. 21. The note read: “Please could we have clarification of question 3 of the route to verdict. Are we looking at AH’s ‘belief in [the complainant’s] consent was unreasonable’ from the perspective of what an ‘ordinary reasonable person would have believed’ (as per the summing up document).” 22. Question 3 of the route to verdict formed part of the series of questions dealing with the oral rape count. Question 1 asked whether the jury was sure that the complainant did not consent. Question 2 continued: “Are you sure that AH did not genuinely believe that [the complainant] consented? • If your answer is ‘Yes’ – i.e. you are sure that he did not genuinely believe that [the complainant] consented – your verdict will be ‘Guilty’ on Count 2 (for example, if she was asleep when he put his penis in her mouth or he believed she thought she was having sex with JC) • If your answer is ‘No’ – i.e. you decide that AH did genuinely believe or may genuinely have believed that [the complainant] consented – go to question 3.” Question 3 asked: “Are you sure that AH’s belief in [the complainant’s] consent was unreasonable? • If you answer to is ‘Yes’ - i.e. you are sure that AH’s belief in [the complainant’s] consent was unreasonable – your verdict will be ‘Guilty’ on Count 2. • If your answer is ‘No’ - i.e. you decide that AH’s belief in [the complainant’s] consent was or may have been reasonable – your verdict will be ‘Not Guilty’ on Count 2.” 23. The jury had the part of the summing up referred to in the question. The judge clarified the summing up by making it clear that if question 3 was in issue the appellant’s belief must be judged by the standards of ordinary, reasonable people. 24. The jury had retired to consider their verdicts at 11.36 on Thursday 11 April. They continued their deliberations the next morning and were given the majority direction at 11.49 before retiring again. The question came at about 14.00. The clarification was given a quarter of an hour later following which the jury retired once more. The jury went back into court at 15.41 and returned a unanimous verdict convicting the appellant on count 2. The jury then retired once more and returned a majority not guilty verdict on count 1 a few minutes later. 25. In view of the note, the judge sentenced the appellant on the basis that the complainant was awake throughout the sexual contact. That was an understandable, if possibly generous view. 26. There is a danger in over-analysis of a jury note with a view to discerning a common view amongst its members, especially in a case concerning consent. Moreover, a note may not illuminate with certainty where in a process of reasoning the jury has reached. A jury may return to matters earlier discussed, not least to assuage lingering concerns in one or more of its members. 27. In this case, it is entirely possible that some, or even all but one, of the members of the jury were sure that the complainant was asleep when the appellant placed his penis in her mouth. As the judge directed the jury, if that were the case questions 2 and 3 would not arise on the facts because no man could genuinely believe that a woman with whom he was barely acquainted and into whose bed he had climbed whilst she was asleep, could be consenting to sex whilst asleep. Others on the jury might not have been sure, in which case the further questions would have arisen for consideration. The verdict demonstrates that each member of the jury was sure that there was no consent for the purposes of the Sexual Offences Act 2003 . At which stage in the analysis each individual member of the jury was sure of a lack of consent remains opaque. 28. Even if one starts from the premise that the complainant was awake at the outset, the jury could be sure she did not appreciate that it was the appellant with whom she was having sex at the beginning, and that he had no genuine and reasonable belief that she was consenting, but that things might have changed the longer the sexual contact went on without any outward demonstration of a lack of consent (accepted by the complainant) it is at least possible that by the time vaginal intercourse started the jury’s conclusion about the appellant’s belief and whether it was reasonable was different. 29. When giving leave to appeal against conviction the single judge expressed scepticism about whether there was anything in this ground. Having concluded that the appellant should be able to argue Ground 1 he did not shut out argument on this ground also. That scepticism was justified. We do not accept that there is any arguable logical inconsistency between the verdicts. In those circumstances it is unnecessary to consider the various authorities of this court that bear on the question of how to approach what, at first blush, appear to be inconsistent verdicts, still less to add to them. Conclusion 30. Neither ground of appeal is established. The conviction is not unsafe. The appeal is dismissed.
{"ConvCourtName": ["Crown Court at Worcester"], "ConvictPleaDate": ["12 April 2019"], "ConvictOffence": ["rape"], "AcquitOffence": ["vaginal rape"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Worcester"], "Sentence": ["five years’ imprisonment."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["data not available"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["professional cricketers"], "OffHomeOffence": ["flat in Worcester."], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["heavy drinking"], "OffVicRelation": ["group including the complainant."], "VictimType": ["She"], "VicNum": ["data not available"], "VicSex": ["She"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["heavy drinking"], "ProsEvidTypeTrial": ["WhatsApp messages"], "DefEvidTypeTrial": ["appellant’s account"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against his conviction"], "AppealGround": ["judge’s directions to the jury did not adequately warn", "The judge was wrong to admit"], "SentGuideWhich": ["Sexual Offences (Amendment Act) 1992."], "AppealOutcome": ["appeal is dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["We do not accept that there is any arguable logical inconsistency"]}
{"ConvCourtName": ["Crown Court At Worcester"], "ConvictPleaDate": ["2019-04-12"], "ConvictOffence": ["rape"], "AcquitOffence": ["vaginal rape"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Worcester"], "Sentence": ["five years’ imprisonment."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["data not available"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Yes-drinking"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["data not available"], "VicSex": ["All Female"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Yes-drinking"], "ProsEvidTypeTrial": ["Digital evidence"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against his conviction"], "AppealGround": ["judge’s directions to the jury did not adequately warn", "[evidence]"], "SentGuideWhich": ["Sexual Offences (Amendment Act) 1992."], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["We do not accept that there is any arguable logical inconsistency"]}
371
Case No: 201000057 A1 Neutral Citation Number: [2010] EWCA Crim 315 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date; Friday, 12th February 2010 B e f o r e : LORD JUSTICE TOULSON MRS JUSTICE COX DBE - - - - - - - - - - - - - - - - - - - - - THE COMMON SERJEANT OF LONDON - HIS HONOUR JUDGE BARKER QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) R E G I N A v B - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr B Gross (Solicitor Advocate) appeared on behalf of the Applicant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE TOULSON: B appeals with the leave of the Single Judge against a sentence of eight months' imprisonment passed on her for the offence of causing her 15 year old daughter to engage in sexual activity involving intercourse over a period of seven and a half months up to her 16th birthday contrary to section 10(1) of the Sexual Offences Act 2003 . She pleaded guilty to the offence on a written basis on 11th November 2009 at Snaresbrook Crown Court before HHJ Lamb QC. He adjourned the case for a social inquiry report and sentenced her on 9th December 2009. It is an unusual case in the sense that the appellant was not acting for sexual gratification. 2. The appellant came to the UK with her husband from Bangladesh in 1984, so she had lived here for more than 20 years prior to the commission of the offence. She is now aged 54. She lived with her family in Bethnal Green. She speaks no English. 3. The victim, V, was born in 1991. V is her oldest of four children. In 2006, the appellant became concerned because V was going out with a boy from her school who was one year older than herself and the appellant feared (wrongly as it happens) that they might be having sexual relations. The appellant did not approve of this and decided to arrange a marriage for V. The ceremony took place in April 2007. The man, K, was in his late 30s. They lived together after the "marriage" at the appellant's home. After a couple of months the man began to abuse her. The relationship came to an end in 2008. 4. The matter came to the attention of the police in June 2009 after V, now aged 17, had begun another relationship and told staff at her school that she thought her mother was planning another marriage for her. 5. The appellant had no previous convictions but in 2006 she was cautioned for assault occasioning actual bodily harm. The victim was V. As a result of this, social services became involved with the family. 6. The appellant did not coerce V into going through a ceremony of marriage with K. V said that she went through that ceremony and lived with him because she trusted her mother. When asked how she felt about the matter herself, she said: "I was okay with it. Pressurised." 7. The appellant's written basis of plea included the following: "1. She loves and wants the best for all her children, including V. 2. She became concerned about her daughter V's behaviour in 2006, when she began seeing a boy. 3. She discussed the situation with male relatives, who suggested she should explore arranging a marriage for V and provided her with contact details for K. 4. After telephone contact over a couple of months, she arranged for K to visit V at her home. She made it plain to both K and V that it was V's decision whether to marry K. V was keen to do so. 5. She consulted with religious leaders who counselled a period of delay but V was keen to proceed to a wedding. 6. She arranged a ceremony in April 2007 during which K and V were 'married' according to custom. ... 13. The defendant was brought up in rural Sylhet and is illiterate (in Sylhet and English). She was herself married at around age 15 to an older man with two children by a deceased wife, and who died soon after." 8. The appellant's account to the probation officer who prepared the social inquiry report about the arrangement of the "marriage" was a little different. She told the probation officer that when she suggested the arranged "marriage" to V, "after being initially resistant to it, she saw her mother's perspective". 9. As to the appellant's sense of wrongdoing, the report stated: "When I questioned whether there was any sense of wrongdoing, specifically, when the wedding occurred, Mrs B did not think that there was; previously stating that she was married at the same age and this is not an unusual thing in Bangladesh - where she is originally from. I highlighted that she must have been aware that they would have had sexual intercourse and that this would be, in the UK, under the age of consent. She told me that she was not aware that it was." 10. When the matter came before the judge for sentence, he expressed scepticism about her ignorance of the law and held a Newton Hearing, during which the appellant gave evidence through an interpreter. In his sentencing remarks the judge rejected the appellant's evidence that she was ignorant about the age of consent and gave his reasons for doing so. He concluded that she had used the "marriage" as a means of controlling V. He said: "I am not here to punish you for arranging the 'marriage' to K. I am not here to condemn the practice of arranged marriages. My task is to sentence you for the unlawful sexual activity which followed and which you knew would follow the ceremony in your home... I accept that you have lived an isolated life in this country. I accept that you have been influenced by this man ... who seems to have come from Bangladesh, suggested the wedding and conducted the ceremony. I accept that you have followed the precedent of your own life. Nonetheless, in my opinion, your offence is so serious that neither a fine alone nor a community sentence can be justified for it. I am therefore going to pass a sentence of imprisonment. This will be the shortest which in my opinion matches the seriousness of your offence and takes into account the mitigating factors in your case and the period you will spend on licence following your release." 11. Mr Gross, in his clear and succinct submissions, has advanced two interlinked points. First, he argues that the appellant acted purely out of love for her daughter and in what she believed to be her best interest. Secondly, her behaviour was natural, given her cultural background. In those circumstances, he submits that the judge was wrong to conclude that the offence required the imposition of a custodial sentence. 12. On the first point, we do not see the appellant's motivation in quite the simple and stark terms that are advanced. The probation officer explored the complex subject of the appellant's motive in her interview and expressed her conclusions in the pre-sentence report in this way: "When explaining why this offence occurred, it is difficult to point to one area of motivation; it is clear that underlying the behaviour that Mrs B presented was the need to have her daughter in a marriage as it is evident that she felt that her daughter's behaviour leading up the offence occurring appeared to be problematic. Mrs B, it could be suggested acted in a manner that was acceptable and in keeping with her own background, however, she failed to consider the best interests of her daughter and, more significantly, in the eyes of the law - the legality of her actions within the UK. Mrs B was motivated by the need to control her daughter and felt that allowing her to get married and, therefore engage in a sexual relationship as would be expected, was the best course of action for her. In failing to consider the consequences of her actions, she allowed a man to marry her daughter who then went on to abuse her and her family in their own home. Mrs B failed to see or acknowledge these concerns until it was too late. I would suggest that the need to 'keep up appearances' and to control her children generally in a traditional and draconian manner has led to these offences occurring. Mrs B did not act with malice in arranging the marriage, but actioned steps with poor insight into their effectiveness and with a degree of ignorance that cannot be excused." That was a balanced appraisal of her motivation by an independent professional and we see no reason to approach that issue differently. 13. As to the second point, that the appellant's behaviour was natural given her cultural background, the judge properly reminded himself that the law in this area is for the protection of children from all cultural backgrounds. Although the appellant did not intend that V should suffer harm, the consequences of her unlawful attempt to control her daughter's life in a quite unacceptable way were seriously harmful for V. In our judgment it is impossible to say the judge's conclusion that an immediate custodial sentence was required was wrong in principle or that the term of the sentence was manifestly excessive. 14. The court was invited to express broader comments about the appropriate sentence for this type of offence because there appears to be no decision of this court in a case of this kind. We decline to do so for two reasons. First, the facts may differ considerably from case to case. Secondly, this is not a guideline case and the prosecution has not been represented. It would therefore be quite inappropriate for us to use this occasion to offer any indication as to what might be the appropriate upper or lower band of sentence in a case of this kind. We are satisfied that the sentence imposed by the judge was not manifestly excessive or wrong in principle. That is all that we are required to decide and this decision should not be treated as deciding anything more than that narrow question. 15. For those reasons, this appeal is dismissed.
{"ConvCourtName": ["Snaresbrook Crown Court"], "ConvictPleaDate": ["11th November 2009"], "ConvictOffence": ["engage in sexual activity involving intercourse"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Snaresbrook Crown Court"], "Sentence": ["eight months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["her"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["lived here for more than 20 years"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["daughter"], "VictimType": ["15 year old daughter"], "VicNum": ["15 year old daughter"], "VicSex": ["data not available"], "VicAgeOffence": ["15 year old"], "VicJobOffence": ["15 year old daughter"], "VicHomeOffence": ["lived here for more than 20 years"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["V said that she went through that ceremony"], "DefEvidTypeTrial": ["appellant acted purely out of love"], "PreSentReport": ["data not available"], "AggFactSent": ["seriously harmful for V."], "MitFactSent": ["appellant did not intend"], "VicImpactStatement": ["data not available"], "Appellant": ["Applicant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against a sentence"], "AppealGround": ["judge was wrong to conclude that the offence required the imposition of a custodial", "wrong in principle"], "SentGuideWhich": ["section 10(1) of the Sexual Offences Act 2003."], "AppealOutcome": ["appeal is dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["judge was not manifestly excessive or wrong in principle."]}
{"ConvCourtName": ["Snaresbrook Crown Court"], "ConvictPleaDate": ["2009-11-11"], "ConvictOffence": ["engage in sexual activity involving intercourse"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Snaresbrook Crown Court"], "Sentence": ["eight months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Female"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Relative"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["data not available"], "VicAgeOffence": ["15"], "VicJobOffence": ["Child"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Victim testimony"], "DefEvidTypeTrial": ["Offender reasons actions"], "PreSentReport": ["Don't know"], "AggFactSent": ["seriously harmful for V."], "MitFactSent": ["appellant did not intend"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Sentence (is unduly excessive)"], "AppealGround": ["wrong in principle", "judge was wrong to conclude that the offence required the imposition of a custodial"], "SentGuideWhich": ["section 10(1) of the Sexual Offences Act 2003."], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["judge was not manifestly excessive or wrong in principle."]}
324
Case No: 200603013/C3 Neutral Citation Number: [2006] EWCA Crim 3222 IN THE COURT OF APPEAL CRIMINAL DIVISION SITTING AT BIRMINGHAM CROWN COURT QUEEN ELIZABETH II LAW COURT 1 Newton Street Brimingham B4 7NA Date: WEDNESDAY, 29th November 2006 B E F O R E: SIR IGOR JUDGE (PRESIDENT OF THE QUEEN'S BENCH DIVISION) MR JUSTICE FORBES MR JUSTICE TREACY - - - - - - - R E G I N A -v- ALEX AKA PAUL O'LEARY AKA DWYER - - - - - - - Computer Aided Transcript of the Stenograph Notes of A Merrill Communications Company Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS S WASS QC & MISS K WILKINSON appeared on behalf of the APPELLANT MISS E MARSH QC appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. SIR IGOR JUDGE: This is an appeal against conviction by Alex O'Leary otherwise known as Paul Anthony Dwyer, who on 22nd July 2002 in the Crown Court at Norwich, before His Honour Judge Mellor and a jury, was convicted of murder. 2. The single ground of appeal in this case is that there is fresh evidence which undermines the credibility and the accuracy of the main prosecution expert pathologist witness, Dr Michael Heath, so as to leave a conviction based upon his evidence unsafe. 3. The Single Judge giving leave to appeal observed: "The crucial issue in this case was self-defence. The expert interpretation by forensic pathologists was very important in relation to that issue, particularly since the division between the experts was about interpretation, not fact... Given the history here, it is appropriate to grant leave." 4. The Crown's position is found in one short passage from the written skeleton argument, which reads: "In the circumstances that is after and a detailed analysis, the appellant has sound arguable grounds which are difficult to refute, the Crown would seek, if the conviction were quashed an order for retrial, and if the conviction were quashed, then the appellant accepts that would be an appropriate order." We have concluded that this conviction is unsafe and we shall make such an order. 5. It is therefore necessary to summarise the facts very briefly. The deceased was a man called Peter Brown. He was killed late on 25th October 2001, at an address in Ipswich where the appellant had frequently stayed with his girlfriend, a woman called Tara Smith. 6. The cause of death was multiple stab wounds. There were over 20 stab, slash or puncture wounds. There were no less then five such wounds to the neck, three of which would have been fatal and one of which entered the jugular vein, and damaged it and caused an air embolism to the heart. 7. It was not in dispute that the fatal blows were inflicted by the appellant. He admitted that he had stabbed the deceased with a bowie knife and that the death of the deceased was consequential on the blows administered by the appellant. 8. His case was that he had acted in self-defence. The deceased had come to the flat in order to sell drugs and to settle a debt and gradually an argument had developed between them. His case was that it was the deceased who had produced the knife first and, afraid for his life, he had grabbed hold of the knife with his left hand. The two of them had struggled. At one point the deceased was lying on top of him. By now he had wrestled the knife away from the deceased and in the course of the struggle, acting in self-defence, the deceased had been stabbed and sustained the wounds to which we have already referred. 9. Understandably, in the light of all the evidence, the Crown did not accept that the appellant was acting in self-defence and relied and still relies on the evidence of his behaviour, both before and after the event, as providing the basis on which to refute self-defence. However, there was no independent evidence about the circumstances in which the fight had started or indeed any independent evidence about who had first produced the knife. 10. The difficulty with this conviction arises from the evidence of Dr Heath, the pathologist called by the Crown. Putting the matter as neutrally as we can for the moment, his standing as an expert witness at any rate in relatively recent cases has been called into question (see the decision of this Court in Puaca ; see also the findings of the Home Office Policy Advisory Board whose adverse findings against him were followed by Dr Heath's resignation in the autumn of this year from the Home Office Register of Pathologists). 11. We want to make as clear as we can in the course of this judgment that it does not necessarily follow from these criticisms that every case resulting in a conviction in which Dr Heath has given evidence for the Crown should or will be treated as unsafe. We expect the Crown to do what the Crown has done here, which is to analyse the precise nature and importance of Dr Heath's evidence to the conviction, in the light of the particular circumstances of the individual case and the issues which arose at trial. 12. Even if Dr Heath's evidence was challenged at trial, it does not follow that the convictions will all be unsafe. Some will remain safe, even if his evidence lent support to the Crown's case. Some, of course, and this is one, will not. 13. The issue, here, was self-defence. Pausing, one may wonder why expert evidence was needed at all by either side, but that is a separate question. The expert evidence was put before the jury for its consideration. 14. There were three aspects in which there was a conflict between Dr Heath and Dr Carey, a distinguished pathologist called by the defence, and we summarise them in three questions: (i) was the fatal blow struck during the fight, or after the deceased was so fatally wounded that he could fight no longer? (ii) was the force required to inflict injuries sustained by the deceased moderate force or severe force? (iii) were the wounds found on the defendant's hands defensive wounds or not? 15. As to first two questions, we doubt whether, taken on their own or together, the differences of expert opinion were of substantial significance to the decision to be made by the jury. We are not making a definitive ruling on the point. We have not invited argument on it and we have not heard any because we did not invite it. But we simply observe that even if the jury had accepted Dr Carey's evidence on those two questions in its entirety, in reality that evidence appears to us at the moment, without having heard argument, to add little weight to the defence. 16. The third question, however, did have some serious importance, because in essence Dr Heath simply refuted the suggestion that the wounds on the appellant's hands were or could be wounds which were sustained when he was wresting the knife from the deceased. The judge, in his summing-up, dealt with the issue of the injuries to the appellant's left hand and his account that he faced the knife coming to him from a right-handed man and grabbed the blade with his left and managed to take it off the deceased, who was described as "the stronger man". He said: "The left hand is something that Dr Heath dealt with. He said that the inline palm injuries were compatible with being defence injuries. His view looking at the whole hand, and the angle to see the other cuts was that he could not see how these could ever have been defence injuries." That is a very clear, the defence would say, dogmatic piece of evidence of expert opinion evidence. The judge then returned to Dr Carey: "Dr Carey described the hand injury as compatible with the grabbing of something like the bowie knife, did not make any direct reference, specific reference to the other cuts. But Dr Badcock (whose evidence was read to the jury) had himself said 'in particular the cut to the left palm, together with the other superficial scratches are compatible with the left hand taking hold of a sharp blade.'" So there was the issue, clear and direct. 17. In our judgment, Dr Heath's disputed evidence on this topic could reasonably be said to have been an important feature of the Crown's case in seeking to disprove self-defence. In those circumstances, we conclude that the conviction was unsafe. It will therefore be quashed. We shall order a retrial. The Crown has asked for a six-week period in which to examine its position -- I hope that is putting it reasonably neutrally. We shall certainly allow that, but we shall direct that the appellant should be rearraigned on a fresh indictment with 2 months of today's date. 18. The single count which has been quashed is the offence of murder. It is that offence which will be retried on a fresh indictment. 19. There will be a representation order for the appellant for the retrial. We think that the order should cover leading and junior counsel and solicitors. As to custody or bail, we need to hear submissions. 20. MISS WASS: No application, thank you. 21. SIR IGOR JUDGE: The appellant will be remanded in custody pending the retrial. The venue will be decided by the presiding judge on the southeastern circuit. As to where it should take place, that I think must depend on the convenience of the witnesses who may or may not be available. 22. FOR THE CROWN: They are all available and the convenience for the witnesses is Ipswich. 23. SIR IGOR JUDGE: Is that any problem for you? 24. MISS WASS: No. 25. SIR IGOR JUDGE: We shall suggest, though we are not making the order; as we have said, it is for the presiding judge, that on the information we have Ipswich Crown Court would be the appropriate venue. It is of course important there should be a judge there who is authorised to try murder cases because this case should now take place as soon as practicable. It may be necessary for the presiding judge to say Norwich rather than Ipswich, if there is an available murder authorised judge at Norwich rather than at Ipswich. 26. Very well, stand up. I hope you have understood. Your conviction has been quashed for the reasons we have given. There will be a retrial of these issues. In the meanwhile you will be remanded in custody. Thank you very much.
{"ConvCourtName": ["Crown Court at Norwich"], "ConvictPleaDate": ["22nd July 2002"], "ConvictOffence": ["murder"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["remanded in custody pending the retrial."], "RemandCustodyTime": ["data not available"], "SentCourtName": ["data not available"], "Sentence": ["data not available"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["his"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["sell drugs and to settle a debt"], "VictimType": ["man called Peter Brown"], "VicNum": ["man called Peter Brown."], "VicSex": ["man called Peter Brown"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["flat"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["expert pathologist witness"], "DefEvidTypeTrial": ["he had acted in self-defence."], "PreSentReport": ["data not available"], "AggFactSent": ["knife", "multiple stab wounds"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against conviction"], "AppealGround": ["ground of appeal in this case is that there is fresh evidence"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["therefore be quashed. We shall order a retrial."], "ReasonQuashConv": ["disputed evidence on this topic could reasonably be said to have been an important feature"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["Crown Court At Norwich"], "ConvictPleaDate": ["2002-07-22"], "ConvictOffence": ["murder"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["Don't know"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["data not available"], "Sentence": ["Don't know"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Expert evidence"], "DefEvidTypeTrial": ["Self-defence or Justified Action"], "PreSentReport": ["Don't know"], "AggFactSent": ["Weapon /armed", "Sustained/prolonged"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against conviction"], "AppealGround": ["ground of appeal in this case is that there is fresh evidence"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["therefore be quashed. We shall order a retrial."], "ReasonQuashConv": ["Admissibility of evidence"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
279
No: 2007/1612/A1 Neutral Citation Number: [2007] EWCA Crim 1389 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Thursday, 17 May 2007 B E F O R E: LORD JUSTICE LAWS MR JUSTICE KEITH HIS HONOUR JUDGE LORAINE-SMITH (Sitting as a Judge of the CACD) - - - - - - - R E G I N A -v- ROBERT CHALCRAFT - - - - - - - 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 DAHLSEN appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T 1. JUDGE LORAINE-SMITH: On 23rd February 2007 at the Crown Court at Guildford before His Honour Judge Addison, after a three day trial, this appellant was convicted of dangerous driving and was sentenced to three months' imprisonment. He was disqualified from driving for four years and ordered thereafter to take an extended retest. We understand that he has now served that custodial sentence. He appeals with leave of the single judge, that appeal having been limited to the period of disqualification. 2. The facts were as follows. At about 3.45 pm on 25th January 2005, the appellant was driving his firm's white van on the M25 between junctions 13 and 14 when he became involved in a road rage incident with an unknown driver of a blue car. Over a distance of between five and seven miles both drivers were seen lane hopping, tailgating each other's vehicles and undertaking each other. The incident ended with the appellant stopping his van in the fast lane of the motorway in the front of the other car, causing it to brake very sharply. The traffic behind them built up and two vehicles which were in the next lane were involved in a minor collision. Other motorists blocked the appellant's van in, preventing him leaving the scene, but the driver of the blue car was able to manoeuvre his car and drive off and he was never identified. 3. The appellant was clearly very angry about the conduct of the driver of that car. He was subsequently arrested. When interviewed he did not accept that his driving had been dangerous and said he had cut in front of the blue car and brought him to a halt because he wanted to ask him what his game was. That was the account which was put forward at trial and rejected by the jury. 4. When sentencing, the judge said this: "This was a bad case of road rage and a deliberate piece of very bad driving. You showed no remorse at the time and you have shown none since. You contested the case, saying that you stopped in front of the other car, in effect, as a good citizen to get him off the road. Well, I don't accept that. I am quite satisfied that you stopped in temper, intending to have it out with him." The judge said that it was unnecessary in the circumstances to obtain a pre-sentence report because he would not be assisted by it. He imposed an immediate custodial sentence of three months and disqualified the appellant for four years, which is the subject of this appeal. 5. The appellant is now 41. He has previous convictions which occurred during the 1980s and include taking a conveyance without authority for which he was fined and two offences of driving whilst disqualified for which he was sentenced to a community service order of 200 hours and imprisonment for three months. There have been no offences recorded since 1987. 6. At the time of this offence he was working for a pest control company. That employment required his ability to drive. We are told today that he has lost that employment, no doubt as a result of this conviction. He and his wife live in an area to which public transport is very limited. The nearest public transport we are told is three miles away and their home is 16 miles from the nearest large town. His wife works, we are told, although does not earn a great deal and we learn from the written grounds of appeal that she suffers from Crohn's disease and requires regular hospital visits. 7. We have in the course of this appeal had our attention drawn to the case of Chivers . This was an appeal at this court on 17th August 2005 before David Clarke J. In that case the judgment reads as follows: "This is a man whose living is based upon his driving. He works on the docks in relation to the importation of cars. He has to drive to carry on that job. There is an important principle in respect of the imposition of periods of disqualification that they should not, except in exceptionally severe cases, be so long as to impair prospects of rehabilitation, with the impact that that can have on the family of the offender as well as on him. It does seem to us that the period of disqualification which was imposed here was substantially too high." That period was a disqualification from driving for five years following what everybody agreed was a very bad period of driving for which he was sentenced to 12 months' imprisonment. 8. This present appeal featured a bad case of dangerous driving which fully deserved the custodial sentence that the judge passed. However, there was no suggestion that this was anything other than a one-off offence and the judge gave no reasons for imposing the period of disqualification that he did. We think that the period of four years was excessive and in the light of what we have been told by Mr Dahlsen today, we think that the appropriate period would be one of 18 months and we allow the appeal to that extent. He may not drive until he has passed an extended driving test.
{"ConvCourtName": ["Crown Court at Guildford"], "ConvictPleaDate": ["23rd February 2007"], "ConvictOffence": ["dangerous driving"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Guildford"], "Sentence": ["three months' imprisonment", "disqualified from driving"], "SentServe": ["data not available"], "WhatAncillary": ["disqualified from driving"], "OffSex": ["He"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["working for a pest control company"], "OffHomeOffence": ["their home"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["drivers were seen"], "DefEvidTypeTrial": ["he did not accept that his driving had been dangerous"], "PreSentReport": ["data not available"], "AggFactSent": ["bad case of dangerous", "previous convictions"], "MitFactSent": ["has lost that employment"], "VicImpactStatement": ["data not available"], "Appellant": ["appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["period of disqualification."], "AppealGround": ["four years was excessive"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["allow the appeal to that extent"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["period of four years was excessive"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["Crown Court At Guildford"], "ConvictPleaDate": ["2007-02-23"], "ConvictOffence": ["dangerous driving"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Guildford"], "Sentence": ["disqualified from driving", "three months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["disqualified from driving"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Eye-witnesses"], "DefEvidTypeTrial": ["Offender believes actions justified"], "PreSentReport": ["Don't know"], "AggFactSent": ["bad case of dangerous", "previous convictions"], "MitFactSent": ["has lost that employment"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Sentence"], "AppealGround": ["four years was excessive"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Allowed&Sentence Replaced by More Excessive Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["period of four years was excessive"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
293
No: 200401601 A4, 200401707 A4 Neutral Citation Number: [2004] EWCA Crim 2347 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 22nd July 2004 B E F O R E: LORD JUSTICE ROSE (Vice President of the Court of Appeal, Criminal Division) MR JUSTICE NELSON MR JUSTICE MCCOMBE - - - - - - - - - - R E G I N A -v- MARK ANTHONY TOOMEY AMOS GUY FRANCIS - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - MR T CRAY appeared on behalf of the APPLICANT TOOMEY MR S REID appeared on behalf of the APPLICANT FRANCIS - - - - - - - - - - J U D G M E N T Thursday, 22nd July 2004 1. LORD JUSTICE ROSE: On 24th February 2004, at Blackfriars Crown Court, these applicants pleaded guilty on re-arraignment and the following day they were sentenced by His Honour Judge Hitching, in the case of Toomey to eight years' imprisonment for robbery and in the case of Francis to seven years' imprisonment for robbery. Counts of false imprisonment and theft were left on the file on the usual terms. They now renew their applications for leave to appeal against sentence following refusal by the single judge. 2. The victim of their activity was a 30 year old man who lived alone on the top seventh floor of a tower block in Plumstead. He was a homosexual. He sought to maintain the privacy of his private life. 3. Soon after he moved into that flat he met the applicant Toomey, who visited him and asked him for money. On a number of occasions the victim of this offence, as he became, handed over money to Toomey, usually in the sum of £20. 4. These sort of events came to an end when Toomey was sent to prison in November 2002, but during the spring and summer of the following year the applicant Francis started to visit the complainant and ask for money, which was handed over. 5. At about 9.30 on the evening of 8th October 2003 the two applicants visited the complainant at his flat, and at Toomey's request the complainant handed over to him £20. At the time the complainant was with a 17 year old youth, as must have been apparent to his unwelcome visitors. 6. Shortly after 11 o'clock the same evening, while the victim and the youth were watching a film, there was a knock at the door and Toomey was shouting through the door. For a while the victim ignored this, but then there was a loud thud from the roof of the flat. The victim looked out and saw Toomey jumping down onto his rear balcony, brandishing a hammer with which he smashed the lounge window. The complainant ran to his front door, but when he opened it he was confronted by Francis and another man. He was pushed back into the flat and forced to the ground. He cried out for help, a hand was put over his mouth and money was demanded from him. He handed over £40. The men left. 7. Later that evening the two applicants were arrested. In interview they declined to make any comment. 8. When he passed sentence, the learned judge referred to the vulnerability, by reason of his sexuality, of the victim of this offence, and he referred to the bullying in the background history to the offence which we have briefly summarised. The judge pointed out that the victim of that bullying was, as was anticipated by those bullying him, reluctant to go to the police, and indeed when they returned on the occasion that the robbery was committed, they did not wear disguises because, as the judge described it, they were quietly confident that their victim would not do anything. They were both, the judge pointed out, big men, well able to overpower their victim. 9. The picture which, in summary, the judge described was of a vulnerable victim, terrified in his own home by two much larger men. He indicated that he would give credit for the pleas of guilty, but pointed out that they were tendered at a late stage and there was no obvious demonstration of remorse by either of the applicants. Indeed until the very last moment the complainant had been faced with the prospect of giving evidence against them. 10. The judge noted that Toomey's record was more serious than that of Francis and, furthermore, he was on licence at the time when he committed this offence. Toomey is 29 years of age. He has previous convictions for affray, burglary, attempted burglary, inflicting grievous bodily harm with intent and common assault. Francis, who is about ten years older, also has two previous convictions for assault with intent to resist arrest and one for threatening behaviour. 11. The submission which is made by Mr Cray, on behalf of Toomey, is that the learned judge, in indicating a starting point of nine to ten years following a conviction, chose too high a starting point bearing in mind that this was a single offence, albeit committed against an unusual background. Mr Cray draws attention to Attorney General's Reference No 48 of 2000 , R v Johnson [2001] 1 Cr App R (S) 423 , where, at page 427, following a review of some of the authorities, Roch LJ indicated that in relation to a single offence where an offender had pleaded guilty (and he clearly had in mind where a maximum discount was being given for a plea of guilty), the range appropriate is between four and seven years' imprisonment. 12. Mr Reid, on behalf of Francis, added to that criticism of the judge's approach a criticism of further observations which he made which seemed to suggest that he believed that he was imposing, in the sentences which he selected, sentences at the lower end of the appropriate bracket, and that, submits Mr Reid, is not right. 13. The crucial question for this court is whether it is arguable that the sentences imposed on either of these applicants were manifestly excessive. In our judgment, these were severe sentences. But this was an extremely unpleasant offence, committed by two large men with previous convictions for violence against a vulnerable victim in his own home. In our judgment, it is not, even arguably, a manifestly excessive sentence. Accordingly, these renewed applications, despite the succinct and attractive submissions of both counsel, are refused.
{"ConvCourtName": ["Blackfriars Crown Court"], "ConvictPleaDate": ["24th February 2004"], "ConvictOffence": ["robbery", "false imprisonment", "theft"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["tendered at a late stage"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Blackfriars Crown Court"], "Sentence": ["eight years' imprisonment", "seven years' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["Counts of false imprisonment and theft were left on the file on the usual terms."], "OffSex": ["data not available"], "OffAgeOffence": ["who is about ten years older", "29"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["3. Soon after he moved into that flat he met the applicant Toomey, who visited him and asked him for money. On a number of occasions the victim of this offence, as he became, handed over money to Toomey, usually in the sum of £20."], "VictimType": ["30 year old man"], "VicNum": ["30 year old man"], "VicSex": ["man"], "VicAgeOffence": ["30"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["lived alone on the top seventh floor of a tower block in Plumstead."], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["These sort of events came to an end when Toomey was sent to prison in November 2002, but during the spring and summer of the following year the applicant Francis started to visit the complainant and ask for money, which was handed over.5. At about 9.30 on the evening of 8th October 2003 the two applicants visited the complainant at his flat, and at Toomey's request the complainant handed over to him £20. At the time the complainant was with a 17 year old youth, as must have been apparent to his unwelcome visitors.6. Shortly after 11 o'clock the same evening, while the victim and the youth were watching a film, there was a knock at the door and Toomey was shouting through the door. For a while the victim ignored this, but then there was a loud thud from the roof of the flat. The victim looked out and saw Toomey jumping down onto his rear balcony, brandishing a hammer with which he smashed the lounge window. The complainant ran to his front door, but when he opened it he was confronted by Francis and another man. He was pushed back into the flat and forced to the ground. He cried out for help, a hand was put over his mouth and money was demanded from him. He handed over £40. The men left."], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["vulnerable victim", "big men, well able to overpower their victim.", "no obvious demonstration of remorse", "hammer", "in his own home", "Francis and another man.", "on licence at the time when he committed this offence.", "to the vulnerability, by reason of his sexuality", "previous convictions for affray, burglary, attempted burglary, inflicting grievous bodily harm with intent and common assault", "previous convictions for assault with intent to resist arrest and one for threatening behaviour."], "MitFactSent": ["pleas of guilty"], "VicImpactStatement": ["data not available"], "Appellant": ["data not available"], "CoDefAccNum": ["two large men"], "AppealAgainst": ["appeal against sentence", "starting point of nine to ten years following a conviction, chose too high a starting point bearing in mind that this was a single offence, albeit committed against an unusual background."], "AppealGround": ["manifestly excessive"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["starting point of nine to ten years following a conviction, chose too high a starting point bearing in mind that this was a single offence, albeit committed against an unusual background."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["it is not, even arguably, a manifestly excessive sentence."]}
{"ConvCourtName": ["Blackfriars Crown Court"], "ConvictPleaDate": ["2004-02-24"], "ConvictOffence": ["theft", "false imprisonment", "robbery"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["tendered at a late stage"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Blackfriars Crown Court"], "Sentence": ["seven years' imprisonment", "eight years' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["Counts of false imprisonment and theft were left on the file on the usual terms."], "OffSex": ["data not available"], "OffAgeOffence": ["39", "29"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Male"], "VicAgeOffence": ["30"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["victim testimony"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["previous convictions for assault with intent to resist arrest and one for threatening behaviour.", "previous convictions for affray, burglary, attempted burglary, inflicting grievous bodily harm with intent and common assault", "on licence at the time when he committed this offence.", "no obvious demonstration of remorse", "in his own home", "vulnerable victim", "big men, well able to overpower their victim.", "to the vulnerability, by reason of his sexuality", "gang/multiple offenders", "weapon"], "MitFactSent": ["pleas of guilty"], "VicImpactStatement": ["Don't Know"], "Appellant": ["data not available"], "CoDefAccNum": ["1"], "AppealAgainst": ["appeal against sentence", "starting point of nine to ten years following a conviction, chose too high a starting point bearing in mind that this was a single offence, albeit committed against an unusual background."], "AppealGround": ["manifestly excessive"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["starting point of nine to ten years following a conviction, chose too high a starting point bearing in mind that this was a single offence, albeit committed against an unusual background."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["judge correctly weight aggravating and mitigating factors"]}
589
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I N THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2023/01163/A5 [ 2023] EWCA Crim 1063 Royal Courts of Justice The Strand London WC2A 2LL Friday 8 th September 2023 B e f o r e: LORD JUSTICE FULFORD ( Sitting in Retirement ) MRS JUSTICE STEYN DBE MR JUSTICE FORDHAM ____________________ R E X - v - KHLOE SIMMONDS ____________________ 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 R Amarasinha appeared on behalf of the Appellant J U D G M E N T Friday 8 th September 2023 LORD JUSTICE FULFORD: I shall ask Mrs Justice Steyn to give the judgment of the court. MRS JUSTICE STEYN: Introduction 1. On 9 th May 2022, in the Crown Court at Isleworth, the appellant pleaded guilty to one offence of theft, contrary to section 1(1) of the Theft Act 1968 (count 1), and to one offence of robbery, contrary to section 8(1) of the Theft Act 1968 (count 2). Ten months later, on 9 th March 2003, she was sentenced to six years and nine months' imprisonment for the robbery. No separate penalty was imposed for the theft. 2. The appellant now appeals against sentence with leave granted by the single judge. The Facts 3. The offences were committed in the early hours of the morning of 26 th February 2020. The appellant was then 20 years old. She met the victim of the offences ("V") in January 2020, about six weeks or so before the offences. V was a school friend of Tyler Hicks, who was then the appellant's boyfriend and became her co-defendant on the count of robbery. 4. The appellant was homeless. Out of kindness V, who understood what it was like to be homeless having been in that position himself, allowed the appellant to sleep at his flat for about a month. He gave her a key. There came a point when he asked the appellant to leave. She and Mr Hicks often ignored V’s wishes and continued to go round to his flat. But even then, V allowed the appellant to sleep in a tent in his shed. From time to time the appellant would go into V's flat to spend time with him to "chill" (as V put it). 5. In the early hours of 26 th February 2020 the appellant texted angry messages to V accusing him of lying to her when he had said that he was going to sleep. She and Mr Hicks had wanted to spend time with him in his flat, and he plainly did not want them there that evening. The appellant sent V a text suggesting that he had caused the loss of her unborn child. V was at a loss to understand what she was talking about, not least given that the appellant is a pre-operative transwoman. The exchange ended with V saying that he wanted to put their friendship "on hold". 6. At 4 am V was still awake and playing on his games console. The appellant and Mr Hicks went to V’s flat. Through his living room window the appellant told V that they wanted to sort out their friendship. That was not true, but she said it to make him open the door and talk to Mr Hicks. While V was doing so, the appellant climbed in through the open window and stole V's mobile phone, before leaving again through the window. That was the conduct reflected in the theft count. 7. Shortly afterwards, the appellant and Mr Hicks returned to the flat. Using the key that V had given to the appellant they let themselves in. The appellant produced and held a large knife, while Mr Hicks demanded money. V said that he had none. They took an Xbox and searched for money while the appellant was still holding the knife, which she pointed at V from time to time. She told V that she was "not afraid to use this" (referring to the knife). The couple threatened V that if he reported them, they would come back. They told him that he would be accused of raping the appellant. They left the flat and then returned after a short time to demand through the open window that V provide the password to his phone. He said that he did not know it. They threatened to "brick" his window before leaving. 8. After the incident V went to stay with relatives. For nearly a week he was too frightened to return to his flat. When he did return, accompanied by his mother, he found that the appellant had posted his smashed mobile phone through his letter box. V subsequently went to hospital to have his physical and mental health checked. He described himself as having a serious medical condition with his heart, giving rise to a "great possibility" that he could suffer a heart attack if he was under too much stress. He said that the incident had caused him a great deal of stress and anxiety, and that he had been scared for his life. The Reports 9. A report was obtained from Dr Lawrence Yong, a Principal Clinical Psychologist, prior to sentencing and put before the Recorder by the defence. Dr Yong's assessment, which was cut short as the appellant, who has autism and Attention Deficit Hyperactivity Disorder ("ADHD") diagnoses, said after two hours that she did not wish to continue. Consequently, there were a number of matters on which he was not able to give an opinion. Nevertheless, Dr Yong advised that the appellant's reports of excessive alcohol use, which were corroborated by her grandmother and medical records going back to August 2020, met the criteria for a Disorder due to use of alcohol, unspecified, according to the International Classification of Diseases 11 th Revision diagnostic manual. 10. At paragraph 7.2.2 of his report, Dr Yong stated: "… [The appellant] reported that she had drunk 'a lot of alcohol' at the time to the extent of blacking out and not remembering the offences. Assuming this is true, her thinking and behaviour would likely to have been far more impacted by her intoxication than having diagnoses of ADHD and autism." 11. At paragraph 7.1.11 Dr Yong advised: "Based on the available information, it is my opinion that [the appellant] at the very least has struggled with significant emotional distress that co-occurs with excessive alcohol use, which can lead to suicidal thoughts and actual self-harm. It is unclear to what level of severity she currently experiences these, as her self-report was contradictory. It is my opinion that [the appellant's] reticence to engage in this assessment was accompanied by her minimising her accounts of her past and current difficulties. This may be due to her not feeling safe enough in relationships to others to be vulnerable about her difficulties and trust that she will be helped by them. This appears to be a longstanding tendency rather than specific to this particular assessment. Her medical records indicate that she has alerted others to her need for help but subsequently departed before receiving it, such as at the Northwick Park Hospital Emergency Department on 12 th October 2020 and Urgent Care Centre on 11 th December 2020. Unfortunately [the appellant] struggles with feeling trusting enough of others to effectively receive their care can lead to a cycle where her sense that others do not, cannot or will not help her are reinforced, leaving her less likely to be helped in future. There is thus a risk that her evasiveness and minimisation of the specific difficulties she faces leads others to underestimate her struggles. …" 12. Dr Yong expressed the view that if, being a transwoman, she receives a custodial sentence in a male prison, "there could be a heightened risk of [the appellant's] mental health deteriorating". In addition, he observed that, given her history of self-harm and suicidal ideation in the recent past, she is at increased risk of these in a male or female prison. She "appears to have few adaptive ways of coping with her mental health". 13. The Recorder also had the benefit of a pre-sentence report. Its author noted that the appellant agreed with the facts presented by the prosecution, but that she did not remember much of what had happened on the day of the robbery as she had been intoxicated through alcohol misuse. The author observed: "… [The appellant] Ms Simmonds takes very little accountability and places the blame solely at the feet of Mr Hicks, claiming she would not have committed the offences had it not been for his encouragement. She expressed regret but failed to display remorse; this may be owing to her diagnosis of autism and her ability to express and demonstrate emotions appropriately." 14. The author of the pre-sentence report notes that the appellant has diagnoses of autism and ADHD and that she had attended a school for those who suffered with autism which was able to accommodate her needs. The author stated that "[the appellant] presents as someone who is extremely vulnerable…" Her offending behaviour was described as shedding light on "her immaturity and lack of consequential thinking". The Sentence 15. The Recorder observed that although this was a very sad case involving three young people who were all vulnerable by virtue of their mental health difficulties, a knifepoint robbery in a person's home has to be met by a prison sentence measured in years. 16. He treated the robbery count as the lead offence. He observed that the theft was part of the picture which aggravated the robbery, and so he would give a "small uplift" for the theft. The Recorder applied the Sentencing Council's Robbery (Dwelling) Guideline. He assessed that the offence fell within category 2A, as submitted by the defence. The appellant's culpability was high (A), because she had produced a bladed article to threaten violence, and, as a trusted keyholder, she had abused her position. With respect to harm, the Recorder observed that very high value goods were not targeted or obtained. The cost of replacing the Xbox was £110. The flat was not ransacked or soiled. There has been real psychological harm to V, who had a medical condition as a result of which he had feared that the stress might cause him to have a heart attack. Although it was not "serious psychological harm", such as to put the offence in harm category 1, the psychological harm was such that the offence fell within harm category 2. 17. The Recorder observed that the starting point for a category 2A offence is eight years' custody, with a range of six to ten years. The Recorder assessed that the provisional sentence, prior to adjustment for aggravating and mitigating factors and credit, should be nine years' custody. He said that he would adopt a provisional sentence above the starting point to reflect the harm that was caused to V. 18. The aggravating factors warranting an uplift from that provisional sentence were: the theft; the threats to discourage V from reporting the incident (which were particularly unpleasant as they included a threat to accuse V of rape); the fact that the incident was prolonged and took place in the very early hours of the morning; and the fact that V felt compelled to leave his home. The Recorder recognised that the appellant's intoxication should not be treated as an aggravating factor, given her disorder due to the use of alcohol. 19. The mitigating factors taken into account by the Recorder were: first, the appellant's age (we note that he said that she was 21 at the time of the offences, whereas she was in fact 20 years and two months), but he took into account that she was a young person and bore in mind the guidance of this court that turning the age of 18 should not be treated as a "cliff edge" when it comes to sentencing; secondly, the appellant's lack of any previous convictions; thirdly, her remorse (although he observed that she had engaged in some minimisation of her wrongdoing); fourthly, the delay; and finally, he had regard to her vulnerability, bearing in mind her mental health diagnoses of autism and ADHD, her alcohol disorder, and the fact that imprisonment would be more difficult for her as a transwoman. The Recorder had regard to the guideline on sentencing offenders with mental disorders, developmental disorders or neurological impairments. 20. Balancing the aggravating and mitigating factors that he identified, and carefully noting factors that should not be double counted or which he did not accept applied, the Recorder assessed that the provisional sentence of nine years' custody should be reduced by one year. Accordingly, the sentence that would have been imposed following a trial was eight years' imprisonment. 21. The Recorder then gave the appellant 15 per cent credit for her guilty pleas, with the result that (having assessed that the appellant did not qualify as dangerous), he imposed a sentence of six years and nine months' imprisonment. The Grounds of Appeal 22. Mr Amarasinha, who appears on behalf of the appellant and to whom we are grateful for his excellent written submissions, contends that the sentence of six years and nine months' imprisonment for the robbery was manifestly excessive as insufficient reduction was applied for the mitigating factors, and insufficient credit was given for the guilty pleas which were indicated well in advance of trial. Decision 23. The Recorder's observation that although this was a very sad case, a knifepoint robbery in a person's home must be met with a prison sentence measured in years was clearly right. Nevertheless, although we recognise the care with which the Recorder applied the relevant guidelines and analysed the aggravating and mitigating factors, we are of the clear view that he erred in imposing a sentence of six years and nine months' imprisonment. 24. First, the uplift from eight to nine years, to reflect the psychological harm to the victim, was unjustified. The real psychological harm that he found was the only reason that the harm was not within category 3. The harm described by the victim justified the conclusion that this was a harm category 2 case. An assessment of culpability and harm did not warrant elevating the provisional sentence within the range above the starting point of eight years. 25. Secondly, in our view, once the aggravating and mitigating factors were taken into account, the result should have been a very substantial downward shift from the provisional sentence of eight years. We recognise that the aggravating factors of the theft of the mobile phone, the threats, the prolonged nature and timing of the incident, and the fact that V felt compelled to leave his home had to be reflected by elevating the provisional sentence. But a much greater downward shift was required to reflect the very strong mitigation, namely: a. The appellant's age and lack of maturity . As we have said, she was aged 20 at the time of the offence. The author of the pre-sentence report specifically noted her immaturity. In our view, it is apparent that she lacked the maturity of an average 20 year old at the time of the commission of the offences. b. The appellant's lack of any previous convictions . Although the Recorder took this into account, it is important to note also the lack of any re-offending on the part of the appellant in the three years since the offences were committed, particularly given her age and lack of maturity at the time of the offences. The fact that she has not been in trouble since is important mitigation. While the Recorder noted this fact in the context of his finding that she was not dangerous, he does not appear to have borne it in mind as a mitigating factor. c. The appellant's remorse . We note that, although the Recorder referred to some minimisation of wrongdoing, only the co-defendant put forward a basis of plea. The appellant indicated her willingness to plead guilty "accepting full prosecution facts" three months before the trial. In relation to her expression of remorse, we also bear in mind the impact of her autism, as identified in the pre-sentence report. d. Delay . The offences were committed on 26 th February 2020, and the appellant's first appearance in the Magistrates' court was on 4 th September 2020. She was arraigned and pleaded not guilty on 30 th October 2020. On 10 th February 2022, the appellant sought a mention for plea, having indicated her willingness to plead guilty to counts 1 and 2. She then did so at the first opportunity on 9 th May 2022. At that stage her co-defendant maintained his not guilty plea and the case could not proceed to trial due to lack of availability of counsel. In the event, the appellant was sentenced on 9 th March 2023 (two and a half years after her first appearance in the Magistrates' Court). e. The appellant's vulnerability . Imprisonment is likely to have a particularly severe impact on the appellant due to her "extreme vulnerability". There are a number of elements to her vulnerability. She suffers from autism (which was of sufficient severity for her to have been placed in a special school) and ADHD. There are evident mental health concerns. She has an alcohol misuse disorder and she is a transwoman. 26. In R v Harris (Frederick William) (No 2000/01540/W3) the court reduced the sentence of a transwoman who was described as being "in the process of a sex change", which was said to have "gone a long way to completion". The court recognised that prison presented "a greater ordeal" to the offender than it would "to somebody who was not in the middle of the sex change procedure", and reduced the sentence from three years to two years' imprisonment. In this case the appellant told Dr Yong in January 2023 that she had identified as female for the past "couple of years". Mr Amarasinha has drawn our attention to the guidance issued by the Ministry of Justice in relation to transgender prisoners (Guidance Overview, the Care and Management of Individuals who are Transgender), which explains how decisions are made regarding placement of transgender prisoners in the Prison Estate. Although the facts of this case are not identical to those in R v Harris , we have no doubt that being a transwoman in a male prison (at least initially, and very probably throughout her sentence) will make the experience of imprisonment more arduous for the appellant. 27. The downward adjustment of one year (from nine years) made by the Recorder, even bearing in mind all the aggravating factors, was substantially too little, given the strength of the mitigation, and resulted in a manifestly excessive sentence. In our view, adjusting for the aggravating and mitigating factors to which we have referred, it is appropriate to reduce the provisional sentence of eight years by two and a half years, to five years and six months, prior to giving credit for the appellant's guilty plea. 28. The Recorder gave 15 per cent credit. The appellant first appeared before the court on 4 th September 2020, and she pleaded not guilty on 30 th October 2020. She indicated her willingness to plead guilty over 15 months later, which was three months before her trial was set to begin. A discount of 15 per cent was in line with the Sentencing Council's Guideline (Reduction in Sentence for a Guilty Plea, first hearing on or after 1 st June 2017), indicating that after the first stage of proceedings, credit should decrease "from one quarter to a maximum of one tenth on the first day of trial, having regard to the time when the guilty plea is first indicated to the court relative to the progress of the case and the trial date". 29. Taking the term of five years and six months, and applying a 15 per cent discount gives a term of four years and eight months' imprisonment. In our view, in the exceptional circumstances of this case, that is the appropriate sentence. 30. Accordingly, we allow the appeal. We quash the sentence on count 2 (robbery) and substitute a sentence of four years and eight months' imprisonment. The order of no separate penalty on count 1 (theft) and the other orders imposed by the Recorder are undisturbed. ________________________________ 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] ______________________________
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{"ConvCourtName": ["Crown Court At Isleworth"], "ConvictPleaDate": ["2022-05-09"], "ConvictOffence": ["robbery", "theft"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["After first appearance and being arraigned"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["data not available"], "Sentence": ["six years and nine months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Female"], "OffAgeOffence": ["20"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Homeless"], "OffMentalOffence": ["Learning/developmental", "Had mental health problems"], "OffIntoxOffence": ["Yes-drinking"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Had mental health problems"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Victim testimony"], "DefEvidTypeTrial": ["Expert Evidence"], "PreSentReport": ["Don't know"], "AggFactSent": ["incident was prolonged", "threats", "real psychological harm to V,", "abused her position", "serious medical condition with his heart,"], "MitFactSent": ["[2yr between offence & sentencing]", "15 per cent credit", "imprisonment would be more difficult for her as a transwoman", "extremely vulnerable"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["1"], "AppealAgainst": ["against sentence"], "AppealGround": ["manifestly excessive as insufficient reduction"], "SentGuideWhich": ["Sentencing Council's Guideline (Reduction in Sentence for a Guilty Plea", "Sentencing Council's Robbery (Dwelling) Guideline.", "section 1(1) of the Theft Act 1968", "section 8(1) of the Theft Act 1968"], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["substantially too little, given the strength of the mitigation,"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
122
Neutral Citation Number: [2018] EWCA Crim 691 Case No: 201700920/B5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 20 March 2018 B e f o r e : LORD JUSTICE DAVIS MRS JUSTICE WHIPPLE DBE HIS HONOUR JUDGE PATRICK FIELD QC - - - - - - - - - - - - - - - - R E G I N A v NICHOLAS HULLAND - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr C Myrie appeared on behalf of the Appellant Mr W Hays appeared on behalf of the Crown - - - - - - - - - - - - - - - - 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 WHIPPLE: Introduction 2. This is an appeal against a confiscation order made on 27th January 2017 by Recorder Studd at the Reading Crown Court. The order was made under the Proceeds of Crime Act 2002 ("POCA"). This appeal is brought with the leave of the single judge. The appellant was represented before us by Mr Myrie, who did not appear below. The confiscation order is in the amount of £14,763 to be paid within three months or in default to serve 12 months' imprisonment. The facts 3. The facts are as follows. The appellant was a subcontractor working for a firm called King Brothers which was a construction company engaged in renovation works at a property belonging to Mr Mike Elliott. The property was known as Red Cedar. There were a number of valuable items in the property, some of which were on display and others stored in a safe. The items included jewellery, two Rolex watches and a ladies ring. 4. On 9th October 2015 the appellant gained entry to the property by force and took cash, jewellery, watches and the ring. 5. It was accepted by both parties at trial that the appellant was a class A drug user. He gave evidence that he had owed £1,500 to his dealer, that he offered the dealer the two watches that he had stolen from Red Cedar and that the drug dealer had accepted those watches in satisfaction of the drug set. The market value of the two Rolex watches was estimated to be £16,623. The dealer said the rest of the items were worthless and he was not interested in them. None of the stolen items has been recovered. Crown Court proceedings 6. On 17th March 2016 the appellant pleaded guilty to offences of theft (in relation to theft of a watch which was in fact returned to its owner) and the burglary from Red Cedar. On 8th April 2016 the appellant was sentenced to a period of two years' imprisonment for the burglary, with two months' imprisonment concurrent on the theft. 7. The prosecution brought proceedings under POCA. It was not contended that the appellant had a criminal lifestyle, but it was said that there had been a financial benefit from his criminal conduct, namely the proceeds of the burglary. The POCA matters came to trial before the Recorder in January 2017. 8. The Recorder had before her the Crown's statement of information under section 16 of POCA. She also had the appellant's section 17 statement. The appellant gave evidence at the hearing. The confiscation ruling 9. The Recorder resolved the disputes relating to the amount of the benefit and value of the stolen items. She concluded that the benefit from offending, including the value of the two watches, was £25,222.90. She went on to consider the available assets. She held that the appellant had no free property and no hidden assets. The issue was whether the two Rolex watches with a total value of £16,263 were tainted gifts within the meaning of POCA. She referred to section 78(1) of POCA which provided that: "If the defendant transfers property to another person for a consideration whose value is significantly less than the value of the property at the time of the transfer, he is to be treated as making a gift." She also referred to section 78(2) which addresses the value of the gift. 10. The Recorder concluded that the value of the gift was £14,763, that is the value of the Rolex watches, less the £1,500 which the appellant received for them in the form of the debt waiver. 11. Having regard to the statutory definition, she held that the transfer of the watches to the appellant's drug dealer amounted to a tainted gift. This gave an available amount of £14,763, being the aggregate of the appellant's free property (of which there was none) and the value of the tainted gift. This was the recoverable amount under section 7 POCA. 12. The Recorder noted the defence submission that in reality the appellant would not be able to recover the gifts and that therefore the default period of imprisonment would inevitably be served. The Recorder referred to R v Smith (Kim) [2014] 1 WLR 898 to support the proposition that the purpose of the legislation was to apply pressure to those who dissipated assets obtained in the course of their criminal conduct and to coerce them into making good the losses by all means at their disposal. She noted that if defendants were always able to defeat confiscation proceedings by reliance on lack of recovery of a tainted gift that would defeat the purpose of the legislative scheme. She also referred to R v Johnson (Beverley) [2016] EWCA Crim 10 , [2016] 4 WLR 57 at [25] where the court had recognised that the tainted gift regime was designed to deprive offenders of proceeds of crime which had apparently been given away, that the prison sentence in default exerted a pressure on the offender to recover the value of the gift from the recipient and that Parliament must have envisaged hardship in some cases where the gift could not, for whatever reason, be recovered so the default term was imposed. The Recorder made the confiscation order in the amount of £14,763. She noted that POCA had been amended and that she was entitled to make a substantial reduction of that amount if she was satisfied that the order was or would be impossible to enforce (this was, we interpose, a reference to section 6(5) of POCA, which we set out below). She referred again to Johnson and concluded that she should only reduce the amount in an exceptional case. 13. Of the appellant's circumstances, she said this: "This defendant, like so many others, is being pursued for a sum of money, which, on the face of it, he appears unable to pay. I do not know whether, as in the case of Johnson, others will pay it on his behalf, but I cannot say that such a position is wholly exceptional and therefore I am unable to reduce the period in default." She imposed the confiscation order to be paid within three months, with a period of 12 months' imprisonment in default. She also made a compensation order in favour of the victim and in favour of King Brothers. This appeal 14. In the grounds of appeal, which were drafted by Miss Xena Semikina, who appeared for the appellant in the Crown Court confiscation proceedings, the appellant advanced four grounds of challenge to the confiscation order: 1. The confiscation order should not have been made under section 6(5) of POCA because it would be disproportionate to require the appellant to pay this amount. 2. The term of imprisonment in default should have been reduced to a nominal period of one day because it is disproportionate to require the appellant to serve a longer term. 3. The sale of the Rolex watches to the drug dealer was not a tainted gift. 4. If the sale of the watches was a tainted gift the value is nil. 15. In a skeleton argument prepared very shortly before the appeal, Mr Myrie abandoned grounds 3 and 4. He accepted that the sale of the watches constituted a tainted gift, to which the Recorder had attributed the appropriate value. Further, in his oral submissions before us, Mr Myrie did not press ground 2 which related to the 12-month term of imprisonment set in default by the Recorder. 16. The focus of Mr Myrie's submissions before us was on ground 1 and on the proposition that a confiscation order should not have been made against this appellant in this case, or if it was made it should have been made in a substantially lower amount, on the basis of proportionality. Discussion 17. Before considering that ground, we wish to align ourselves with Mr Myrie's abandonment of grounds 3 and 4. We are satisfied that the sale of the Rolex watches in this case was, and was properly identified by the Recorder to be, a tainted gift and that the value attached to that gift for the purposes of POCA was £14,763. 18. We are further satisfied that the term of 12 months imposed by the Recorder in default of payment was proportionate. Mr Myrie was correct not to press ground 2. 19. We turn to consider the proportionality of the confiscation order, which is ground 1. 20. We start with the statutory scheme. The available amount is defined in section 9 of POCA. Once established that the Rolex watches were the subject of a tainted gift, the value of that gift fell to be included in the available amount - see section 7(2). Section 6(5) provides as follows: "(5) If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must— (a) decide the recoverable amount, and (b) make an order (a confiscation order) requiring him to pay that amount. Paragraph (b) applies only if, or to the extent that, it would not be disproportionate to require the defendant to pay the recoverable amount." Mr Myrie relies on the closing words of section 6(5) to argue that a confiscation order was disproportionate in this case. He acknowledges that the court in Waya [2013] 1 AC 294 confirmed at [21] and [24] that it would be very unusual for orders under the statute to be found to be disproportionate. He further acknowledges that the court could only conclude that a confiscation order was disproportionate within section 6(5) if the court was "affirmatively satisfied" that enforcement of the order was impossible, as confirmed by this court in Johnson at [31(iii)]. He submits that the Recorder in this case did make affirmative findings that the appellant would be unable to pay any confiscation order. Alternatively, he argues that she ought to have made such findings based on the evidence which was before her. 21. We are unable to accept Mr Myrie's submissions. In relation to his first submission, the Recorder was not affirmatively satisfied that enforcement of the order was impossible. Rather, she noted the appellant's submission that he was a habitual class A drugs user and that he appeared to be unable to pay, but she concluded that she did not know if others might pay on his behalf. We have already set out the relevant passage from her judgment. Thus, the Recorder self-evidently did not make an affirmative finding that the appellant would be unable to pay. She concluded that she did not know whether he would be able to pay. 22. In relation to Mr Myrie’s alternative submission, we are not persuaded that on the evidence before her it would have been appropriate for the Recorder to have concluded affirmatively that the appellant could not pay. She was correct to conclude that the matter was uncertain, because so it was. 23. For those reasons, this appeal must fail. There was no basis on the facts as found to depart from the usual rule requiring a confiscation order to be imposed. The confiscation order was not disproportionate. 24. We observe that there are many cases where defendants appear before the Crown Court saying that they are impecunious for one reason or another. Sadly, the dependency on drugs is a common reason given. There is nothing exceptional in that situation. Yet the logical end point of Mr Myrie's submissions is that the Recorder should have been affirmatively satisfied that the appellant would not be able to meet the confiscation order simply because he was at that time impecunious and drug dependent. Mr Myrie argues, in effect, that on the basis of his impecuniosity and drug dependency, the Recorder should have treated his case as an exceptional one and disapplied the usual rule in section 6(5). But this was not an exceptional case, and the Recorder was right to conclude that it was not an exceptional case. This was an ordinary case to which the usual rule applied. A confiscation order had to be made. 25. We repeat what has been said in previous cases, that assessing proportionality for the purposes of POCA is not to be equated with a broad discretion on the part of the Crown Court Judge; for this proposition see Waya at [24] and Johnson at [31(ii)]. 26. Further, we note that Mr Myrie's submissions are inconsistent with Johnson because in that case too the appellant was out of funds at the time the confiscation order was made in the Crown Court. Yet this court upheld the confiscation order. In fact by the time that case came on appeal to this court, the funds to meet the confiscation order had been found, demonstrating that impecunious defendants can sometimes find funds or be funded by others to meet the terms of any confiscation order. 27. We also note that this court has very recently confirmed the following in R v Box [2018] EWCA Crim 542 at [21]: "… A court making a confiscation order will treat protestations that the case before it is such a case [ie where to make a confiscation order would be disproportionate within section 6(5)] with scepticism and will require the clearest, most complete and unassailable evidence before avoiding the usual statutory order on this ground. This is because, necessarily, the court is dealing with criminals whose mere assertion is unlikely to carry much weight. The ease with which criminal property may be concealed by being passed to others was emphasised in the judgment of the court in Johnson and requires such an approach to the facts." Conclusion 28. This appeal is dismissed. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["17th March 2016"], "ConvictOffence": ["burglary", "theft"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Reading Crown Court."], "Sentence": ["two months' imprisonment", "confiscation order is in the amount of £14,763 to be paid within three months or in default to serve 12 months' imprisonment", "two years' imprisonment"], "SentServe": ["concurrent", "confiscation order"], "WhatAncillary": ["compensation order", "confiscation order"], "OffSex": ["He"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["subcontractor"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["renovation works at a property"], "VictimType": ["the victim"], "VicNum": ["the victim"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["stolen items"], "DefEvidTypeTrial": ["appellant's section 17 statement."], "PreSentReport": ["data not available"], "AggFactSent": ["market value"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against a confiscation order"], "AppealGround": ["The confiscation order should not have been made under section 6(5) of POCA because it would be disproportionate to require the appellant to pay this amount."], "SentGuideWhich": ["Proceeds of Crime Act 2002 (\"POCA\")"], "AppealOutcome": ["appeal is dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The confiscation order was not disproportionate."]}
{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["2016-03-17"], "ConvictOffence": ["burglary", "theft"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Reading Crown Court."], "Sentence": ["two months' imprisonment", "two years' imprisonment", "confiscation order is in the amount of £14,763 to be paid within three months or in default to serve 12 months' imprisonment"], "SentServe": ["Concurrent", "Concurrent"], "WhatAncillary": ["compensation order", "confiscation order"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["Don't Know"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Victim testimony"], "DefEvidTypeTrial": ["Offender account"], "PreSentReport": ["Don't know"], "AggFactSent": ["Financial gain /value"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Sentence"], "AppealGround": ["The confiscation order should not have been made under section 6(5) of POCA because it would be disproportionate to require the appellant to pay this amount."], "SentGuideWhich": ["Proceeds of Crime Act 2002 (\"POCA\")"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The confiscation order was not disproportionate."]}
183
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 35 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202203323/A2 Royal Courts of Justice Strand London WC2A 2LL Friday 13 January 2023 Before: LORD JUSTICE DINGEMANS MR JUSTICE MORRIS MR JUSTICE SWEETING REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 REX V JOSEPH BARKER _________ 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 C PATTISON appeared on behalf of the Attorney General. MR P KELEHER KC appeared on behalf of the Offender. _________ J U D G M E N T LORD JUSTICE DINGEMANS: Introduction and grounds of the application 1. This is the hearing of an application by His Majesty's Solicitor General for leave to refer a sentence which he regards as unduly lenient. 2. The respondent, Joseph Barker, was born on 16 May 1999 and is now aged 23 years. He was acquitted of the murder of Kai Davis but convicted of Mr Davis's manslaughter on 14 October 2022, following a trial which lasted a little over 3 weeks in the Crown Court at Kingston before HHJ John Lodge and a jury and on 19 October 2022 Mr Barker was sentenced to imprisonment for 11 years by the judge. 3. It is submitted on behalf of the Solicitor General that the judge erred by concluding that the sentence of 11 years reflected the multiple aggravating factors and the overall seriousness of the offence committed by Mr Barker. It is submitted that the judge should have increased the starting point by more to reflect the aggravating factors and should not have discounted it by as much as he did to reflect the mitigating factors and that the sentence was, it was submitted, substantially too short. 4. It is submitted on behalf of Mr Barker that the judge was best placed to make the factual findings that he did and the sentence was a proper sentence given the findings made by the judge. The aggravating features had been fairly reflected by the judge and the mitigating factors were there to be seen. The sentence was not lenient or unduly lenient. Factual circumstances 5. The unlawful killing of Mr Davis took place on 21 August 2021. On the evening of 20 August 2021 Mr Barker had travelled to Kingston with others. Mr Myles was in possession of a knife which he was prepared to use should the opportunity present itself. Mr Barker did not know that Mr Davis (who was known as "KD") would be in Kingston that evening. There was no pre-arranged plan to meet up with or attack Mr Davis at that stage of the evening. Details of the events are shown in the graphic stills and CCTV evidence which we have seen on the Digital Case System. 6. Mr Barker, together with others including Mr Myles, decided to go to a nightclub in Kingston called Pryzm. Before entering Pryzm Mr Barker, Mr Myles and another male, Mr Baker-Perez, deposited two knives in the Weston Park alleyway. They knew that there were stringent entry procedures at Pryzm and that knives could not be taken inside. 7. Mr Davis did not go to the Pryzm Nightclub that night. He travelled to Kingston with his friend, Brendon Baxter. There they met Olivia Baxter (Mr Baxter's sister and Mr Davis's former partner). Ms Baxter left Mr Davis who remained in Kingston with Mr Baxter. They were stood amongst a group of people who had congregated around the Wilko store following the closing of the Pryzm Nightclub. 8. After leaving the Pryzm Nightclub in the early hours of 21 August 2021 Mr Myles and Mr Baker-Perez met outside a hair salon on Clarence Street on the opposite side of the road to the Wilko store. After a short time they were joined by Mr Adams and Mr Barker. Mr Adams whispered in the ear of Mr Myles, and the prosecution case was that Mr Adams had told Mr Myles that Mr Davis was outside the Wilko store. Mr Myles together with Mr Barker, Mr Adams and Mr Barker-Perez walked along Clarence Street past the Wilko stores. Mr Myles together with two others, that is Mr Barker-Perez and Mr Adams, entered Weston Park alleyway and it is at that time that they must have retrieved the two knives that had been left there earlier. Mr Myles, Mr Barker-Perez and Mr Adams returned to a metal archway at the top of the Old London Road close to the Wilko store. Mr Barker was stood by the archway and was a short distance from the doors of the Wilko store where Mr Davis and Ms Baxter were standing. Mr Barker had by now obtained a hooded top from another person which was, as has been pointed out in the submissions to us today, used as a disguise for what happened next. The judge inferred at this stage that Mr Barker must have been given a knife. Mr Barker and Mr Myles were now each armed with a knife. A short time later Mr Myles obtained a hooded top as well. Mr Barker and Mr Myles pulled the hoods over their heads. Mr Barker-Perez then walked in the direction of the Wilko store and was followed by Mr Barker, Mr Myles and Mr Adams. Mr Barker and Mr Myles went through the group towards the doors where Mr Davis and Mr Baxter were stood. Mr Barker and Mr Myles approached the doors of Wilko and one of the two said "KD?", effectively confirming, it was said by the prosecution, that they had the correct target. 9. CCTV footage from the Wilko store demonstrated that any confrontation with Mr Davis lasted no longer than 3 seconds. In fact Mr Myles stabbed Mr Davis once to the chest and then ran away along Clarence Street. Mr Myles discarded the knife down a drain on a quiet side street. The knife was recovered during the investigation. Mr Davis ran away from the doors of Wilko. He was chased a short distance by Mr Barker who then stopped and returned to the large group of people by Wilko store. Less than 2 minutes later Mr Barker walked across the road and then a confrontation took place between Mr Barker and persons not associated with Mr Davis. At this stage Mr Barker had a knife in his hand, which he held by his side. He discarded that knife and it was later received by security staff from Pryzm who seized it. 10. Mr Barker and Mr Myles met up a short time later by the Cromwell Street bus station in Kingston. Mr Barker removed the hooded top and discarded it. They were then joined by Mr Barker-Perez and another individual and they returned towards the area of the Kingston railway station. Mr Barker-Perez returned to the area around Wilko where he met Mr Adams. By now Mr Davis had collapsed. Mr Adams was aware of that and having had a brief conversation with Mr Adams, Mr Barker-Perez re-joined Mr Barker and Mr Myles and ultimately the three of them took a taxi away from Kingston. 11. Mr Davis had sustained a single stab wound to the chest. He was given emergency medical assistance at the scene of his collapse and in hospital. The injuries were so serious that his death followed. He was pronounced dead at 5.47 on 21 August 2021. 12. A post mortem was carried out which showed that the stab wound had penetrated the chest to a depth of 7 to 13 centimetres. Mr Davis had other injuries, mainly abrasions to his face, hands and legs but those were likely to have been caused by the collapse to the ground. 13. Mr Barker left his home address and stayed with relatives before he was arrested. The clothing that he was wearing that night and his mobile telephone were not recovered by the police. Mr Myles left his home address and travelled to the Portsmouth area for two nights and the hooded top that he was wearing was also not recovered. 14. Mr Barker was arrested. When interviewed by police he provided a short statement denying that he had stabbed Mr Davis. Mr Barker did not answer any questions in interview. He was charged and Mr Myles and Mr Adams were also charged. Mr Baker-Perez had fled the jurisdiction before he could be arrested. 15. At the trial Mr Myles was convicted of murder. Mr Barker was acquitted of murder but convicted of manslaughter and Mr Adams was acquitted of all offences. The sentence 16. The judge had available Sentencing Notes from the prosecution and defence. There were victim personal statements from Mr Davis's sisters describing the impact of the death of Mr Davis which had had on each of them and their family. Reference was made to the role played by Mr Davis and the lives of his niece and daughter and the death of Mr Davis had had a particular serious effect on the family because of earlier bereavements. There were also character references about Mr Barker showing his qualities as a loving father and being a kind and caring person. Sentencing remarks 17. The judge said that the jury were given clear directions on manslaughter in the form of a Route to Verdict. They must have concluded as follows: Mr Barker participated in an unlawful attack on Kai Davis in that he intentionally assisted or encouraged Mr Myles, or was in a position to assist, if it became necessary. Mr Barker did not intend that Mr Myles would act with intent to cause death or really serious bodily harm to Mr Davis. Finally, a reasonable person would have concluded that there was a risk of some harm to Mr Davis. The judge said: "It is clear from [Mr Barker's] acquittal for murder, that he did not intend that Ben Myles would use the knife, if necessary, to [inflict] death or really serious bodily harm [to Mr Davis]." 18. The judge recorded that the attack had involved the use of a weapon and Mr Barker knew that there was going to be an attack. He had a knife in his possession at the time of the attack and he knew that Mr Miles had a knife in his possession. The judge also recorded that Mr Barker had not drawn or used the knife that he was carrying during the incident. He had dropped it soon after. He had changed his clothing. He knew of the trip to Weston Park where the two knives were recovered and was present when Mr Myles changed his clothing, indicating that there was some planning. In fact the judge said: "On these facts, the prosecution invite me to conclude that the factor I have set out above, namely that death was caused in the course of [an] unlawful act which carried a high risk of death or really serious bodily harm, which ought to, was, ought to have been obvious to the offender, is so extreme that I should raise the category to one of Category A. I am not able to make that finding, I conclude that the case stays within Category B, albeit with aggravating factors." 19. The judge rejected the submission that Mr Barker had come into the possession of the knife after the fatal stabbing of Mr Davis, and the judge made a finding in relation to culpability, where he said that: "In this case I am satisfied Joseph Barker knew there was to be an attack, he had changed his clothing. I am satisfied that he knew Ben Myles had a knife at the time of the attack. He knew of the trip to Weston Park, and was present when Ben Myles changed his clothing." 20. The judge referred to the Unlawful Act Manslaughter Definitive Sentencing Guideline and stated: "In my judgment, this case falls within Category B, indicating high culpability. The guideline sets out, death was caused in the [course] of an unlawful act which carries a high risk of death or really serious bodily harm, which was or ought to have been obvious to [Mr Barker]." This is one of the factors indicating high culpability. 21. The judge took a starting point of 12 years' imprisonment from the Sentencing Guideline, noting there was a category range of 8 to 16 years. The judge identified aggravating factors which increased the seriousness of the offending and merited an upward adjustment of 2 years from the starting point of 12 years' imprisonment to 14 years' imprisonment. Those aggravating factors were: the use of a weapon; there was some planning because clothing was changed, and the judge said he could not say there was a lack of premeditation. This was not a spontaneous attack but the judge did not find premeditation in the sense of the Guideline saying he was not able to make that finding. The judge identified mitigating factors which merited a downward adjustment of 3 years' imprisonment from 14 years' imprisonment to 11 years' imprisonment being age (which at the time was 22 years) and lack of previous convictions. The judge disregarded a youth conditional caution which Mr Barker had and positive good character set out in the references. The sentence was therefore 11 years' imprisonment. A different and substantially more severe sentence was passed on Mr Myles who was convicted of murder. The decision 22. In our judgment, the judge, who was the trial judge and who had seen all of the evidence at the trial (although Mr Barker had not given evidence) was best placed to make the findings that he did about the relevant category for the purposes of the Sentencing Guideline. This is common ground. In our judgment, the judge was also entitled to make the findings that he did in relation to aggravating factors. The Solicitor General is right to identify that there is an overlap between the category ranges for culpability A which is very high culpability and culpability B which is high culpability , but that does not mean that the judge was entitled to treat this as a culpability A offence when he had found that it was a culpability B offence. 23. So far as the other aggravating factors identified by the Solicitor General are concerned, the Solicitor General points to the fact that Mr Barker was armed with a knife. That is true and the judge specifically referred to it and identified that in relation to his sentencing remarks. The Solicitor General refers to the fact that the death occurred in the context of an offence that was planned or premeditated. It is right that there was a planned or premeditated attack on Mr Davis, and that was an important finding made by the judge, but it is also important and indeed only fair to Mr Barker to note that the judge carefully identified what was planned or premeditated so far as Mr Barker was concerned, on the basis of the jury's findings. There is no basis to interfere with these findings. 24. So far as location and timing of the offence is concerned, the judge referred specifically to those factors when setting out the circumstances of the offence. The offence was committed under the influence of alcohol. It is plain that there had been drinking that night and indeed that was common ground at the trial but, in our judgment, the submission made on behalf of Mr Barker that that did not very much affect the culpability found by the judge was a proper submission to make. The judge noted that it had been submitted that this offence was committed as part of a group. In fact there was a group that walked towards Mr Davis but the verdicts show, on the basis that it was only Mr Myles who was convicted of murder, that it was only Mr Myles who had the requisite intention to kill or cause really serious bodily harm and indeed it was Mr Myles who appears to have carried out the stabbing without the knowledge of the others, at that stage. 25. Reference was also made on behalf of the Solicitor General to post-offence conduct and the judge referred to all those factors in his sentencing remarks. Finally and importantly, the Solicitor General refers to the need for deterrence for knife crimes of this sort. That is an important submission but the Sentencing Guidelines already take account of the need for deterrence for knife crime by specifically identifying the statutory and other aggravating factors including the offence involved the use of a weapon. In our judgment, it is not possible to go outside the Sentencing Council Guidelines simply because of the need for deterrence. Mr Barker was convicted of manslaughter and not murder. 26. It is common ground that the judge had identified the right mitigating factors which were age, no previous convictions and positive good character. Therefore that leaves us with the Solicitor General's overarching submission which was the judge should have put the sentence up by more than the 2 years that he did and should not have reduced the increased sentence of 14 years by the 3 years that he did. In our judgment, that is a submission which is not well founded in this case. That is because the judge was the person who had seen and heard all of the trial and was best able to identify the aggravating and mitigating factors at the relevant time. This was a sentence which was within the range provided in the Guidelines based firmly on the findings of fact which were properly made by the judge. 27. In these circumstances, we are unable to say that this is a sentence that was unduly lenient. We have not been able to identify any failing on the part of the trial judge in the sentencing exercise and therefore refuse leave for the Reference. 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]
{"ConvCourtName": ["Crown Court at Kingston"], "ConvictPleaDate": ["14 October 2022"], "ConvictOffence": ["manslaughter"], "AcquitOffence": ["murder"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Kingston"], "Sentence": ["imprisonment for 11 years"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["22"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["home address"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["under the influence of alcohol"], "OffVicRelation": ["travelled to Kingston with others", "persons not associated"], "VictimType": ["Mr Davis"], "VicNum": ["Mr Davis"], "VicSex": ["Mr"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["post mortem", "CCTV evidence", "emergency medical"], "DefEvidTypeTrial": ["character references", "denying"], "PreSentReport": ["data not available"], "AggFactSent": ["high risk of death", "discarded the knife", "armed with a knife", "planned or premeditated", "committed as part of a group"], "MitFactSent": ["age, no previous convictions and positive good character"], "VicImpactStatement": ["victim personal statements"], "Appellant": ["ATTORNEY GENERAL"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["sentence"], "AppealGround": ["unduly lenient.", "the judge erred by concluding that the sentence of 11 years reflected the multiple aggravating factors"], "SentGuideWhich": ["Unlawful Act Manslaughter Definitive Sentencing Guideline", "Sentencing Guideline"], "AppealOutcome": ["refuse leave for the Reference."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["unable to say that this is a sentence that was unduly lenient"]}
{"ConvCourtName": ["Crown Court At Kingston"], "ConvictPleaDate": ["2022-10-14"], "ConvictOffence": ["manslaughter"], "AcquitOffence": ["murder"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Kingston"], "Sentence": ["imprisonment for 11 years"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["22"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Yes-drinking"], "OffVicRelation": ["Acquaintance", "Stranger"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["post mortem", "emergency medical", "Digital"], "DefEvidTypeTrial": ["Offender of previous good character", "Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["high risk of death", "committed as part of a group", "planned or premeditated", "armed with a knife", "Disposal"], "MitFactSent": ["age, no previous convictions and positive good character"], "VicImpactStatement": ["Yes"], "Appellant": ["Attorney General"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["sentence"], "AppealGround": ["the judge erred by concluding that the sentence of 11 years reflected the multiple aggravating factors", "unduly lenient."], "SentGuideWhich": ["Unlawful Act Manslaughter Definitive Sentencing Guideline", "Sentencing Guideline"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["unable to say that this is a sentence that was unduly lenient"]}
202
Neutral Citation Number: [2009] EWCA Crim 549 Case No. 200805685/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 3rd March 2009 B e f o r e : SIR ANTHONY MAY (PRESIDENT OF THE QUEEN'S BENCH DIVISION) MRS JUSTICE RAFFERTY DBE MRS JUSTICE SWIFT DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v MICHAEL GREENWOOD - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr J Goodman appeared on behalf of the Appellant Mr J Durr appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. SIR ANTHONY MAY: It is quite frequently possible to pick holes in a judge's summing-up in a criminal jury trial. Judges, after all, have to do their summings up sometimes in hard pressed circumstances. Some may be of little consequence, others may be more important. The questions for this court in this appeal are whether criticisms of this kind of the summing-up in the case before us are made out and, if they are, whether they matter; or in the terms of the Criminal Appeal Act 1968 , the court has to judge whether in the light of such criticisms as are made out an appellant's convictions are or are not safe. 2. Michael Greenwood, the appellant, now aged 40, was tried in the Crown Court at Norwich before Mr Recorder Foster and a jury, who gave their verdicts on 26th September 2008. It was something of an untidy trial, with a background of the supply of drugs, but no one was charged in this trial with any drug offences. Mr Greenwood was charged eventually with four counts on an indictment, one count relating to an alleged event on 26th November 2007, the other three to events on the 3rd December 2007. All of these counts were said to have occurred at or in the vicinity of the address of a man called Carl Taylor. 3. On 26th November 2007 Mr Greenwood went with his son to Carl Taylor's address to remonstrate with him about alleged selling of crack cocaine to his son. Carl Taylor gave evidence that both Mr Greenwood and his son had assaulted him and hit him more than once and then left, taking some cannabis and a £10 note. Mr Greenwood said that he neither hit Mr Taylor, nor stole anything from him. The jury acquitted him on a count of assault by beating and this was count 1 of the four counts. 4. On 3rd December, according to Taylor, two people came to his front door. Taylor reckoned there would be trouble so he fired a warning blank shot from a gun. Someone kicked the glass in his front door. Mr Greenwood, according to Taylor, was one of those there. A piece of glass, he said, went into his arm from the broken front door. His evidence then was that Mr Greenwood, the appellant, wrestled with him for the key which was in the inside of the door. Mr Greenwood's hand was through the broken glass, he was unable to get hold of the key so he forced his way in. He took hold of Taylor's throat and threatened to kill him. Although he did not think it was deliberate, during the struggle the appellant pushed the glass from the broken window further into Taylor's arm and as result of this incident he had bleeding at the time and two scars on his arm. The larger scar was caused by the glass from the front door, the smaller one from where the appellant pushed his arm. He said at a rather later stage, so it appears in his evidence, that five men had been involved in this incident. One was a big man, not the appellant, Mr Greenwood, although he said this man did not touch him. The five men ran away afterwards. 5. Count 2 on the indictment charged Mr Greenwood with causing grievous bodily harm with intent. The Recorder directed an acquittal on this charge when Mr Taylor said that the pushing of the glass may not have been deliberate. 6. A reduced charge, count 4, had the same facts as unlawful wounding and of this count the jury unanimously convicted the appellant. His original case in a prepared statement in interview had been that he had not been involved in an incident at Taylor's address on 3rd December 2007 at all. His case in his defence case statement, which the jury knew of, was that he had been nearby Taylor's address when two people asked where Taylor lived. He pointed out where this was and the two men then set about to Taylor's address in the way described by prosecution witnesses. At one point he tried to pull a man he was afraid of off Taylor. He said that he thought that this was a drugs deal gone wrong. He had been too frightened to tell the police of this. 7. His evidence in the trial on this was, in summary, that on 3rd December 2007 he was in the vicinity of Taylor's address when two men, whom he did not know, asked him if he knew where they could get some cannabis. He walked with them and asked them if they could get him some as well. He pointed out Taylor's flat and sat and waited for them to get the cannabis. He waited for five to 10 minutes before deciding to go and see what was happening. He walked to Taylor's flat and was surprised to see that the door had been smashed. He entered the flat and saw a large man on top of Taylor, punching him. He tried to restrain this man. The man did not stop but told the appellant to go away, which he did. As we say, the jury convicted him of unlawful wounding in the matter of pushing the glass into Taylor's arm. 8. Another person at or in the vicinity of Taylor's address was Stuart Webb. On hearing Taylor's gun, he eventually at least shut himself in a bedroom which we were told was beyond the living area where the other incident was said to have taken place. His evidence was that two men came into the bedroom. One of them punched him twice to the left and right of his head. He subsequently identified his assailant with reasonable but not complete certainty as Mr Greenwood. Nothing now arises on the identification, the Recorder having given a Turnbull direction which is not criticised. The jury convicted Mr Greenwood unanimously of assault on Webb, and this was count 3 of the indictment. Mr Greenwood had denied this allegation of Webb. All he did that evening was to put his hand to try to restrain the large man from attacking Taylor. 9. The Recorder summed up the law fully and in a way which attracts no criticism. He also summarised the main lines of the evidence of the two complainants and of Mr Greenwood in a balanced way. He told the jury that they were the judges of fact, that he would summarise the evidence but not refer to all of it and that they must have due regard to evidence he did not refer to if they thought it important and disregard evidence he did refer to if they thought it unimportant. 10. The single ground of appeal against conviction on which the single judge gave leave is that the judge did not remind the jury, nor explain to them the significance of one or more significant conflicts or discrepancies between the evidence of Mr Taylor and that of Mr Webb respectively. Mr Goodman puts what may perhaps be regarded as the main or first inconsistency as follows: Mr Taylor gave evidence that only the defendant had attacked him and stated during the re-examination that "I was not attacked by anyone else other than Mr Greenwood." When asked if he was ever attacked by the big man, he stated: "That didn't happen, I ended up in the kitchen with Mr Greenwood." He further stated that the defendant had been with him and in his sight from the time he had entered the flat until he left. 11. Mr Webb gave evidence and stated that a man approximately 5 feet 8 or 5 feet 9 inches tall, late 20s early 30s, with tanned white skin and black short hair "barged the door open and was shouting at me. I heard him speak and I'm not 100 per cent sure but it sounded a bit Irishy. He hit me twice on the right side of my face and once to the left. He took Carl's mobile phone and threw it across the room." This man was said by the Crown to be the defendant. Webb further stated that he came out of the bedroom and could see Carl Taylor on the kitchen floor with someone on top of him. He was about 6 feet 2 inches tall with a skinhead haircut, he was punching Carl. Mr Taylor had described the second man as very tall, about 6 feet 4 and as big tall scary looking with a big build. Mr Taylor further stated that he saw this man push straight into the bedroom: "He did not punch or push me at all." 12. There are two, if not perhaps three inconsistencies between Taylor's evidence and that of Webb. Put shortly, Taylor said that he was only attacked by Mr Greenwood. Webb said he saw Taylor being attacked by a different very tall man. Taylor said there was such a man but he did not attack him physically. The defendant, Mr Greenwood's evidence was that he had tried to remove the large man from Mr Taylor and had been struck by the large man as he did so. This was, however, not the only discrepancy because Taylor's evidence was that it was the large man who went into the bedroom and that he, Taylor, had sight of the appellant, Mr Greenwood, throughout the episode. 13. The Recorder did not mention either of these discrepancies in the summing-up. But he did remind the jury of Mr Greenwood's own evidence to the effect that all he did was to restrain a large man who was attacking Mr Taylor. Mr Goodman refers to authorities including R v Barada [1990] 91 Cr App R 131 , R v R [2007] Crim LR 478 and R v Marashi [2001] EWCA Crim 2448 , to the effect that it is a judge's duty to indicate the nature of a significant conflict of evidence, or of inconsistencies of evidence and the logical consequence of such conflict or inconsistencies as part of his summing-up to the jury. 14. Perhaps there were, as Mr Durr suggests in this case, no very subtle logical consequences of these inconsistencies but there were significant discrepancies, such as we have described, between Webb's and Taylor's evidence. Webb's evidence was not logically inconsistent perhaps with the case that Mr Greenwood had wounded Taylor because he did not claim to have observed the early part of the intrusion. But there was this conflict as to whether anyone other than Mr Greenwood had attacked Taylor. Taylor's evidence that he had the appellant, Mr Greenwood, in his sight throughout was inconsistent with the prosecution case of the appellant's assault on Webb. 15. The Recorder did not, as is perhaps suggested, fail to put the defendant's case but he did omit reference to or explanation of these quite significant conflicts and discrepancies as we think he should have done. Mr Durr submits that in a fast moving scene inconsistencies such as these may not have been as significant as they now appear. He emphasises the general directions which the Recorder properly gave to the jury to which we have alluded. Mr Goodman, for his part, submits not only that the Recorder should have referred to and emphasised by way of explanation these inconsistencies but that the core of the inconsistencies went to support the appellant's own account, that all he had done that evening was to go to try to restrain a large man who was attacking Mr Taylor. 16. We have to judge, in these circumstances, whether the summing-up, not having contained what, in our judgment, it should have done, the convictions were nevertheless safe. In our judgment, they were not safe and for these reasons the appeal against conviction is allowed. 17. MR GOODMAN: A retrial I imagine is in the Crown's mind. 18. SIR ANTHONY MAY: Mr Durr what about a retrial? 19. MR DURR: We would seek a retrial on the two remaining allegations. There having been nothing deficient about the way the Crown had presented the case. 20. SIR ANTHONY MAY: Do you want to say anything about that? 21. MR GOODMAN: Certainly I submit it is not in the public interest that a retrial take place. This is a matter that was heard in 2007. Mr Greenwood has been certainly in prison since November but, of course, I am in the hands of the Crown as to their next move. Given the indication that I have now heard from Mr Durr, I would seek immediate bail. Mr Greenwood was on bail for 10 months pending his trial. 22. SIR ANTHONY MAY: Please remind us, he was sentenced on what date? 23. MR GOODMAN: The 24th October, yes I am grateful. But in fact had been -- although he had been on bail throughout the proceedings, on the date of conviction, which was some 1 month earlier in September he was remanded in custody from that day forth. 24. SIR ANTHONY MAY: He had 28 days on remand I think. 25. MR GOODMAN: Which was in fact the period between conviction and sentence. 26. SIR ANTHONY MAY: He has been in custody for upwards of 4 months plus the 28 days. 27. MR GOODMAN: Yes. 28. SIR ANTHONY MAY: Do you want to say any more? 29. MR GOODMAN: No thank you. (The Bench Conferred) 30. SIR ANTHONY MAY: The appeal is allowed. The conviction is quashed. After due consideration, we do not direct a retrial. The main reason for reaching that conclusion is because the appellant has spent the equivalent of something of the order of 10 months in custody already. Thank you very much.
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{"ConvCourtName": ["Crown Court At Norwich"], "ConvictPleaDate": ["2008-09-26"], "ConvictOffence": ["unlawful wounding"], "AcquitOffence": ["causing grievous bodily harm with intent", "assault by beating"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["28 days on remand"], "SentCourtName": ["Crown Court At Norwich"], "Sentence": ["Don't know"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Stranger"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["prosecution witnesses", "Victim testimony"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against conviction"], "AppealGround": ["criticisms of this kind of the summing-up"], "SentGuideWhich": ["Criminal Appeal Act 1968"], "AppealOutcome": ["data not available"], "ReasonQuashConv": ["the summing-up, not having contained what, in our judgment, it should have done"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
323
Neutral Citation Number: [2019] EWCA Crim 878 Case No: 201705222 B2 & 201705223 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT CANTERBURY Recorder Dias QC T20160470 Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/05/2019 Before: THE RIGHT HONOURABLE THE LORD BURNETT OF MALDON LORD CHIEF JUSTICE OF ENGLAND AND WALES THE HONOURABLE MR JUSTICE LAVENDER and SIR JOHN ROYCE - - - - - - - - - - - - - - - - - - - - - Between: SCOTT JAMES GOLDFINCH Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Liam Loughlin (instructed by Lawtons Solicitors ) for the Appellant Mr Walton Hornsby (instructed by Crown Prosecution Service ) for the Respondent Hearing date: 9 May 2019 - - - - - - - - - - - - - - - - - - - - - Approved Judgment The Lord Burnett of Maldon CJ: 1. On 23 June 2017 the applicant was convicted at Canterbury Crown Court of indecent assault contrary to section 15 of the Sexual Offences Act 1956 . On 28 July 2017 he was sentenced to six years and six months’ imprisonment. His application for leave to appeal against conviction was referred to the full court by the single judge. At the end of the hearing we announced our decision to dismiss the application for leave to appeal against conviction (and the associated application to extend time). These are our reasons for doing so. The single judge refused leave to appeal against sentence. That application was renewed before us. We granted leave to appeal against sentence with the necessary extension of time. We heard argument on the substantive sentence appeal. We allow the appeal against sentence, quash the sentence of imprisonment of six years and six months and substitute a sentence of three years’ imprisonment. 2. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence which protect the identity of the victim and his sister. A second count on the indictment alleged gross indecency with respect to her. On that count the appellant was acquitted. The Facts in Outline 3. The events in question occurred in 1996 when the appellant was 16. His victim was four years old. He was born in July 1992. The victim’s mother was in a relationship with a half-brother of the appellant. The victim had a sister who was about eight. Both the appellant and another brother regularly acted as babysitters for the children. 4. On 17 September 1996 the victim’s mother reported to the police that the boy had told them he had been sexually abused by the appellant. He had suddenly announced when sitting in the car that the appellant “made me suck his willy”. When questioned by his mother he had said that it happened in the bathroom when the appellant was babysitting and that his sister came in whilst it was happening and said, “That’s gross”. A third sibling was in the flat but did not see what happened. He also said another person was present, whom he named as the appellant’s brother. When the mother spoke to her daughter she just burst into tears. 5. The victim was video interviewed. In that interview he said he did not like the appellant and that he had been violent with him, but he made no allegation of sexual abuse. After the interview was over his mother asked him, in the presence of two police officers, why he had not told the police in the interview what had happened and he replied, “You mean he sucked my willy?” The appellant was interviewed and denied any wrongdoing. This outcome was conveyed to the victim’s mother who was told that the case would not be going to court. She had a discussion with her partner about this which was overheard by the victim’s sister, who then said that her brother’s account was true. She added that the appellant had made her suck his willy too. A fortnight later she was interviewed. She was unable to say what happened but instead wrote it down. In that account she alleged that the appellant had made her put her hand on his penis. The appellant was again interviewed. He denied everything. On 27 November 1996 he was given written notice that no further action was being taken. 6. The account we have set out is taken from a summary document, known as “lotus notes”, retained electronically by the police. It is apparent that at a time very close to the alleged incidents both the victim and his sister gave inconsistent accounts of what the appellant is said to have done. This document was read to the jury and copies given to them. The written account of the victim’s sister was also exhibited and provided to the jury. 7. The statement of a fellow pupil at school, who was a close friend of the victim, was read to the jury. He explained that when he was 14 or 15, the victim had told him that the appellant had sexually abused both him and his sister. They talked about it on more than one occasion. The statement says that “we decided to pay [the appellant] back by cycling round his house and throwing eggs at it”. That was on 11 March 2008. Another statement was read from a girl who was close to the victim when she was 13. She explained that on New Year’s Eve in 2008 he told about being sexually abused when he was young. He did not go into detail but was emotional about it, his voice shaking. She had not seen him since early 2009. Of the content of the conversation, she could remember little detail. She added, “I recall him mentioning his step-father and this may have been the person who abused him, but I cannot be confident about it 8. The victim visited his local police station on 15 March 2015. He was then 22 years old and 24 at the time of the trial. He wanted the investigation reopened. His evidence was recorded on video and in due course played to the jury. The appellant was interviewed and maintained that the allegations of both the victim and his sister were all false. “They are now, and they were 19 years ago … There is no truth in them whatsoever.” 9. Agreed facts read to the jury (and left with them in writing) confirmed the date of the egg-throwing incident. The transcript of the hearings shows that the jury were invited to amend the written version with which we have been provided, including by recording the victim’s date of birth as July 1992 and not December 1992 as originally recorded. The Lotus notes were read at the same time. The core features of the victim’s 1996 interview were set out in the agreed facts: “4. [The victim] in his interview said that he didn’t like [the appellant], and that when he babysat used to slam him on the bed and against the wall, and against the ceiling. He also didn’t like [the brother] and that [he] had described physical roughness. He made no disclosures of sexual abuse. 5. He was asked “When [the appellant] babysat were you ever in the bathroom together? He replied “No. “Did [the appellant] make you do something to him? A: No. At the end of the interview (and outside the interview room), he was asked by his mother why he hadn’t told the lady about [the appellant], to which he replied, “You mean he sucked my willy”: this comment was made in the presence of two interviewing officers.” 10. The officer in the case explained the origin of the notes on the Lotus log. The appellant gave evidence. He robustly denied that he had sexually abused either child. In cross-examination he was asked whether there was any explanation he could give for the accusations made by the children, for example that they did not get on with him. He could not and did not say that he believed that they had been put up to it. He explained the other people he knew to be babysitters and suggested that the children may have been mistaken about who was responsible. The Conviction Application 11. Mr Loughlin, who now appears on behalf of the appellant, submits that “there was a core failing” by trial counsel in failing to cross-examine the victim on the difference between his two accounts in the Autumn of 1996 that (a) the appellant had made him suck the appellant’s penis; and (b) the appellant had sucked the victim’s penis. Nor was he cross-examined about the detail of his initial account that his sister witnessed the incident. He also submits that counsel made a fundamental mistake in accepting, when cross examining the victim, that he might have been abused, albeit not by the appellant. What is more, it was suggested, contrary to previous counsel’s recollection, that the strategy of raising the possibility that someone else had abused the victim was not discussed with the appellant. In the result, he submits that the conviction is unsafe. 12. The correct approach to appeals based upon the suggestion of incompetence of trial counsel was stated by Buxton LJ in R v Day [2003] EWCA Crim 1060 at [15]: "While incompetent representation is always to be deplored; is an understandable source of justified complaint by litigants and their families; and may expose the lawyers concerned to professional sanctions; it cannot in itself form a ground of appeal or a reason why a conviction should be found to be unsafe. We accept that, following the decision of this court in Thakrar [2001] EWCA Crim 1096, the test is indeed the single test of safety, and that the court no longer has to concern itself with intermediate questions such as whether the advocacy has been flagrantly incompetent. But in order to establish lack of safety in an incompetence case the appellant has to go beyond the incompetence and show that the incompetence led to identifiable errors or irregularities in the trial, which themselves rendered the process unfair or unsafe." 13. It is the responsibility of the advocate to make forensic decisions and to devise strategy. Counsel is not merely the defendant’s mouthpiece. See paragraphs [107] and [108] of R v Farooqi [2013] EWCA Crim 1649 ; [2014] 1 Cr. App. R. 8 . 14. Privilege was waived to enable trial counsel to respond to the criticisms in the grounds of appeal. He accepted that he did not cross examine the victim on the inconsistency about whether it was he who sucked the appellant’s penis or vice versa. But the point was before the jury. He took the view that the jury was likely to believe that the victim was abused by someone. That being the case it was an obvious course to investigate who that might have been. He investigated the possibility that it may have been the appellant’s brother because the victim had said originally that he was present at the time. He also told the police that the brother had been horrible to him. Counsel investigated with the victim the possibility that it was his mother’s partner who was responsible because of the recollection, albeit imperfect, of the victim’s 13 year old girlfriend that he had given her that impression. 15. We do not agree that it was incompetent on the part of the counsel to open his crossexamination of the victim with the observation that it was accepted that he might have been abused. The incontrovertible evidence was that as a four year old boy he had stated that the appellant had made him suck his penis. He gave his mother a clear account of where, when and in what circumstances it was said to have happened. Later he gave a different but closely allied account of abuse, after the police interview. There was no evidence of the boy living in an inappropriately sexualised environment. We do not forget that these events occurred long before the general advent of the internet and the ubiquity of pornography in some homes. Children of this age do not know about these things unless they have seen or heard about them. There was clear evidence that about ten years later the victim explained to two separate friends that he had been sexually abused. The appellant denied the offence but had shied away from his initial reaction that the children had been put up to it either by their mother or his own step-brother. There was no evidence which provided support for such an explanation. The background evidence showed that this was an extended family living and working closely together. The evidence that the appellant could give was that he did not abuse either child. But the inevitable question arose, in the event that the jury was sure that one or both of them was abused, then who did it? 16. Mr Loughlin accepts that had counsel put to the victim that his original account was a fabrication he would have received a straightforward denial. Whilst different counsel may have pressed the possibility that nothing had ever happened to this victim, we do not think that counsel can be criticised for the tactical decision he took. Moreover, the stance taken does not undermine the conviction. 17. The same, in our view, can be said of his failure to put to the 24 year old witness before him the inconsistency in the two accounts he gave when he was four. The inconsistency was before the jury in the Lotus notes and had been read to them. But it is also clear that there would have been no point in asking him to account for the contradiction because he could not remember what he said at the time. The much more striking contradiction in the victim’s evidence was his denial when interviewed that anything had happened, as summarised in the agreed facts set out above. Counsel put to him the contradiction between his evidence that the incident occurred when nobody else was in the flat, and his account at the time that his siblings and the appellant’s brother were present. He answered that he could not remember saying that. He could not remember the appellant or his brother at the time working in his mother’s fast food business below the flat. He remembered that both had babysat. He had no recollection of being interviewed by the police when he was four. Counsel then asked, “And it goes without saying that if you don’t remember the interview, you don’t remember what you said?” He answered, “No”. The victim had no current recollection of either the appellant or his brother being violent towards him. But when asked about what he had said at the time he simply repeated that he could not remember the exchanges at all. In his adult interview he had in fact said that he did not remember going to the police. 18. There is, to our minds, an air of unreality about questioning a 24 year old man about the detail of a conversation he had 20 years before. But, whatever the general position, it is clear that this victim had no recollection of his visit to the police and no evidence could have been adduced relating to the contradiction. 19. Counsel attended the hearing of the application before us ready, if necessary, to give evidence about whether he discussed the broad tactical approach of exploring whether others could have been responsible for any abuse which occurred. Neither party pressed for that to occur. In our view they were right not to do so because the answer to the question would not have advanced the application one way or another. The decision was for counsel and there was no requirement to obtain the appellant’s approval in advance. 20. None of the criticisms advanced of counsel demonstrates incompetence on his part, still less that the conviction is arguably unsafe. The Sentence Appeal 21. The proper approach to sentencing for historical sexual offences, including of adults who committed offences when they were children, was authoritatively reviewed in R v Forbes and others [2016] EWCA Crim 1388 ; [2016] 2 Cr. App. R. (S) 44; [2017] 1 WLR 53 . This court repeated the principles articulated in R v H [2011] EWCA Crim 2753 , [2102] 1 WLR 1416 , [2012] 2 Cr App R (S) 21 which were subsequently codified by the Sentencing Council in annex B of the Definitive Guideline on Sexual Offences published in 2013. That codification was approved save in one respect. Annex B, at point 9, had suggested that youth and immaturity at the time of committing the offence may be regarded as personal mitigation. Lord Thomas of Cymgiedd CJ, giving the judgment of the court in Forbes , explained that age and immaturity go to culpability: see paragraph [20]. 22. In sentencing an adult for an offence committed when he was a child the court should have regard to, alternatively expressed as making a measured reference to, the current adult guideline for the broadly equivalent modern offence, adjust it to reflect any lower maximum sentence available and remember that it is dealing with the culpability of a young person. 23. In sentencing the appellant, the recorder recognised that the statutory maximum sentence for the offence of which he had been convicted was 10 years’ imprisonment. He referred to the victim personal statement which set out the severe adverse consequences of the offending on the victim, which continue. He noted that the Guidelines dealing with offending against children take into account the inevitable serious impact upon them. But he considered that the impact in this case was exceptionally severe. The recorder noted the appellant’s positive good character. By contrast the victim was very young and there was a breach of trust. Importantly, as it seems to us, the recorder explicitly recognised that the appellant was not a predatory offender but “this was a case of sexual experimentation by a teenage boy”. 24. The recorder had regard to the Guideline for equivalent offences under the Sexual Offences Act 2003 . Forcing a penis into a young child’s mouth would be rape of a child under 13, contrary to section 5 of the 2003 Act . The evidence of force or coercion in this case was at the bottom end of the scale and so another offence which might be in play for comparative purposes would be causing or inciting a child under 13 to engage in sexual activity contrary to section 8 of the 2003 Act . The recorder referred to a starting point of 11 years custody (with a range of seven to 15 years) by reference to the Guideline. That appears to be a reference to a category 2A offence for assault of a child under 13 by penetration, contrary to section 6 of the 2003 Act . Howsoever the conduct had been charged, an adult convicted of a single recent offence would very likely have faced a sentence of ten years or more. The maximum available for these offences is life imprisonment. 25. It is always very difficult to sentence in historic sex cases and all the more so when the offender before the court is a mature adult who committed the offence when a child. With respect, we consider that in this case the recorder failed to attach sufficient weight to two significant factors. First, that although the equivalent offences under the 2003 Act carry a maximum sentence of life imprisonment the maximum available for the offence for which this appellant was convicted was 10 years’ imprisonment. Secondly, that the culpability in this case was that of a 16 year old boy whose single offence was the result of teenage experimentation. Each of these features individually would result in a significant reduction from any notional starting point for a recent adult offender. Applying the principles articulated in the cases of Forbes and H and the Guideline and its annex, and bearing in mind the mitigation referred to by the recorder, our conclusion is that the proper sentence in this case should be one of three years’ imprisonment. 26. We quash the sentence of six and half years’ imprisonment and substitute one of three years. The ancillary orders remain unaffected.
{"ConvCourtName": ["Canterbury Crown Court"], "ConvictPleaDate": ["23 June 2017"], "ConvictOffence": ["indecent assault"], "AcquitOffence": ["gross indecency"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Canterbury Crown Court"], "Sentence": ["six years and six months’ imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["His"], "OffAgeOffence": ["16"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["identity of the victim"], "VicNum": ["the victim"], "VicSex": ["He"], "VicAgeOffence": ["four"], "VicJobOffence": ["victim was four years old."], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Lotus notes", "victim was video interviewed", "witness"], "DefEvidTypeTrial": ["denied any wrongdoing."], "PreSentReport": ["data not available"], "AggFactSent": ["impact in this case was exceptionally severe"], "MitFactSent": ["young", "breach of trust"], "VicImpactStatement": ["victim personal statement"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["leave to appeal against conviction (and the associated application to extend time)", "leave to appeal against sentence"], "AppealGround": ["“there was a core failing” by trial counsel in failing to cross-examine the victim on the difference between his two accounts", "conviction is unsafe"], "SentGuideWhich": ["Sentencing Council in annex B of the Definitive Guideline on Sexual Offences published in 2013", "section 15 of the Sexual Offences Act 1956", "Sexual Offences (Amendment) Act 1992"], "AppealOutcome": ["We quash the sentence of six and half years’ imprisonment and substitute one of three years. The ancillary orders remain unaffected.", "dismiss the application for leave to appeal against conviction (and the associated application to extend time)"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["Applying the principles articulated in the cases of Forbes and H and the Guideline and its annex, and bearing in mind the mitigation referred to by the recorder"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["None of the criticisms advanced of counsel demonstrates incompetence on his part"]}
{"ConvCourtName": ["Canterbury Crown Court"], "ConvictPleaDate": ["2017-06-23"], "ConvictOffence": ["indecent assault"], "AcquitOffence": ["gross indecency"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Canterbury Crown Court"], "Sentence": ["six years and six months’ imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["16"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Don't know"], "VictimType": ["Individual person"], "VicNum": ["1 of 1"], "VicSex": ["All Male"], "VicAgeOffence": ["4"], "VicJobOffence": ["Child"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["witness", "Documentation", "Victim testimony"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["Psychological impact"], "MitFactSent": ["breach of trust", "young"], "VicImpactStatement": ["Yes"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Other (e.g., application for extension of time to appeal)", "Other (e.g., application for extension of time to appeal)"], "AppealGround": ["“there was a core failing” by trial counsel in failing to cross-examine the victim on the difference between his two accounts", "conviction is unsafe"], "SentGuideWhich": ["Sentencing Council in annex B of the Definitive Guideline on Sexual Offences published in 2013", "Sexual Offences (Amendment) Act 1992", "section 15 of the Sexual Offences Act 1956"], "AppealOutcome": ["Dismissed-Failed-Refused", "Allowed&Sentence Replaced by More Lenient Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["Applying the principles articulated in the cases of Forbes and H and the Guideline and its annex, and bearing in mind the mitigation referred to by the recorder"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["None of the criticisms advanced of counsel demonstrates incompetence on his part"]}
246
Case No: 201004308C2 Neutral Citation Number: [2011] EWCA Crim 1871 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SNARESBROOK HHJ JOSEPH QC T20090594 Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/07/2011 Before : LORD JUSTICE HOOPER MR JUSTICE STADLEN and MR JUSTICE SWEENEY - - - - - - - - - - - - - - - - - - - - - Between : MOHAMMED ENAMUL HAQUE Appellant - and - THE CROWN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss B. Jung appeared for the Appellant. Ms. S. Fawcett appeared for the Respondent. Hearing date: 14 th June 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Hooper: 1. During the hearing we announced that leave to appeal on two grounds was refused and that we granted leave to appeal on a third ground, which we shall for convenience call the Curtis ground . Having told counsel that we granted leave to appeal on this ground, counsel adopted the arguments which they had put forward during the hearing and told us that they did not wish to add anything. We now give our conclusion on the Curtis ground and brief reasons for refusing leave to appeal on the two other grounds. 2. The appellant was convicted at Snaresbrook Crown Court on 25 th May 2010 by a jury of an offence contrary to section 4(1) of the Protection from Harassment Act 1997 . The judge was HHJ Wendy Joseph. 3. The statement of offence read: Putting a person in fear of violence by harassment contrary to section 4(1) of the Protection from Harassment Act 1997 . 4. Although the statement of offence referred to harassment, section 4 is headed “Putting people in fear of violence”. 5. The particulars read: Mohammed Haque between the 3 rd day of January 2009 and the 12 th day of January 2009 caused Mohammed Nazrul Islam to fear that violence would be used against him by his course of conduct which he knew or ought to have known would cause fear of violence to Mohammed Nazrul Islam on each occasion in that between the 3 rd day of January 2009 and the 12 th day of January 2009 you sent threatening emails and letters. 6. The particulars follow the precise language of sub-section (1). Section 4 reads: (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. (3) It is a defence for a person charged with an offence under this section to show that— (a) his course of conduct was pursued for the purpose of preventing or detecting crime, (b) his course of conduct was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or (c) the pursuit of his course of conduct was reasonable for the protection of himself or another or for the protection of his or another's property. (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) ... 7. It was submitted by Miss Jung, who did not appear for the appellant at trial, that the particulars should have read in order to reflect the decision in Curtis [2010] EWCA Crim 123; [2010] 1 Cr. App. R. 31 : Mohammed Haque between the 3 rd day of January 2009 and the 12 th day of January 2009 caused Mohammed Nazrul Islam to fear that violence would be used against him by his course of conduct which amounted to harassment and which he knew or ought to have known would cause fear of violence to Mohammed Nazrul Islam on each occasion in that between the 3 rd day of January 2009 and the 12 th day of January 2009 [he] sent threatening emails and letters. The facts 8. The complainant (Mohammed Nazrul Islam) was the appellant’s older brother. Both resided in the UK. The complainant had six children including a son named Shahnoor (known as Boyan). The appellant had one son called Ethesham and had full time care of six nieces and nephews, including a niece called Shahida Aziz and a nephew called Yasin Aziz. In 2000 the mother of the complainant and of the appellant passed away and their father moved back to Bangladesh, taking their sister, Roshonara Begum (known as Yahuffu or Hufu) with him. Yahuffu, as we shall call her, is now in her mid-fifties. She suffers from chronic schizophrenia and has the mental age of a young child. She requires constant care. The father remarried a woman named Somorun Nessa, who had a young daughter called Lucky from a previous marriage. The father, Yahuffu, his wife Somorun Nessa and Lucky lived together in the family ancestral home (known as the Bari) in Banigazi, Bangladesh. The father passed away in 2006. Somorun Nessa and Lucky remained in the Bari and were responsible for Yahuffu’s care. The complainant was also responsible for Yahuffu’s care and he visited from the UK on a regular basis. In December 2008 the appellant and the complainant travelled separately to the Bari. Prior to meeting in Bangladesh on that trip they had not seen or spoken to each other for 7 to 8 years. 9. On 4 th January 2009, both the appellant and the complainant returned to the UK. 10. It was the prosecution’s case that in the days following 4 th January the appellant was responsible for sending two letters, two emails and a number of text messages venting his anger which caused the complainant to fear that violence would be used against him. 11. The defence case was that the complainant was not put in fear of violence and had lied when he said that he was. The appellant also relied upon the statutory defence that his course of conduct was reasonable. The appellant was acting to protect his sister. Yahuffu was mentally disabled and required constant care. The complainant, so the appellant claimed, had been complicit in the mistreatment and abuse of Yahuffu by Somoron Nessa and Lucky. The appellant’s reaction was reasonable in the circumstances to prevent Yahuffu from coming to any further harm. The appellant also feared that the complainant would return to the Bangladesh in order to seize control of the estate and attempt to sell parts or all of the property illegally. If the complainant succeeded in doing this, Yahuffu, so the appellant claimed, would have effectively become homeless. 12. The complainant gave evidence (from behind a screen and via an interpreter) and said that by the time his mother died the appellant was already estranged from the family. The appellant made no contact or effort to do anything following their mother’s death. Their father took Yahuffu to Bangladesh to live at the Bari. In 2006 their father died and the appellant again made no contact. By 2006 the visa allowing Yahuffu to return to the UK had expired. The complainant had problems arranging a move for her but had been in touch with the embassy. The appellant played no part in the arrangements for her. He did not visit, telephone or have any other contact. Thereafter Yahuffu was cared for in the Bari by Somorun Nessa and Lucky with the complainant’s support. The complainant sent money and visited once a year. On occasion, he had visited two or three times in the same year. The appellant had a feud with his parents which also involved the complainant and had split the family causing some members to side with the appellant (particularly the nieces and nephews) and some with the complainant. 13. In December 2008 the complainant visited his sister and was very surprised when the appellant arrived at the Bari three hours after he did. The appellant had not been there for over thirty years. He had not had any contact with the appellant for ten years. Relatives told the complainant that the appellant was on his way to kill him. When the appellant arrived he was very critical of Yahuffu’s care even though, said the complainant, she was being properly cared for. She was not being mistreated. She had a bed and he sent money for her to be properly fed. She had not been hit by Lucky. He believed that the appellant was using Yahuffu’s care as an excuse to drive him out and seize the Bari. The complainant was quite satisfied that Yahuffu was being properly cared for. That night people came to the main gate and into his room in the middle of the night. He was so frightened that he left the Bari immediately and made his way back to the UK. Upon his return to the UK he reported the threats to the police. He was told they had no jurisdiction over events that had occurred in Bangladesh. 14. On the 4 th January he received the appellant’s first letter which, being unsigned, the complainant asked the appellant to sign. By the time the complainant received this letter he had already received some telephone calls from the appellant. In the first telephone call the appellant swore at him, abused him and threatened to kill him. He received another two letters. The second letter arrived on or around the 7 th January 2009. He then received a third letter which made him even more frightened. The appellant also sent a number of text messages and emails to the appellant and to Shahnoor Islam (Boyan). On the 10 th January 2009 he received a number of text messages. He said that he did not know how to handle what was happening. He said that the cumulative effect of the telephone calls, the letters and the emails, combined with the belief that his nephews were looking for him to attack him, made him very scared that violence would be used against him. People came to his door looking for him and his wife. They could not find him because he went into hiding. Upon receiving the last text message he telephoned the police at 1:28am on the 11 th January 2009. The police later came to his house. 15. The thrust of the communications between the appellant and the complainant related to the complainant’s alleged treatment of Yahuffu. To prove the charge under section 4(1) the prosecution relied particularly upon the following passages in the communications: …. if you have any or all of the above and you do not hand them over to me in the next seven days I will commence a systematic onslaught on you the like of which will make you shit your pants…” (6 January) … I swear on my son, no matter how many pigs you call I will come and do some serious damage to you. If I don’t find you I will look for your fake Muslim son…I don’t want to kill you as it is too good for you. I want to extract each and every teeth you have left one at a time. Now here’s the payoff, I will not be using any anaesthetic. You fucking cunt… … One more thing so long as Sis is or will be in the Bari you and your children are not allowed to enter the compound. If they do I will break your fucking legs… (10 January) … I swear on my son, no matter how many pigs you call I will come and do some serious damage to you. If I don’t find you I will look for your fake Muslim son… (10 January) 16. In cross-examination the complainant denied that he was sick of his sister. He would have been happier if someone else visited occasionally instead of him. When the appellant first telephoned him he swore and threatened to kill him. He was scared. He called the police because he believed the threats. He thought that the letter (dated 4 th January2009) came after the first call. He said that the allegations made in the letter dated 4 th January 2009 were untrue. As far as he was aware Yahuffu was properly cared for. He had wanted the appellant to sign the 4 th January letter. The complainant felt that he was in danger and believed the appellant was violent and he believed the threats that his life was in danger. He called the police and knew that they had arrested the appellant and warned him about his harassment. There was no abuse of Yahuffu and the appellant was just using this as an excuse. The complainant was not ashamed of his sister and had great sympathy for her. The appellant was demanding Yahuffu’s passport but he did not have it. As far as he was aware it was still in the Bari. The complainant thought that it would be better if Yahuffu came to the UK. He had tried to arrange this with the Embassy but his father was anxious that she stayed with him in Bangladesh. By the time his father died Yahuffu’s visa had expired, so he arranged for her to be cared for and he visited her. Her other brothers and sisters also visited her. The appellant never visited or telephoned. He was not intending to provoke the appellant. His aim was the reverse. He was scared and wanted to stay away from the appellant. The appellant’s threats were not a joke. The complainant wanted to calm the appellant down but the appellant swore that he would ‘finish him off’ and so the complainant went to the police. 17. Boyan, the complainant’s son, gave evidence which it is not necessary to set out. He was cross-examined. 18. PC Charlene Deacon gave evidence and said that on the 5 th January 2009 she interviewed the appellant. He appeared to be distraught and concerned about his sister in Bangladesh. She considered the offence of harassment but this required a course of conduct. Having discussed it with a senior colleague, it was concluded that the matter could be resolved without going through the courts. In the presence of the custody sergeant and another police officer, she advised the appellant to make no further contact with the complainant and to go to a solicitor if necessary. She advised that any further incidents could lead to an investigation of harassment. 19. PC Amelie Bartlett gave evidence and said that she and PC Peveller went to the complainant’s address at 10:45am on the 11 th January 2009. They saw letters, emails and text messages. As the appellant had already been warned about his conduct on the 5 th January 2009, they went to his home address to arrest him. The appellant did not seem surprised. He said that the text messages were actually sent from his computer. The appellant was arrested for harassment. On the way to the police station the appellant said, “I’ve stopped now. I sent the last email yesterday.” The appellant was found to be in possession of a copy of one of the letters sent to the complainant and a letter in sealed envelope that was addressed to the complainant but that had not been sent. 20. Evidence was given that the appellant was interviewed and gave an account consistent with his later evidence. The appellant was offered a caution but refused and was subsequently charged. 21. The appellant gave evidence and said that he was divorced and had one child. He worked as a documentary maker. In 2003 he took over the care of his six nieces and nephews. The complainant was two years older than him. They both lived in London. Their mother died several years earlier and their father then took their disabled sister to Bangladesh. The complainant brought Yahuffu to the UK in 2002 and retuned her to his father on 2003. When she was in the UK Yahuffu was diagnosed with schizophrenia, she had the mental age of a young child. His father had remarried. 22. He went to the Bari on the 17 th December 2009 to see Yahuffu. It was his first trip in thirty years. He had not seen Yahuffu for many years. He described the Bari as dilapidated, run down, dingy and dirty. He had not expected it to be so bad. He arrived at 12:45pm and saw the complainant briefly. He had not seen the complainant for many years. The appellant saw Yahuffu and she looked white and frail. He assumed that she was being cared for but felt guilty that he had not seen her for so long. He was very concerned about her physical condition. The appellant had heard from relatives that Yahuffu was being physically abused by his father’s second wife. His trip lasted ten days. Upon his return to the UK he was concerned about how he could get Yahuffu back to the UK so that he and his nephews and nieces could care for her. Her right to re-enter had expired as she had lived overseas for more then two years, he did not know her date of birth and did not have any information abut her. He knew that she had hospital records in the UK and that Tower Hamlets and the police had been involved with her, but thought that the first thing was to get her date of birth and her passport. 23. He decided to communicate with the appellant and sent the letter of the 4 th January 2009. After receiving the letter Boyan telephoned the appellant, and kept on telephoning him, to get him to sign the letter. The appellant said that he would sign the letter in front of police officers. The appellant went to the police station but the police were very bemused. The appellant could not work out how to get his sister to the UK and how to get her passport and date of birth. The complainant was deliberately obstructing him as he did not want anyone to find out how she was stuck in Bangladesh. He thought that the complainant was reluctant to hand over the details for Yahuffu because he was claiming disability allowance in her name. The appellant sent the letter to the complainant because he wanted to care for Yahuffu in the UK or Bangladesh. The appellant did not threaten to kill him whilst on the phone but he did scream at him and swear. 24. PC Deacon spoke to the appellant on the 5 th January 2009. The appellant was taken to the police station and kept there for twelve hours. The police told him that they were taking no further action and suggested that he spoke to a solicitor. He was not warned about his future conduct or that it could amount to harassment if he did it again. He was released for the police station and later he wrote another letter. He sent the letter by recorded delivery. He had been finding it difficult to confirm Yahuffu’s date of birth and he believed that the complainant would know it. He asked Yasin Aziz to ask Boyan for it. Boyan had said that they had decided not to tell him. This made the appellant frustrated, not angry. He thought the complainant wanted him to react and so he decided to write the second letter. The appellant wrote another letter but did not know if it was delivered. The appellant did not believe that the complainant was scared of him. When the appellant referred to his rearranging his face he was simply expressing anger and frustration. He regarded the text messages sent by the complainant as provocative. 25. In cross-examination he said that his sister Salma had visited Bangladesh twice and told him that the complainant was visiting frequently and living with their father’s second wife. Salma’s last visit was in July 2008 and she told him that he should go and see Yahuffu. He went in December 2009 having seen a photograph of Yahuffu. He accepted that the complainant was Yahuffu’s primary carer and that the complainant sent money out but the money, said the appellant, was not for her care. 26. Shahida Aziz, the appellant’s niece, gave evidence and said that she had lived with the appellant all of her life. There was bad feeling between the appellant and the complainant. She did not believe that the complainant would ever threaten violence. She said that the appellant was very distressed when he came back from Bangladesh and could think of nothing but his sister. She had seen the first letter before it went to the complainant. She called her uncle the complainant ‘weak and pathetic’. She insisted that the appellant threatened no violence. She said that the complainant was ‘playing the victim’. On the 9 th January 2009 she had been at the appellant’s house with other family members as it was the appellant’s birthday. She telephoned the complainant. His tone was very quiet. He said that he was on his way to the Mosque and that he would call her back. He then sent her a number of text messages. She replied to the complainant. She told him that he was lying and questioned what he had said. She showed the text messages to the appellant and other family members. She regarded the text messages sent by the complainant to her as provocative. The Protection from Harassment Act 1997 27. Section 1 of the Act headed “Prohibition of harassment” reads, as amended: (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. (1A) A person must not pursue a course of conduct— (a) which involves harassment of two or more persons, and (b) which he knows or ought to know involves harassment of those persons, and (c) by which he intends to persuade any person (whether or not one of those mentioned above)— (i) not to do something that he is entitled or required to do, or (ii) to do something that he is not under any obligation to do. (2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other. (3) Subsection (1) or (1A) does not apply to a course of conduct if the person who pursued it shows— (a) that it was pursued for the purpose of preventing or detecting crime, (b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or (c) that in the particular circumstances the pursuit of the course of conduct was reasonable. 28. Section 2 creates the 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 29. Section 3 creates a civil remedy. It is important in the appeal because cases which we shall have to look at later in the judgment were civil not criminal cases. Section 3(1) reads: (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. Section 3 also provides that is an offence to breach an injunction granted under section 2. 30. We have already set out section 4 , headed, as we have said: “Putting people in fear of violence”. The word “harassment” does not appear in section 4 . 31. Section 5(1) and (2) provide: (1) A court sentencing or otherwise dealing with a person (“the defendant”) convicted of an offence may (as well as sentencing him or dealing with him in any other way) make an order under this section. (2) The order may, for the purpose of protecting the victim or victims 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. 32. Section 7 reads: (1) This section applies for the interpretation of sections 1 to 5A. (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, or (b) in the case of conduct in relation to two or more persons (see section 1(1A)), conduct on at least one occasion in relation to each of those persons. (3A) A person's conduct on any occasion shall be taken, if aided, abetted, counselled or procured by another— (a) to be conduct on that occasion of the other (as well as conduct of the person whose conduct it is); and (b) to be conduct in relation to which the other's knowledge and purpose, and what he ought to have known, are the same as they were in relation to what was contemplated or reasonably foreseeable at the time of the aiding, abetting, counselling or procuring. (4) “Conduct” includes speech. (5) References to a person, in the context of the harassment of a person, are references to a person who is an individual. Ingredients of the offence against section 4(1) charged against the appellant 33. There is no dispute that the prosecution had to prove and had proved that there had been a course of conduct on the part of the appellant. 34. The prosecution had to prove that the course of conduct had caused the complainant to fear on at least two occasions that violence would be used against him. The appellant disputed that the complainant feared, and had been caused to fear, that violence would be used against him. 35. The prosecution then had to prove that the appellant knew or ought to have known that his course of conduct would cause the complainant to fear violence on each of those occasions. This was also in dispute. 36. The jury must have been sure that these ingredients had been proved. 37. It is submitted on behalf of the appellant that additionally the prosecution had to prove that the course of conduct amounted to harassment. This point was not taken at trial. Given the definition of harassment in section 1 and given that by virtue of section 7 “References to harassing a person include alarming the person or causing the person distress”, proof of the offence against section 4 would seem necessarily to involve proof of harassment within the meaning of section 1. But, so it is submitted, the courts have added further ingredients to the definition of harassment in section 1 and the prosecution must therefore prove those additional ingredients. This argument, so it is said, was accepted by another Division of this Court in Curtis and, so it is said, we are bound by Curtis . 38. It is this argument which led us to grant leave to appeal. We look later in this judgment as to what those added further ingredients are said to be. 39. If the prosecution prove the necessary ingredients then it is a defence for the appellant to show on the balance of probabilities that the pursuit of his course of conduct was reasonable for the protection of himself or another or for the protection of his or another's property. The appellant’s defence was that he pursued the course of conduct in order to protect his sister. The course of conduct the pursuit of which the appellant must show is reasonable is the course of conduct which caused the complainant to fear that violence would be used against him on at least two occasions and which the appellant knew or ought to have known would cause the complainant to fear violence on each of those occasions. 40. Given the violent nature of the threats, the appellant would have faced an uphill task in showing that it was reasonable to purse the course of conduct which he did. It is difficult to see how it is reasonable to threaten violence of the kind threatened by the appellant in this country in order to protect Yahuffu in Bangladesh from the (alleged) conduct of the complainant. Lesser offence 41. As we have seen, section 4(5) provides that 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. 42. In the instant case the judge left the section 2 offence to the jury should they acquit the appellant of the section 4 offence and directed them about the ingredients of the section 2 offence. Curtis 43. We take the facts from the Criminal Law Review Report [2010] Crim. L.R. 638: C was convicted of putting a person in fear of violence by harassment ( Protection from Harassment Act 1997 s.4(1) ) and causing danger to road users ( Road Traffic Act 1988 s.22A(1) ). The prosecution was based on six incidents [over a period of some 9 months] which occurred while C and the complainant [both police officers] were living together. It was alleged that C followed a course of conduct in which he used or threatened violence against the complainant which caused her to fear that violence would be used against her and that C knew or ought to have known that his course of conduct would cause her so to fear. In one incident C and the complainant were travelling in a car; the complainant said that while she was driving at about 60mph, C pulled the handbrake putting the car into a skid. C accepted that there were a few sporadic incidents in the course of a volatile relationship, but denied that there was any nexus or connection with the incidents which allowed them to be described as a course of conduct. There were arguments because C conducted long telephone conversations with his wife. The complainant thought that he felt guilty about leaving his wife and said that he was jealous and possessive. His behaviour was bad when he had been drinking. The judge, while rejecting a submission of no case to answer, referred to the “insecurity on both sides” and that “both were being somewhat childish … there appear to have been a series of domestic disagreements which have arisen. Neither may have acted in an exemplary fashion in relation to each of them.” 44. The Court, presided over by Pill LJ, quashed the convictions. 45. Pill LJ, having set out the facts and the arguments, said the “course of conduct” referred to in section 4(1) is a course of conduct which amounts to harassment. It followed that the prosecution had to prove that the defendant had harassed the complainant. Pill LJ said: 20. The “course of conduct” identified in section 4(1) is a course of conduct which amounts to harassment of another. That follows, in our judgment, from the definition in section 1(1)(a), confirmed in section 2 by the reference to “a course of conduct in breach of section 1(1)”. Section 1 is headed “Prohibition of harassment”. The 1997 Act describes itself as “an Act, to make provision for protecting persons from harassment and similar conduct”. On a trial on indictment, the jury may find a defendant guilty of an offence under section 2, as an alternative, on a charge under section 4 , which demonstrates that both are concerned with a course of conduct amounting to harassment. The issue is whether, on the evidence, the appellant had pursued a course of conduct in relation to Donna which amounted to harassment of her. If he did, there was sufficient evidence to go to the jury on the “fear” element in section 4(1) . 46. The Court is here giving three reasons for the conclusion that the prosecution has to prove that the defendant had harassed the complainant, all three of which are relied upon by Miss Jung. 47. First, the Court is saying that the words “course of conduct” in section 4(1) is a course of conduct which amounts to harassment within the meaning of section 1. We respectfully doubt whether the words “course of conduct” in section 4(1) have to be interpreted in this way. Secondly, the court was influenced by the title of the Act. However the title of the Act refers to both harassment and similar conduct. Additionally section 5(2) (paragraph 31 above), not referred to by the Court, draws a distinction between conduct which amounts to harassment and conduct which will cause a fear of violence. Thirdly the Court supports the conclusion by the existence of the provision enabling the jury on a trial on indictment, to find a defendant guilty of an offence under section 2, as an alternative, on a charge under section 4 . It could perhaps be said, on the other hand, that if proof of a section 2 offence was a prerequisite to proving a section 4 offence, a section 2 offence would be an “included” offence and section 4(5) would not be necessary in the light of section 6 of the Criminal Law Act 1967 . 48. Having looked at the summing-up, Pill LJ in Curtis went on to say: 23. ... but they were not directed that it was necessary for the prosecution to establish that the course of conduct amounted to harassment. 49. In the next paragraph Pill LJ said: For the prosecution, Mr Cranmer-Brown submitted that the prosecution are required to prove only that there was a course of conduct which causes another to fear. That inevitably constitutes harassment, he submitted. 50. Ms Fawcett made the same argument to us. 51. The argument seems to us to be right (see paragraph 37 above) unless there are additional non-statutory requirements which the prosecution must prove when a person is charged with harassment contrary to section 2. 52. Having made reference to Pratt v DPP [2001] EWHC Admin 483 and Henley Available on Casetrack 11 February 2000; [2000] 3 Archbold News, both of which were primarily concerned with what constitutes a course of conduct, Pill LJ went on to say: 26. The importance of these issues should not, however, deflect from the need to establish, as was accepted in Pratt , that the relevant course of conduct amounts to harassment. 53. However, Pratt was a section 2 case and not a section 4 case. 54. Pill LJ considered Majrowski v Guy's and St Thomas's NHS Trust [2007] 1 AC 224 , an employment case, in which Lord Nicholls said in paragraph 30: Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2. 55. Pill LJ in Curtis continued: 29. To harass as defined in the Concise Oxford Dictionary, Tenth Edition, is to “torment by subjecting to constant interference or intimidation”. The conduct must be unacceptable to a degree which would sustain criminal liability and also must be oppressive. We respectfully agree with the analysis of Lord Phillips MR, with whom Jonathan Parker LJ and Lord Mustill agreed, in Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233 : “[29] Section 7 of the 1997 Act does not purport to provide a comprehensive definition of harassment. There are many actions that foreseeably alarm or cause a person distress that could not possibly be described as harassment. It seems to me that s.7 is dealing with that element of the offence which is constituted by the effect of the conduct rather than with the types of conduct that produce that effect. [30] The Act does not attempt to define the type of conduct that is capable of constituting harassment. “Harassment” is, however, a word which has a meaning which is generally understood. It describes conduct targeted at an individual which is calculated to produce the consequences described in s.7 and which is oppressive and unreasonable. The practice of stalking is a prime example of such conduct.” 56. We should add that section 3 which creates the civil remedy requires proof of an actual or apprehended breach of section 1. 57. A little later Pill LJ in Curtis said: In the present case, the jury would have been entitled, if they saw fit, to conclude that, over the course of the relationship, the appellant’s conduct was deplorable and worse than that of [the complainant]. The incidents were far from trivial and significant force was on occasion used. However, we cannot conclude that, in this volatile relationship, the six incidents over a nine month period amounted to a course of conduct amounting to harassment within the meaning of the statute. 58. It could be said with some force that the Court in Curtis reached the conclusion which it did on the conventional ground that the prosecution had failed to prove a course of conduct. On the other hand the Court is making it very clear that it is necessary for the prosecution in a section 4 case to establish that the course of conduct amounted to harassment within the meaning of section 1. Whilst we might have been inclined to conclude that the conclusion that it is necessary for the prosecution in a section 4 case to establish that the course of conduct amounted to harassment within the meaning of section 1 was obite r, we feel unable to do so, particularly in the light of Widdows [2011] EWCA Crim 1500 . The judgment in that case was handed down on 21 June 2011, seven days after the hearing of the appeal in this case. We are very grateful to Professor Ormerod for drawing it to our attention. We have decided that is not necessary to call for further argument. 59. Widdows was convicted of putting a person in fear of violence by harassment contrary to section 4 of the Protection from Harassment Act 1997 . He was also charged with two counts of rape, of which he was acquitted. 60. We take the facts from the judgment of Pill LJ: 4. Between August 2008 and March 2010, the appellant and the complainant, Sarah Bunn, were involved in a volatile relationship and lived together. They separated on many occasions during that period but reunited after a few hours or days. During separations, the appellant would stay with an elderly friend called Daphne. The charge under section 4 was based on six incidents between January 2009 and March 2010. The rapes were alleged to have occurred during the final incident on 6 March 2010. In his summing up, the judge summarised the evidence about the incidents in considerable detail. The complainant was a mature woman in good employment but was emotionally vulnerable. 61. A little later in the judgment Pill LJ said: 25. Curtis was not cited to the judge. It has much in common with the present case; a volatile relationship, six incidents in that case over a four month period, outbursts of ill-temper and bad behaviour interspersed in considerable periods of affection. 62. Pill LJ went on to say that Curtis was indistinguishable. He continued: 29. … When bringing a charge under section 4 the prosecutor (and the judge when summing up) should have in mind the concept of harassment which is at the core of the 1997 Act , though the word is not used in section 4 and the explanation of harassment in Majrowski “stalkers, racial abusers, disruptive neighbours, bullying at work and so fourth” and in Thomas , where the practice of stalking was said to be a prime example. The section is not normally appropriate for use as a means of criminalising conduct, not charged as violence, during incidents in a long and predominantly affectionate relationship in which both parties persisted and wanted to continue. 30. … Description of a number of acts of violence spread over nine months during a close and affectionate relationship does not satisfy the course of conduct requirement or the requirement that it is conduct amounting to harassment. 63. Again it could be said with force that Widdows is deciding no more than that the prosecution had failed to prove a course of conduct. But in Widdows Pill LJ also said: 26. In Curtis , the court found, at paragraph 31, that it must be established that the course of conduct was conduct amounting to harassment as defined in the authorities: Majrowski v Guy's and St Thomas's NHS Trust [2007] 1 AC 224 , Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233 , R v Hills [2001] 1 FLR 580 were cited 64. Miss Jung submits that we should follow Curtis (and now Widdows ) and decide that a prosecution under section 4 requires proof of harassment and that the prosecution must therefore prove, in addition to the statutory requirements, the requirements identified in the civil cases to which Pill LJ referred. 65. The decision in Curtis attracted a critical commentary from Mr James Richardson QC in the Criminal Law Week, Issue 20, 2010 page 2: This decision is best explained by the court’s obvious disdain for the criminal law being brought to bear on six incidents in a relationship between a couple (both police constables) who lived together for about 18 months, where the incidents were spread over a nine month period, and consisted of “spontaneous outbursts of ill-temper and bad behaviour, with aggression on both sides…interspersed…with considerable periods of affectionate life” (see [32]) Whilst the court’s approach may be understandable, its analysis of the legal position is unsustainable. If it had ruled that no reasonable jury could have concluded that six incidents spread out over nine months could amount to a “course of conduct”, that would have been one thing, but it did not do so. All the judge had done wrong was to omit to direct the jury that the course of conduct pursued by the defendant had to amount to harassment. Since, however, the jury by their verdict found that the defendant had pursued a course of conduct that had put the complainant in fear of violence on at least two occasions, they must inevitably have found that he pursued a course of conduct that amounted to harassment, as the Act specifically states that “harassing a person [includes] alarming the person or causing the person distress” (s.7(2) Archbold 2010 § 19-277g). It is inconceivable that the jury could have concluded that the complainant was caused to fear violence at the hands of the defendant without being caused either alarm or distress. The Act is constructed on the basis that the greater includes the less, which is why a conviction of the lesser offence of simple harassment is an available alternative to an allegation under section 4 (s.4(5)). A person who pursues a course of conduct (question of fact) which amounts to harassment of another (question of fact but includes alarming or distressing the other) is guilty of the basic offence (s.2). If his course of conduct causes his victim not just to be alarmed or distressed, but to fear violence on at least two occasions, then he is guilty of the aggravated offence (s.4). Like it or not, that is what the jury were satisfied of in this case. 66. The problem with this criticism is that it does not deal with the additional non-statutory requirements to which Pill LJ referred. 67. Professor Ormerod’s commentary in the Criminal Law Review was slightly sceptical rather than critical. Professor Ormerod thought that the Court’s conclusion “sits more comfortably with the fact that s.2 is an included alternative offence”. He does not find the tests to be found in the civil cases very helpful. He wrote: The simple offence of harassment under s.2 of the Act requires, inter alia, (1) a course of conduct (2) which must amount to harassment of another. The more serious offence under s.4 requires that the victim is caused, by the course of conduct, to fear violence on at least two occasions. The court concludes that the s.4 offence requires proof also that the course of conduct has to amount to harassment. Section 4 does not expressly require that the course of conduct which causes the victim to fear violence constitutes harassment. Section 4 contains the stricter limitation that the course of conduct has to cause fear (it being insufficient even to frighten the victim as to what might happen ( Henley )). Arguably s.4 represents a distinct offence focused not on harassment, but on the graver wrong of creating fear of violence. However, the court's preferred interpretation is one which construes s.4 in the broader context of the Act and sits more comfortably with the fact that s.2 is an included alternative offence. Furthermore, it is consistent with the approach that seems to have been taken in previous authorities holding that the victim has been put in “fear of violence by harassment ”, such as Patel [2004] EWCA Crim 3284 ; [2005] 1 Cr. App. R. 27 (p.440) (emphasis added). Holding that the s.4 offence does not also require the course of conduct to constitute “harassment” would only be of practical significance if there are circumstances in which two or more incidents with a sufficient nexus caused a fear of violence without also being harassing. That would seem unlikely. On the relationship between ss.2 and 4 see generally the critique by E. Finch, “Stalking the Perfect Stalking Law: an Evaluation of the Efficacy of the Protection from Harassment Act 1997 ” [2002] Crim. L.R. 703. In this case, the jury received adequate direction on the need for a “course of conduct”, with the judge mentioning it no fewer than 29 times. The course of conduct must involve conduct on two or more occasions and there must be some nexus between them. The question of whether the incidents are sufficiently related to constitute a course of conduct has given rise to numerous appeals: Patel ; Pratt v DPP ; Lau v DPP [2000] Crim. L.R. 580 DC; Hills [2001] 1 F.L.R. 580; [2001] Crim. L.R. 318 CA (Crim Div). That question turns on the facts of each case. Although there is no need for the events to be close in time or similar in nature, these are factors which are relevant, with others, in determining whether there is a sufficient nexus. In this case the Crown alleged that the nexus was that the complainant stood up to C when he threatened or used violence. Is there really any link here beyond the fact that the incidents involve the same victim? The judge did not direct on the need for the course of conduct to amount to “harassment”. There is no statutory definition of that term. The failure to define in the 1997 Act was intentional; the Act was designed to tackle “stalking”, which can take many forms, some of them wholly unpredictable. In addition, the word “harassment” had been used in the Public Order Act 1986 and was familiar to the criminal courts. In this case, the court rejected the argument that by causing V fear by his course of conduct C had harassed her. Having referred to civil authorities and the dictionary definition, the court concludes that the additional element of harassment requires proof that “the conduct must be unacceptable to a degree which would sustain criminal liability and also must be oppressive” (at [21]). With respect, it is not clear that this assists. There is, surely, an element of circularity in saying that a course of conduct amounts to a crime of harassment if it is so unacceptable to be criminal. Nor, it is submitted, is it tremendously helpful to define the concept by reference to whether it is “oppressive and unreasonable”. The principal lesson of this case seems to be about the correct selection of charges. There are numerous types of offence where prosecutors might be tempted to try to elevate what look like plain assaults into something more. The same problem arises with some prosecutors trying to charge public order offences such as affray for what are mere assaults. Section 4 may be wider than common assault in terms of mens rea and because there is no need for the fear of immediate violence, but it has other restrictions. Note also that whereas in this case numerous incidents are relied on and there are allegations of other offences, it is permissible to rely on the facts of those other alleged offences as forming part of a course of conduct amounting to harassment provided the Crown makes clear the nature of the allegations ( Jones v DPP [2010] All E.R. (D) 230 (Feb)). 68. We have looked at Patel. As in this case the statement of offence referred to harassment. Apart from that Patel does not seem to us to help. 69. Whilst accepting, as we must, that section 1 is so broadly defined that it may be necessary to import non-statutory requirements into the definition of the offence, we would, but for Curtis and Widdows , have taken the view that the section 4(1) offence is a freestanding offence and does not require proof of harassment. It would then follow that the statement of offence should not refer to harassment. 70. However, we have reached the conclusion, not without some reluctance, that we must follow Curtis and Widdows with the result that a prosecution under section 4 requires proof of harassment and that the prosecution must prove, in addition to the statutory requirements, the requirements identified by Lord Phillips MR in Thomas v News Group Newspapers Ltd , which we have set out earlier in paragraph 55. 71. The first of those requirements is that the conduct must be targeted at an individual. That requirement, on the facts of this case, adds nothing to what the prosecution had to, and did, prove. 72. The second of those requirements is that the conduct must be calculated to produce the consequences described in section 7 (alarming the person or causing the person distress). Conduct would, it seems to us, to be calculated to produce the consequences described in section 7 if the defendant intended to alarm the complainant or cause him distress (or, perhaps, was reckless as to the consequences). Section 4 requires proof that the defendant knew or ought to have known that his course of conduct would cause the complainant to fear violence. The jury in the present case not having been directed, in accordance with Curtis , that they must be sure that the defendant intended to alarm the complainant or cause him distress, is the conviction safe? In our view it is. We take the view, contrary to the submissions of Miss Jung, that it is inconceivable that the jury (given their other conclusions) would not have been sure that the appellant intended to alarm or distress the complainant in order to achieve his stated objective of protecting Yahuffu. Unless he at least alarmed or distressed the complainant, the appellant would, on his account, have been unable to achieve his objective. 73. The third of those requirements is that the conduct must have been oppressive and unreasonable. The appellant’s conduct must, on the jury’s findings, have been oppressive. Miss Jung submits that the prosecution must prove that the conduct was unreasonable. This cannot be right in the light of section 1(3), which provides that the defendant must show that his conduct was reasonable. 74. Miss Jung also submits that that the jury would have been entitled to find an absence of the additional non-statutory requirements because of the alleged provocation on the part of the complainant. Whilst provocation might possibly be relevant to the issues of causation and reasonableness, both of which were left to the jury, we do not accept that it has any further relevance at trial stage. 75. For these reasons this ground fails. The refused applications for leave to appeal 76. The appellant seeks leave to rely on fresh evidence to undermine the conviction. 77. Miss Jung first took us to two statements, one made by Shomila Begum, one of the appellant’s first cousins who lives in Banigazi. She alleges that the complainant is a criminal, who has sexually abused young girls including Lucky and has stolen Yahuffu’s passport. The other was made by a nephew of the appellant, Shakerul Islam. He also attacks the character of the complainant. The account that they give reflects the evidence that the appellant gave at trial to undermine the prosecution’s case that the complainant did fear violence and to support the appellant’s case that his conduct in communicating with the complainant by letter and email in the way that he did was to protect his sister and was thus reasonable. 78. There is no reasonable explanation for the failure to adduce the evidence at trial. The appellant described to the jury what he understood was happening in Bangladesh – if he wanted to back that up with evidence from Bangladesh then he should have done that at trial. Nor do we think that it would now be in the interests of justice to introduce this evidence (for which in any event permission would be required under the bad character provisions of the Criminal Justice Act 2003) which is not of central significance to the real issues in the trial. 79. The appellant seeks also to rely on statements of Ethesham Haque and Yasin Aziz, respectively the son and nephew of the appellant both of whom were not only available to attend the trial but, we are told, did so. To the limited extent that the evidence could be regarded as relevant, it should have been called at trial. 80. Finally the appellant seeks to rely on two police reports from Pakistan. One is to the effect that the complainant made an accusation and that the officer went to “the place of occurrence” and the appellant gave an account of his sister not being cared for properly. The other concerned an investigation into an allegation made by Somorun Nessa (the appellant’s stepmother) against amongst others the appellant. The report merely reports what the officer was told by those he saw. 81. Neither report adds anything of value to the case which the jury had to consider. Unbalanced and unfair summing-up 82. It is submitted by Miss Jung, who, as we have said, was not trial counsel, that the summing-up was unbalanced and unfair in a number of ways. Trial counsel at the conclusion of the summing-up made only one small comment on the summing-up when asked by the judge whether he had anything to say about it. 83. Miss Jung rightly abandoned an argument that the judge’s behaviour was such as to deny the appellant a fair trial. 84. Miss Jung makes a large number of points, only some of which we need to examine. 85. She submits that it was the main thrust of the defence case that the complainant was a cunning and manipulative character who had deliberately provoked the appellant into making threats on paper and that he was playing the victim in order to get the appellant convicted. 86. If this was or may have been right then the complainant would not have feared, or have been caused to fear, that violence would be used against him. That issue was left fairly and squarely to the jury. 87. Miss Jung submits that the judge did not refer to a number of matters which tended to support the appellant’s case that the jury could not be sure that the complainant feared, or had been caused by the appellant’s course of conduct to fear, that violence would be used against him. She makes reference to the following: The fact that Nazrul Islam had not at any time phoned his younger brother to tell him that he did not have the passport or to speak to him in an attempt to resolve the situation; The fact that Nazrul Islam wanted all communications (such as from Shahida Aziz) in written form without any good reason; The fact that Mr. Haque had no reason to want to kill his own brother or to make serious false allegations about him; That Mr. Haque, a man of previous good character, was Mr. Islam’s younger brother and that he had never previously been violent towards him. 88. We see nothing of merit in this point. The judge did, of course, give a good character direction. 89. Miss Jung submits that the judge generally did not pay enough attention in his summing up to the appellant’s case. We do not agree. 90. Miss Jung submits that: ... the learned judge minimised the importance of the defence case by remarking as follows, at pp.41H-42B of the Summing Up: “She (Shahida) insisted the defendant threatened no violence. She said, ‘Nazrul is playing the victim.’ That is an expression that I think, it is a matter entirely for you, was also used by the defendant. What you make of that is a matter entirely for you.” 91. The appellant had used the word “victim” in the correspondence with the complainant. We see nothing wrong with the judge’s comment. 92. Miss Jung criticises the way that the judge dealt with the letters and emails, not mentioning those parts which tended to support the appellant’s case as to why he needed to write, namely to ensure the protection of his sister in Bangladesh. We have read the summing up (see e.g. pages 36, 46 and 48) and that, in our view, is not a good point. 93. Miss Jung criticises the fact that the judge used the word “sure” when she said that the defence had to make the jury sure on the balance of probabilities. It is true that the judge did use the word sure on more than one occasion and in the written route to verdict in this context and it would have been better if she had not. But she also used the word “conclude”, “think” and “satisfied” in the summing up and explained what the balance of probabilities meant. The use of the word “sure” could not possibly make the conviction unsafe. 94. Miss Jung makes a general complaint that the judge gave insufficient help about the defence of reasonableness. Both in her oral and written directions the judge properly defined the defence and told the jury, as they would have known anyway from speeches, that the appellant was claiming that he wrote the letters and emails in order to protect his sister. 95. Miss Jung also criticised the direction at page 9 that the jury need not be concerned with the issue of whether the sister had been assaulted or whether she had ever been abused. This, so it is said, was an important issue with regard to the statutory defence relied upon by Mr Haque. Almost all of the evidence to support the allegation that the complainant had mistreated the sister was challenged hearsay in the context of a very divisive family dispute. The judge in our view was right to invite the jury to concentrate in the context of the statutory defence on the appellant’s claim that he believed that she had been mistreated, a claim which was supported by the contents of the letters and emails, by the evidence of the appellant and of Shahida Aziz. 96. Miss Jung criticises amongst other things the fact that at page 32B-C, the judge summed up that Yahuffu had denied being mistreated. In evidence the appellant in fact said that although she at first denied everything, she did remember that she had been assaulted when a nephew who actually witnessed her being struck asked her ‘don’t you remember when Lucky smacked you?’ The respondent accepts that the appellant gave this evidence. We note that counsel for the appellant did not raise this matter with the judge at the end of the summing-up, suggesting that it was not of importance in the context of the case as a whole. 97. In conclusion we have read the summing-up and found it to be fair and well balanced in the context of the issues which the jury had to resolve. The judge sensibly divided her summing up in such a way that each event was dealt with separately, the jury receiving a summary of the evidence coming from both parties as it related to each event. The judge did not simply read from her notebook. She structured the summing up very well. 98. It is for these reasons that we rejected the two grounds for which leave to appeal was sought.
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{"ConvCourtName": ["Snaresbrook Crown Court"], "ConvictPleaDate": ["2010-05-25"], "ConvictOffence": ["Putting a person in fear of violence by harassment"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["data not available"], "Sentence": ["data not available"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know", "Other"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Relative"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["telephone calls", "Digital evidence"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["significant force"], "MitFactSent": ["mother died several years"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["conviction"], "AppealGround": ["fresh evidence", "criticised the direction", "judge gave insufficient help about the defence"], "SentGuideWhich": ["The Protection from Harassment Act 1997", "section 4(1) of the Protection from Harassment Act 1997."], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["Neither report adds anything of value"]}
447
Neutral Citation Number: [2009] EWCA Crim 1018 Case No: 200900447 A9 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 30th April 2009 B e f o r e : MR JUSTICE SIMON MR JUSTICE BLAKE - - - - - - - - - - - - - - - - - - - - - R E G I N A v DEBORAH VERA POWELL - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr A Rollin appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE SIMON: On 17th November 2008 at Canterbury Crown Court, the appellant, now aged 33, pleaded guilty to two counts on a new indictment. On 18th December she was sentenced to two years' imprisonment on count 2, which charged an offence of having an offensive weapon, and to six months' imprisonment to be served concurrently on count 1, which charged her with an assault. The overall sentence was therefore two years, with 94 days spent on remand to count towards that sentence. An earlier indictment containing counts charging assault occasioning actual bodily harm and having an offensive weapon was stayed. She appeals against that sentence with the leave of the single judge. 2. The circumstances giving rise to the offence were these. The appellant worked at an Asda store in Canterbury, where she befriended a woman named W, who also worked at the store. The appellant gave to Miss W the mobile telephone number of a man with whom the appellant had previously been in a relationship. When the two of them began to see each other the appellant became jealous. It appears that she threw a bottle of water at Miss W, which led to her dismissal from employment at the store. 3. On 15th September 2008 she went back to the store, selected a large kitchen knife from a display and removed it from its packaging. She then went up to Miss W, who was working at one of the check-out tills, and pulled her hair back, causing some reddening of the scalp. That assault gave rise to the charge under count 1. At this point, more seriously, the appellant then put the point of the knife she was carrying to Miss W's throat. She struggled and called out for help; and then sensed the knife being moved across her throat to the side of her neck. This gave rise to the charge under count 2. Two members of staff came over at this point, pulled the appellant away and disarmed her, suffering minor cuts to her hands as they did so. The appellant was restrained but continued to shout, "You've ruined my life", at the complainant. 4. In interview the appellant said she had gone back to the store to see old colleagues, but the sight of the complainant had brought back all her old feelings of jealousy and resentment. She said she did not intend to hurt her and that the victim had not deserved what had happened to her. She said to the police, "I must tell you, I feel really guilty, I can't believe I really did it". 5. She had not previously appeared before the courts and the pre-sentence report described her as demonstrating insight and remorse. She had become preoccupied with the complainant and fantasised about harming her because of her relationship with a man with whom the appellant had a brief relationship. She had used the complainant as a focus for her problems and negative feelings. She had been aggressive towards the complainant on a previous occasion. Distorted and obsessive thought processes underlay the offences. She struggled to develop satisfactory relationships with others, misinterpreted positive attention and quickly became emotionally attached. The risk of re-offending was low to medium. She had a history of depression and used alcohol as a coping mechanism. In the view of the writer of the pre-sentence report she posed a high risk of self-harm and suicide attempts. The report proposed a community or suspended sentence order with supervision and exclusion requirements. 6. The psychiatric report which was available to the judge described a history of mild depressive episodes, which had been treated with anti-depressant medication, and an adjustment disorder following the break up of her relationship. She was not, however, suffering from any significant psychiatric illness. She had a lack of self-confidence and low self-esteem. She bottled up anger and frustration and this had led to an uncharacteristic episode. She would benefit from the ongoing use of anti-depressant medication and counselling or group therapy. She was vulnerable to developing a more depressive condition if faced with significant or prolonged stress, such as a lengthy custodial sentence. 7. In passing sentence, the judge set out the facts and accepted that the incident would not have gone any further. In his view the offence was committed in the context of knife crime that was rife and getting out of control. In mitigation were her guilty pleas and the contents of the pre-sentence and psychiatric reports. There had to be a significant custodial sentence so that the public could feel sure that the courts were protecting them. Her personal needs had to come second to that, and they would be dealt with in prison so far as possible. 8. In the grounds of appeal supplemented orally today by Mr Rollin it is said that the sentence of two years did not reflect the absence of a number of aggravating circumstances and laid too much emphasis on aggravating circumstances which were not, on proper analysis, such. 9. We should say at once that we do not agree with the suggestion in the pre-sentence report that a community sentence should have been imposed. The taking of and the deployment of the knife was a calculated act and was bound to cause extreme fear to the victim and a high degree of anxiety to those who saw what happened. The danger implicit in the appellant's actions is demonstrated by the injuries, albeit minor, suffered by those who tried to disarm her. On the other hand, there were a number of mitigating factors. The appellant had pleaded guilty at the earliest opportunity to this charge and had expressed remorse too at a very early stage. Although this would not have been known to the victim, the judge accepted that the incident would not have gone any further. The crime did not have the aggravating features identified by this court in R v Pouton and Celaire [2002] EWCA Crim 2487 . Furthermore, there were no previous convictions for violence or carrying weapons. Indeed, the appellant had a positive good character. The weapon had not been carried around with the intention of using it if the occasion arose and was not used with the clear intention of causing fear, although this would plainly have been the consequence. 10. In our view, the judge was wrong to treat this case as conforming to the type of crime with which the public and the courts are particularly concerned: the habitual carrying of knives with the associated risk to public safety, see the guideline case of R v Povey and others [2008] EWCA Crim 1261 . 11. In the light of these circumstances we have concluded that a three year starting point was too high and the appropriate sentence was one of 18 months' imprisonment on count 2 and three months' imprisonment concurrently on count 1 to take into account the guilty plea, therefore 18 months' imprisonment in total. We therefore quash the sentence of two years' imprisonment and the sentence of six months' imprisonment and substitute these sentences. To that extent the appeal is allowed.
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{"ConvCourtName": ["Canterbury Crown Court"], "ConvictPleaDate": ["2008-11-17"], "ConvictOffence": ["with an assault", "having an offensive weapon"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know", "the earliest opportunity"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["94 days"], "SentCourtName": ["Canterbury Crown Court"], "Sentence": ["six months' imprisonment", "two years' imprisonment"], "SentServe": ["Concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["All Female"], "OffAgeOffence": ["32"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Had mental health problems"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Female"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Employed"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["data not available"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Medium risk of reoffending", "Don't know"], "AggFactSent": ["put the point of the knife she was carrying to Miss W's throat", "large kitchen knife", "offensive weapon"], "MitFactSent": ["positive good character.", "psychiatric reports", "pre-sentence", "guilty pleas", "remorseful"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeals against that sentence"], "AppealGround": ["sentence is too excessive"], "SentGuideWhich": ["R v Povey and others\n [2008] EWCA Crim 1261."], "AppealOutcome": ["appeal is allowed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["sentence is too excessive"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
619
Case No: 2003/04573 Neutral Citation Number: [2005] EWCA Crim 1089 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE LINCOLN CROWN COURT (The Honourable Mr Justice Astill) Case No 2003/04573 Royal Courts of Justice Strand, London, WC2A 2LL Wednesday, 4 th May 2005 Before : LORD JUSTICE LAWS DAME HEATHER STEEL and HIS HONOUR JUDGE MARTIN STEPHENS QC - - - - - - - - - - - - - - - - - - - - - Between : Edward Grant Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr Edward Rees QC and Ms Rebecca Trowler (instructed by Fraser Wise ) for the Appellant Mr Anthony Barker QC and Mr Stephen Lowne (instructed by Crown Prosecution Service ) for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE LAWS: INTRODUCTORY 1. On 25 June 2003 before Astill J at the Lincoln Crown Court, following a trial which had commenced on 6 May 2003, this appellant was convicted by the jury of an offence of conspiracy to murder. On 27 June 2003 he was sentenced to 18 years imprisonment. The conspiracy was charged in count 1 of the amended indictment. The particulars were that the appellant had conspired with two others, Chand and Sond, and with persons unknown, to murder a man called Ian Dowling. There was an alternative charge framed in count 2 of the indictment, of conspiracy to cause grievous bodily harm. No verdict on count 2 was taken in the appellant’s case given his conviction on count 1. Chand and Sond stood their trial alongside the appellant. They were acquitted by the jury on both counts. 2. The appellant now appeals against his conviction. He has put forward five grounds. The learned single judge gave leave only on grounds 1-3. Before us on 24 February 2005 the appellant sought to review his application for leave on grounds 4 and 5. At the outset of the hearing we granted the leave sought. We shall explain the content of the grounds in due course. FACTS: OUTLINE 3. The prosecution case in barest outline was as follows. The victim, Ian Dowling, was the appellant’s wife’s lover. She had left the matrimonial home in October 2000, taking the three children of the family with her. She rented a house in Sidney Street, Grantham, and Mr Dowling moved in with her. In the evening of 15 March 2001 Mr Dowling answered a knock at the door. He was confronted by an unknown gunman who shot him in the chest and thigh. He was pronounced dead later that night. The Crown’s case was that, full of bitterness at the break-up of his marriage, the appellant had recruited Sond and Chand to murder Dowling. He had been introduced to them by associates at his work. A pattern of phone calls between the defendants, and notes recovered from their property, were relied on to show contact between them and the existence of a plan to harm Dowling. The defendants were all said to have told lies in interview after their arrest. 4. The appellant’s case was that there had indeed been a conspiracy in early 2001 to assault Dowling; but he, the appellant, had called it off in February 2001. The appellant suggested that Dowling might have been killed by criminal contacts of his own in Grantham, possibly over drugs. As was admitted by the Crown, Dowling had connections with known criminals, including drug dealers. Sond gave evidence that he and Chand had been party to a plan to beat up Dowling on the appellant’s behalf, but it had indeed been called off in February 2001. Chand did not give evidence. We shall have more to say about the conduct of the cases for Sond and Chand in dealing with the fourth and fifth grounds of appeal. THE FIRST THREE GROUNDS: OUTLINE 5. Before the proceedings in front of the jury commenced, a voir dire was conducted in which evidence was called in the context of an application made on behalf of the defendants for an order to stay the proceedings as an abuse of process. The voir dire lasted nearly three weeks. The case put forward for the appellant, then and now, is that the police had deliberately eavesdropped upon and tape recorded privileged conversations between the appellant and his solicitor which took place in the exercise yard at Sleaford police station, following the appellant’s arrest and in parallel with the interview process. At the very least it is said that the police knew that solicitor/client communications might be picked up, and they were. On 23 May 2003 Astill J dismissed the abuse applications, giving very full and detailed reasons. The first three grounds of appeal, which as we have said the single judge gave leave to argue, in one way or another complain of that ruling. In fact Mr Rees QC for the appellant did not press the second ground as having any independent force, and we need say no more about it. “WHEEL”, “MINK” AND “GALAXY”: OUTLINE 6. This case is in fact one of three in which the Lincolnshire police placed covert listening devices in the exercise yard of Sleaford police station. They did so in the course of three major investigations between November 2000 and November 2001. The first in time was Operation Wheel (connected with the criminal prosecution in the case of R v Sutherland ), then Operation Mink (this case) and finally Operation Galaxy ( R v Sentence ). In Operation Wheel covert devices were also installed at Grantham police station. In each case privileged communications between the detained suspects, later to become the defendants, and their legal advisers were intercepted and recorded. In each case there was an application to the trial judge to stay the proceedings as abusive. In Sutherland , Newman J at the Nottingham Crown Court acceded to the abuse application in a very detailed ruling on 29 January 2002. That of course took place before the ruling of Astill J in these proceedings on 23 May 2003. In Sentence , His Honour Judge Heath at the Lincoln Crown Court also acceded to the abuse application made to him and again gave a very fully reasoned decision, on 1 April 2004. Newman J and His Honour Judge Heath, after hearing live evidence called on a voir dire just as was led before Astill J in the present case, each concluded that the covert devices had been placed with the deliberate intention of capturing communications between the detained persons and their solicitors. Astill J held to the contrary effect in relation to Operation Mink in the present case, and that conclusion is the subject of complaint in ground 1. Moreover Newman J appears to have been of the view transcript of Newman J’s ruling 40E-47A, especially 41F. , and His Honour Judge Heath was certainly of the view ruling of HHJ Heath 66E-G. , that it was not necessary to prove any prejudice as such to the defendant in order to conclude that the proceedings were tainted by misconduct constituted by a deliberate eavesdropping upon privileged communications, and in consequence should be stopped as abusive. Again, Astill J in the present case was of a contrary opinion transcript of the ruling of Astill J: 45F-47A. . That conclusion is the subject of the complaint in ground 3 of the grounds of appeal. 7. On any view there was much in common between the three investigations, Wheel, Mink and Galaxy. In each the purpose of the covert listening device was stated to be the capture of communications between suspects held in the police station. But in each operation privileged communications between solicitors and their clients taking place in the exercise yard were in fact picked up and recorded by police. In each of the three cases the police asserted that this happened inadvertently. The conversations were listened to by police officers, called “first-hand listeners”, who made contemporaneous logs. The tapes were subsequently listened to by “secondary listeners” who transcribed the material more fully. 8. An officer called DS Bennett was what was called “interview adviser” in all three operations. In February 2001 he was also appointed disclosure officer in Wheel. As we shall show the evidence about his activities has been at the centre of the submissions made by Mr Rees on behalf of the appellant. 9. It is will be necessary to consider, in a number of respects, the potential impact of the rulings both of Newman J and HHJ Heath upon some of the issues in this appeal. First, we shall set out the facts of the covert surveillance operation at Sleaford police station in the context of Operation Mink, relating to this case. There are however two matters relating to Operation Wheel which it is convenient to describe by way of preamble. TWO PRELIMINARIES 10. The senior investigating officer (“SIO”) in Wheel was DCI White. He would perform the same role in Galaxy. During the course of the transcription of the covert recordings in Wheel, one of the secondary listeners informed DCI White that the recordings included at least one conversation between solicitor and client. Thereafter eight tapes from Grantham, and six tapes from Sleaford, were marked or annotated by secondary listeners as follows: “On the instructions of the SIO this tape is not considered appropriate for transcription. No secondary listening and/or transcription has been completed on this tape, as it would appear that it may contain inadvertent recording of matter subject to legal privilege.” These 14 tapes amounted to just over 20% of the 74 tapes on which recordings were made in Operation Wheel. 11. The second preliminary matter arising in Wheel concerns a confidential report prepared by DS Bennett for DCI White, after Bennett’s appointment as disclosure officer in February 2001. At the time he prepared the report, Bennett was aware of the “inadvertent” recording referred to in the annotation to the 14 tapes. This is how the report opens: “The purpose of this document is to provide a guide to the surveillance techniques utilised during the investigation of the murder of Mark Anthony Corley. As the document contains references to the authorities and techniques employed, as well as the product of the surveillance, it should not be disclosed to the defence.” There follows a list of places and times at which covert devices had been authorised, installed, and recovered. The list includes Grantham and Sleaford police stations. Then this follows: “Due to the costly and time intensive nature of the work, listening was only carried out on limited occasions whilst authorities were in place at each premises. No recording took place when active listening was not being conducted. This means that the product of the surveillance gives only a limited extract of the conversations the subjects of the surveillance actually had.” Later in the document, under the heading “Content of Transcripts”: “Each of the recordings was listened to in full, and transcripts were completed in line with the SIO’s policy (see item 37 at Appendix A). … The recordings were also examined for matters that might assist the prosecution or undermine it. This was done within the terms of a written policy that may be found at Appendix B. … Whilst the recorded conversations may expose the character and criminality of the conspirators, there is nothing that specifically assists or undermines the prosecution case.” We need not read Appendix B. The policy referred to at item 37 of Appendix A has nothing to do with the SIO’s “instructions” mentioned in the annotations to the 14 tapes. There is no reference anywhere in the report to the fact that speech between solicitor and client had been taped. OPERATION MINK 12. Now we may turn to Operation Mink itself. As we have foreshadowed some of Astill J’s conclusions of fact, notably as to the intention with which the operation was put in place, are disputed on behalf of the appellant. We shall have to confront that. We intend what immediately follows to be an account of the uncontentious facts. 13. DCS Cook was the SIO in Operation Mink. His deputy was DCI Wood. Mr Rees submitted, correctly so far as we can see (and we shall have more to say about this), that no witness giving evidence on the voir dire before Astill J accepted responsibility for the initial proposal to bug the exercise yard at Sleaford in the context of Operation Mink. The nearest we get to its beginnings is an obscure reference in Bennett’s notebook for 15 May 2001 where the words “Clerical – Op. Mink” appear. The next day, 16 May, a note was made by DCS Cook on a form with two boxes. The first is headed “POLICY”. DCS Cook wrote: “Preparations will be made to facilitate audio surveillance of the suspects in custody during the assest [ sic ] operation.” Then in the box headed “REASON”: “To monitor conversations between suspects that may connect them to this offence. It is considered that this action should cause minimum interference with the privacy and rights of individuals. It is necessary justifiable and lawful. It is also proportionate to the investigation.” The note reflected the outcome of a management meeting attended by senior officers on that day, 16 May. It was decided that covert surveillance equipment should be installed in the cell passage area and the exercise yard at Sleaford police station, where the Operation Mink suspects (including the appellant) would be taken after their arrest, and where no other prisoners would be held. DI Bourne was one of two team leaders in the investigation into Dowling’s murder and was present at the meeting. The other was DI Bradwell. DI Bourne was to give evidence on the voir dire that he was “tasked” to enquire into the feasibility of putting in place a covert operation of the kind contemplated. 14. On the same day, 16 May, DI Bourne had a meeting with Mr John Cooper, an operational video technician employed by the Lincolnshire police. He said that he asked Mr Cooper whether the cell area (but not the yard) could be bugged. He said that he did not know that the yard had been bugged in Operation Wheel; no one had mentioned that at the management meeting. Mr Cooper’s evidence was very different. In a statement of 15 February 2002, whose accuracy he confirmed in the witness box, he said: “This request included the installation of covert audio equipment to be installed in the cell passageway and the exercise yard of Sleaford police station custody area. I was instructed that this was to be the same as a previous operation and that the audio was to be able to record conversations that took place between prisoners in separate cells or prisoners in the exercise yard. My understanding of this is that the devices would pick up audio that would be heard if a person were to be standing in the cell passage or outside the cell exercise yard.” Giving evidence on the voir dire , Mr Cooper said that DI Bourne knew that this had been done before and that he, Mr Cooper, was being asked to repeat it. DI Bourne denied saying any such thing. 15. We are not at this stage seeking to resolve the factual disputes in the case. We will confront that exercise later. It is enough for the present to notice Astill J’s observation transcript 34D. that Mr Cooper was “patently an honest witness”; and there is no suggestion in his judgment, far less any finding, that Mr Cooper’s recollection of his meeting with DI Bourne was or may have been mistaken. 16. Under the provisions of the Regulation Investigatory Powers Act 2000 (“ RIPA ”), the approval of a senior officer was required for the use of listening devices in such circumstances as were contemplated at the management meeting on 16 May. The appropriate officer in this case was Superintendent Tapley. Application for approval in this case was made to him, and granted, on 7 June 2001. In fact the devices had been installed by Mr Cooper the day before, on 6 June. There is nothing sinister in that; as we shall show they were not activated until 12 June. 17. The application to Supt Tapley was made through the medium of a detailed standard form. DI Bradwell was “tasked” to deal with it. After the management meeting he asked DC Bushell to complete the application as the “applicant”. DC Bushell in turn sought advice on the form of the application from DC Christer of the Covert Operations Department. The contents of the completed form placed before Supt Tapley on 7 June 2001 are of some importance. Supt Tapley was to say that he relied entirely on the accuracy of what was asserted, without giving it any independent consideration. The form included these passages: “This application is made to monitor and record those conversations that take place within the cell passage area and exercise yard of Sleaford police station whilst the suspects are in custody. … The use of covert audio listening devices is essential to record those conversations that take place within the cell area and exercise yard between the subjects. It is strongly suspected that the subjects will not impart the full details of their respective involvement during any interviews.” Then in a box on the form dealing with “collateral intrusion”: “Collateral intrusion has been considered in respect of Eddy Grant, Parminder Singh Gill, Ram Chand and Parmjit Singh Khaktar, whilst they are in custody. The level of intrusion will be restricted to monitoring and recording those conversations that take place between subjects in different cells. The equipment deployed will not monitor activities or conversations taking place within individual cells. This would ensure that conversations between the subjects and any other persons within their cell would not be monitored or recorded. Collateral intrusion has also been considered in respect of other persons who may be present within the cells or exercise yard whilst the subjects are in custody. The level of intrusion against such individuals is considered justifiable and proportionate. It is also suspected that the subjects of this application are unlikely to communicate in depth with any other person in custody at the same time.” 18. On 12 June 2001 the appellant and Chand, together with two other suspects Gill and Khaktar, were arrested and taken to Sleaford police station. At 8.15 am the same day the covert listening devices, in the cell passage area and the exercise yard, were activated. 19. At 9.35 am on 12 June 2001 the appellant and his solicitor Mr Fraser went to the exercise yard. They were unaccompanied. This was before the appellant was formally interviewed by the police. The interview procedure in his case commenced at 10.27 am that day. At 11.19 am the appellant and his solicitor (Miss Fraser, who had taken over from her father) again went into the yard again unaccompanied, and again at 12.23. At some stage about this time another suspect, the man Khaktar, was also in the yard with his solicitor. His interviews began at 17.14 that day. At 22.15 the listening equipment was switched off. It was turned on again at 8.15 am the next day, 13 June. For some period during the morning Mr Khaktar was in the yard with his solicitor. At 13.26 the appellant was taken from his cell for a meeting with his solicitor, but it is not known where that meeting took place. At 15.55 Khaktar went to the yard for a cigarette with his solicitor, but a policeman was present throughout. Covert listening was stopped on the afternoon of 13 June 2001 and never resumed, although interviews of the appellants and Chand continued on 13, 14 and 15 June 2001. As we have said, conversations between the appellant and his solicitor had been recorded. No material of any evidential value was picked up. 20. There are a number of circumstances relating to the use of covert devices in Mink at Sleaford police station which we should describe before leaving this account of the primary facts. Mr Rees submits that these matters go in support of his contention that the device in the yard must have been installed with a view to picking up privileged communications between client and solicitor. First, there was clear evidence that no more than one prisoner at a time was allowed to use the yard, and a single prisoner doing so had to be supervised by a member of the custody staff. Secondly, conversations between the yard and the cell area could be picked up by a single device placed in the cell corridor. Thirdly, there was a ban on smoking inside the buildings at all Lincolnshire police stations; however custody officers regularly allowed detainees to take unsupervised smoking breaks with their solicitors in the exercise yards (notwithstanding the fact that there were documented instructions to the effect that solicitors and prisoners should not be allowed into the yard unaccompanied). Fourthly, listening officers were able to use what was called a “splitter” device, installed by Mr Cooper, so as to listen exclusively to what was picked up by the microphone in the exercise yard. There was a facility to raise the volume of what was being heard. Lastly, it was Mr Cooper’s understanding of his instructions that the purpose of the device in the yard was to pick up shouted exchanges between the yard and the cells; however, later tests conducted by him (in the course, we understand, of an investigation by the Independent Police Complaints Commission) showed that shouting between the yard and the cells could be clearly heard by means of the cell corridor microphones. THE JUDGMENT OF NEWMAN J IN OPERATION WHEEL 21. Newman J’s judgment in Wheel was before Astill J, who referred to it in his own judgment in Mink. Mr Rees’ assault on Astill J’s decision can best be understood after considering Newman J’s conclusions, and also those of HHJ Heath in Galaxy which of course were arrived at after Astill J had delivered judgment. Astill J was, obviously, not bound by the decision of Newman J upon any issue which was parallel or related to a question before him; and HHJ Heath’s conclusions were yet to come. But counsel were agreed, and common sense dictates, that the force of the appellant’s submission that there was an abuse of the process in Mink as surely as there was in Wheel and in Galaxy, and that it is open to this court so to hold notwithstanding Astill J’s decision (after hearing much live evidence) to the contrary, should be judged in light of the whole pattern of events across the three operations. That the court may consider findings made by another judge who has adjudicated upon similar issues is vouchsafed by authority R v D & J [1996] 1 CAR 455; see also R v Twitchell (CACD 26 October 1999), R v B (CACD 5 November 1999). , if authority were necessary. And there is no difficulty in our admitting Judge Heath’s judgment pursuant to s.23 of the Criminal Appeal Act 1968 , which we need not set out. 22. The application in Wheel for permission to install covert listening devices at Sleaford police station, made pursuant to the requirements of RIPA , did not name the exercise yard as an intended location for such a device. Yet one was installed there. The cancellation form, for the cessation of surveillance, did however refer to the yard. In Mink, as we have shown, the exercise yard was named in the application. Astill J transcript, 8B. We shall have more to say about this passage from Astill J’s judgment. regarded the fact that “authorisation was properly obtained in Mink for the exercise yard” as a “principal difference” between Wheel and Mink. 23. Now, there is no doubt that Newman J attached some importance to the terms of the RIPA application and the cancellation form. As he recorded, DCI White gave unsatisfactory evidence about it transcript, 14B-D. . But his conclusion did not, as we read his judgment, critically depend on those matters. We draw attention to these following passages: “The avowed purpose of the operation was to listen to conversations between detainees. The concept of intercepting conversations between detainees in the exercise yard was, if it ever featured, wholly undermined by the evidence as to the policy at the police stations, that unless escorted by a police officer no two prisoners would be in the yard at the same time. Thus, on analysis, the only possibility of attracting a prisoner’s conversation was where the prisoner was in the exercise yard, shouting from the exercise yard to another prisoner in the cells, and that prisoner in the cells was responding to what was being shouted to him from the exercise yard.” transcript 20C-D. “I place particular reliance upon Mr Atherton [a police sergeant with knowledge of Grantham and Sleaford police stations] in the whole of this part of the case, but [ sic : ‘and’ must be intended] there was no need for a device in the exercise yard to pick up conversations between prisoners in their respective cells. That was the purpose of the microphone in the communal passageway in which the cells are situated.” transcript 20G-H. “Common sense dictates, in my judgment, that the device which was deliberately placed in the exercise yards can only have been placed there in order to pick up conversations in the exercise yard. I regard the suggested justifications for it [viz. shouting between the yard and the cells] to attract the conversation as I have described as tortuous, highly unlikely and they leave [me] wholly unconvinced that anyone would have decided to place a bug in the exercise yard to cover the suggested chance or contingency which has been put forward.” transcript 22C-D. These observations seem to us to be no less applicable to the circumstances of the surveillance in the exercise yard in Operation Mink. We shall deal below with a qualification relied on by Astill J. Newman J concluded: “Having carefully considered all the evidence I am satisfied that it is more likely than not that the microphones were placed in each of the exercise yards deliberately and with the intention of capturing any conversation which might take place between the detained persons and the solicitors, either before or between the interviews which were planned to take place over those days. In my judgment each of White, Bannister [White’s deputy in Wheel] and Thom [who drew up the RIPA application in Wheel] acted with that intention. It follows that I have concluded that flagrant breaches of the law have occurred.” transcript 24F-G. THE JUDGMENT OF HHJ HEATH IN OPERATION GALAXY 24. Mink is distinguished from Wheel and Galaxy by the fact that whereas the SIO in the latter two operations was the same officer, DCI White, in Mink it was DCS Cook. In his submissions before us Mr Barker QC for the Crown was at some pains to emphasise this, alongside the fact, as he described it, that DCS Cook was accepted “as a man of integrity” in the voir dire before HHJ Heath. It is clear that counsel before HHJ Heath made no attempt to blacken DCS Cook’s character or to attack the findings of Astill J in Mink. That was, of course, a perfectly proper tactical decision on counsel’s part; and it is certainly true that no criticism is levelled at DCS Cook by HHJ Heath. But this cannot in our judgment be equated with a positive adjudication by HHJ Heath such as might strengthen the Crown’s armoury in this appeal. 25. Like Newman and Astill JJ, HHJ Heath heard a great deal of evidence. It included the oral testimony of DCI White and DS Bennett whom the judge found, to say the least, to be unimpressive witnesses. Much of his judgment is taken up with a critical examination of what they had to say, and we shall cite his remarks about DS Bennett in some detail. At length he concluded transcript 64E-65A. : “It is plain that I have not been told the whole truth by several police officers, namely White, Bennett, Owen, Bosworth, Blakey and Dean. I am driven by all the evidence in this case to the clear conclusion on the balance of probabilities that there was a planned and deliberate capture of privileged conversation between a solicitor and his client… This is not a case of a chapter of accidents or a comedy of errors. From 18 March, when the meeting took place in the seclusion of the Bourne police station, there has been an effort to cover up what happened by an attempt to effectively remove DCI White from Galaxy…” THE APPELLANT’S SUBMISSIONS 26. The starting-point in the case, understandably emphasised by Mr Rees, is that if one stands back and looks at the whole picture there is a perfectly extraordinary concatenation of events on the three judges’ findings: one operation where the purpose included the collection of privileged material, a second operation where it did not, and a third operation where, again, it did: all conducted in the same part of the same police station, with at least some officers (notably DS Bennett) common to all three operations. There is no suggestion before us that the conclusions of Newman J and HHJ Heath, or either of them, were in the least degree erroneous. 27. This apparent turn of events over the three operations is undoubtedly a striking circumstance. But we do not consider that it would suffice on its own to justify this court’s overturning Astill J’s conclusion. We have to look at the particular points in the evidence on which Mr Rees relies. It is convenient to do this under two headings: Bennett , and Other Matters. BENNETT 28. DS Bennett is the strongest link between the three operations. As we have said he was interview adviser in all three, and disclosure officer in Wheel. The state of his knowledge as to what had been done in Wheel, and what he did or did not do particularly when he came to be involved in Mink, is clearly of some considerable importance. He knew, at least, that there had been problems of collateral intrusion. He gave prevaricating answers about this in the voir dire in Mink, but it is certainly plain (as we have indicated) that he was aware of the “inadvertent” recording in Wheel, and the 14 annotated tapes. He knew that a device had been placed in the yard in Wheel. He knew that solicitors and detainees visited the exercise yards together, “but he said only when supervised and not for consultation purposes” Astill J, transcript 12C-D. . In fact he gave different accounts as to whether at the time of Wheel he knew that solicitors used the yard. 29. Though Bennett knew about the 14 tapes, as we have said he made no mention of them in his report to DCI White of February 2001. And when it came to Mink, notwithstanding all the matters to which we have referred, on his account he did not warn DCS Cook about what had happened in Wheel or that there were problems bugging the exercise yard; it did not occur to him to inform anyone in Mink of any previous problem with the surveillance; he gave no information or instructions to the listeners in Mink so as to avoid or minimise the risk of collateral intrusion; he gave no instructions to custody officers to stop solicitors going into the yard or only to use the consultation rooms. He said he did not know who the listeners reported to or who briefed them. He was driven in effect to assert that some unknown officer briefed the listeners and the officer in charge of them reported to an unknown officer. This was wholly at odds with the evidence of DI Smith, head of the listening team who said in terms that Bennett briefed the listeners including himself. 30. Though they are of lesser importance, we should note these further points relating to Bennett which arose in Galaxy. First, he denied knowing the identity of the person who he said had told him that the yard was to be bugged in Galaxy. HHJ Heath found this evidence to be untruthful: “In my judgment, he did know” HHJ Heath transcript, 15B. . Secondly, it is to be observed that Bennett was the officer who filled in the RIPA application in Galaxy. In it he identified solicitors as a potential subject of collateral intrusion; yet on his account his knowledge of collateral intrusion or any risk of it was no greater than it had been at the time of Mink. 31. HHJ Heath dealt with the evidence given before him by Bennett at some length in his judgment. It is with respect illuminating to set out these following extracts, some of which traverse points we have already made. “He then said that such a rule [viz. that no two detainees be allowed in the yard together] may be in existence and then conceded that he did know that prisoners were not allowed in the exercise yard together. I was surprised at how long it took him to arrive at the simple truth in this exchange with Mr Marshall-Andrews [counsel for the defendant Sentence].” 9C-D. “He said that the reason he did not say [in Mink] there was such a problem [sc. of collateral intrusion] to [DCS] Cook was that it did not occur to him at the time to do so. ‘In hindsight,’ he said, ‘I should have done.’ Operation Mink had arisen within a few months of Wheel. As I have already observed, just over 20% of the total of the tapes in Wheel had been lost. Given the problems of collateral intrusion which had been encountered in Wheel and of which Sergeant Bennett had full knowledge, it is very surprising indeed that he did not mention what was a significant problem to [DCS] Cook in Operation Mink. It is very surprising indeed that it did not occur to him.” 11C-F. “He was then asked by Mr Marshall-Andrews about Operation Galaxy and said that he drafted the application. He could not recall who asked him to do it. He said he was made aware two days before arrests were due to be made that the application for directed surveillance had not been made. He said that because of the limited number of persons who were allowed to know of the directed surveillance, he had little choice but to take it upon himself to do it. He said he really did not know who told him it had not been done after this length of time. He did not remember specifically being tasked to do it. He believed that someone else was preparing the application. It could have been one of several who told him it had not been done, so he did it. I found Sergeant Bennett’s explanation lame as to how it was that that it was he who came to make the application for directed surveillance.” 12C-F. “I found Sergeant Bennett less than convincing when he repeated that he took the task upon himself of making the application. He said it was not his understanding at the time that DCI White was in charge of the whole operation. I reject his evidence about that. He plainly did know that DCI White was in charge.” 13B-C. “Detective Sergeant Bennett said that DI Bosworth was to take over as SIO from DI Owen, and Sergeant Bennett said that he would not see the arrest commander for a day as being the SIO. That, in my judgment, was a lame attempt to minimize DCI White’s role in Operation Galaxy.” 13G-14A. “He [sc. Bennett] agreed that everybody at the meeting [at Bourne police station on 18 March 2002] knew that in his Wheel judgment Mr Justice Newman had not accepted that the covert surveillance on solicitors with their clients was inadvertent and had found that it was deliberate. Bennett said that the purpose of the meeting was to identify what areas needed to be covered to give open and transparent access to what was done in Galaxy. He agreed that DCI White had been found by Mr Justice Newman to be the agent behind the deliberate bugging in Wheel. He said that the strategy was not to distance White from Galaxy. He said, ‘We were all about to make statements. I don’t recall whether there was any discussion about what we would each say about White.’ Then he said, ‘Mr White might have been one of the areas which was to be addressed.’ I pause to make this observation. Of course he was. It was absolutely plain from the way in which Sergeant Bennett gave his evidence that Mr White was one of those areas which was to be addressed.” 18C-G. “He was recalled to be cross-examined further by Mr Marshall-Andrews about the Bourne meeting of 18 March. He agreed that there was no reference in his pocket notebook about that conference or meeting with White, Owen and so on. He said, ‘I just haven’t included it.’ Given the ranks of the officers attending, it was quite a high powered meeting, it seems to me. He said, ‘It’s not in my pocket notebook because I obviously forgot to put it in.’ I found him very lame and unconvincing about this. Whe he did enter in his pocket notebook was all pretty mundane, but there was absolutely no reference whatsoever to the two-hour meeting at Bourne. He said, ‘I’ve clearly forgotten to enter it.’ He was, in my judgment, very unconvincing when he said that. It will be clear from what I have said that I found Detective Sergeant Bennett an unimpressive and unconvincing witness.” 19E-20A. 32. We shall set out our conclusions as to what can be drawn from Bennett’s part in this whole affair after considering the other points in the case, and Astill J’s judgment. OTHER MATTERS 33. Here there are a number of points to consider. It is convenient to take first what Mr Rees described as the “Bourne/Cooper conflict”. We have already described the essential discrepancy between the evidence before Astill J of Mr Cooper and DI Bourne, and the fact that Astill J found Mr Cooper to be “patently an honest witness”. In plain contradiction of Cooper’s evidence, Bourne denied that he knew that a bug had been installed in the yard at Sleaford. The implication of DI Bourne’s evidence was that it was Cooper (or “Covert Ops”) who suggested a bug in the exercise yard. This was in conflict with Cooper’s evidence (and also that of other officers). Cooper was clear that the bug in the yard had not been suggested by him. He was clear that DI Bourne knew that this had been done before, and “I would have been asked to provide the equipment similar to what had taken place in Operation Wheel”. transcript of Cooper’s evidence before Astill J, 187, 191. He also said the “splitter” was wanted “because they wanted the facility to listen solely to the exercise yard”. transcript, 182. 34. Again, we will explain what we make of this after dealing with the other points and considering Astill J’s judgment. 35. The next point is that none of the officers who gave evidence before Astill J accepted responsibility for the proposal to install a device in the yard at Sleaford police station, and no one admitted to any recollection of whose proposal it was. Likewise the picture painted before Astill J was to the effect that no one in Mink apart from Bennett knew that just the same kind of surveillance in the yard had been carried out before. This marches with the fact, to which we have already drawn attention, that DS Bennett did not (on his account – and that of DCS Cook) warn DCS Cook about what had happened in Wheel or that there were problems bugging the exercise yard. DCS Cook’s evidence was that he knew nothing of the intrusion into solicitors’ conversations which had happened in Wheel until he was told about it over the telephone by DCI White during the Wheel voir dire before Newman J. Astill J was to say Judgment transcript 10C-E. : “He [DCS Cook] now accepts that [DCI] White should have told him about the problems in Wheel before he did. The same applies to [DS] Bennett who was the interview adviser in Wheel as he was in Mink. He said that [DS] Bennett should have told him what had happened in Wheel.” 36. There is a further linked point. Though on the police evidence DCI White had been informed by a secondary listener of the collateral intrusion in Wheel, he did not inform anyone else when it came to Mink. He did not discuss the matter with DCS Cook. And neither he nor Bennett thought it appropriate to inform Supt Tapley who, as we have said, was the RIPA authorising officer. 37. There is more to say about Supt Tapley’s position. As we have indicated, the application form in Wheel had not named the exercise yard at Sleaford as an intended location for a listening device, though the cancellation notice did. The RIPA application in Mink did name the yard. As we have said, Supt Tapley made it plain that he relied entirely on the accuracy of what was asserted in the application, without giving it any independent consideration. In particular, the clearance given by Supt Tapley for the installation of a device or devices in the yard depended on the assurances given about the risk, or lack of risk, of collateral intrusion. It will be recalled that this was stated in the application: “Collateral intrusion has also been considered in respect of other persons who may be present within the cells or exercise yard whilst the subjects are in custody. The level of intrusion against such individuals is considered justifiable and propaortionate.” DCS Cook told Astill J that it never crossed his mind that solicitor/client conversations would be picked up in the exercise yard: “[t]hat justified the minimal risk in the application form”. Astill J judgment transcript, 10B-C. 38. But in truth the point is a more general one. The absence of any warning in the RIPA application in Mink of the possibility that such conversations might be picked up from the yard at Sleaford pre-supposes, if the officers’ evidence to Astill J was honest, that no one associated with the making of the application knew that solicitors habitually, or at least from time to time, frequented the yard with their clients. If it were otherwise the application could not have been completed as in fact it was, even without knowledge on the part of any relevant officer of the fact that solicitors’ conversations had actually been intercepted in Wheel. THE JUDGMENT OF ASTILL J 39. Now we shall consider what Astill J made of the case. It is convenient to refer first to what he had to say about differences between Wheel and Mink: “One principal difference between Operation Wheel and Operation Mink is that authorisation was properly obtained in Mink for the exercise yard. There are more differences. The fact that solicitor/client conversations were listened to was disclosed in Mink; the tapes were stopped running after two days and the cancellation document accorded with the application document.” transcript 8B-D. 40. Astill J later returns to the differences between Wheel and Mink, as we shall show. Next however we should refer to what we have called a qualification placed by him upon the conclusion reached by Newman J to the effect that the deliberate installation of a device in the exercise yard can only have been done in order to pick up conversations being conducted in that very place. Astill J said this: “… Mr Cooper did see… a value in placing a device in the exercise yard despite the fact that as his rerun of the equipment in Wheel with the Yorkshire Police showed, the cell passageway device would pick up conversations between the cell and the yard and vice versa. He said he would not have installed a device simply for the purpose of picking up solicitor-prisoner conversations. He said that the device of the splitters would enhance the quality of the sound.” 41. Next we should note Astill J’s observations upon the Bourne/Cooper conflict: “Even if [DI] Bourne is now giving untruthful evidence that he did not know of the covert surveillance in Wheel, I do not consider that that means that he knew that an unauthorised device had been placed in the yard as part of that surveillance… It does not necessarily follow that his instruction to Mr Cooper to repeat the installation was an indication that he knew of the device in Wheel, even though a consequence of his instructions to Mr Cooper would be that a listening device would again be placed in the yard. His instruction to Mr Cooper was in accordance with the Mink application.” 34G-35C. 42. Apart from the obvious fact that he could have no knowledge of the proceedings before HHJ Heath, Astill J was fully alive to the points made for the defendants and which in effect we have canvassed in this judgment. He reported defence counsel’s submissions, if we may say so, with meticulous care, including Mr Rees’ bald submission that Bennett was “plainly an untruthful witness” 20C. . He considered Newman J’s judgment at some length, and made detailed reference to some of the evidence before Newman J. At length he concluded as follows: “In assessing the credibility of the officers who gave evidence and the part that each played in the Mink operation, regard must be had to the differences between the circumstances that presented themselves before Mr Justice Newman and those which are present before this court. I consider them, as I have already indicated, to be significantly different. I have not been able to come to the conclusion, despite considering all the matters that have been argued to the contrary, that there has been a conspiracy by a number of relevant officers cynically to disregard the rights of these defendants to legal professional privilege by deliberately listening to prisoner/solicitor conversations. The evidence before me can be interpreted in a different way. I do not find that the connection between Wheel and Mink has or even probably has the significance which has been claimed. The deceit in Wheel would not have been widely publicised. There were two officers in the Mink operation that were involved in the Wheel operation, [DS] Bennett and [DC] Johnson. There is no suggestion that… Johnson has acted improperly in any way. [DS] Bennett was in a far stronger position to do so, but I accept that he passed on the instruction given to him by [DCS] Cook to inform custody staff of the court surveillance, however inadequate that proved to be. Even that would go some way to thwart a dishonest intention. There is no evidence that he was responsible for solicitors visiting the yard with their clients, even if he hoped privileged conversations would be recorded, that would be insufficient in itself to found a submission in abuse. Rather than an unlawful and deliberate attempt to intrude upon the rights of the defendants, I find that that the police approach to the application in Mink, its authorisation and its execution demonstrates serious shortcomings. Defence criticisms of the perfunctory manner in which the application was completed, approved and put into operation are valid. They demonstrate a disregard for the proper procedures demanded by RIPA and it can be no excuse that RIPA was new law; Acts of Parliament do not suddenly happen, it is incumbent upon those who must put them into practice to follow the journey of legislation through Parliament and to prepare themselves accordingly. That is particularly important where the legislation impinges upon a right as crucial to the integrity of the criminal justice system as the right to legal professional privilege. In Mink, scant regard was paid to that at every level and the major responsibility must be borne, in my judgment, by senior officers whose job it is to ensure that those in lower ranks are well-instructed and well-informed. Serious though that criticism is, I am unable to come to the conclusion that there was here a deliberate and therefore illegal plan to use the proper authorisation under RIPA to intercept privileged conversations nor can I come to the view that these failures on their own, serious though they are, offend our principles of justice to the extent that they justify a stay of the indictment.” 40E-42E. FACTUAL CONCLUSIONS ON GROUNDS 1 AND 3 43. First, we are very conscious that we are being asked to overturn the decision of an experienced judge upon issues of fact, in circumstances where the judge heard much live evidence. We have heard no witnesses. Moreover we are being asked to hold, in contrast to the judge, that a good deal of the evidence he heard was substantially dishonest. There is no question of our remitting the case for a further hearing on the merits before a different judge for the matter to be reconsidered in the light of HHJ Heath’s later findings, or anything of the sort. We are invited to reach our own conclusion on the merits in the appellant’s favour. It hardly needs saying that it would take a very exceptional case for the court to accede to such an argument. 44. That said, we find it very striking, first, that Astill J made no finding as to Bennett’s credibility, though it was surely central to the submissions with which he had to deal. He has not confronted the force of the raft of points concerning Bennett which we have summarised. Nor has he got to grips with the significance of the wall of silence concerning the identity of who it was who proposed the installation of a device in the yard in Mink, or the failure to warn officers in Mink about the collateral intrusion which had occurred in Wheel, or the absence of any warning in the RIPA application in Mink of the possibility that solicitors’ conversations might be picked up from the yard. 45. Without convincing answers to all these points, the plain inference in our judgment was that at least some officers, certainly including Bennett, were proposing to establish Mink as a means of surveillance which might catch solicitors’ communications just as had happened in Wheel. But no such answers are to be found in Astill J’s judgment. We have not forgotten that the burden of proof lay on the defence to establish, on the balance of probabilities, the facts relied to demonstrate abuse of process. But in our judgment once all these points are laid out, as in effect they were before Astill J and certainly are before us, the evidential burden shifts to the Crown: and the inference to which we have referred is an obvious one. 46. There are some specific aspects of Astill J’s reasoning which have caused us difficulty. We take first his view of the differences between Mink and Wheel. The fact that authorisation for surveillance in the yard was obtained in Mink, but not in Wheel, seems to us to be at most insubstantial. It may have been done, as Mr Rees suggested, because it had been appreciated late in the course of the Wheel investigation that express authority was required for the yard: that would explain the reference to the yard in the Wheel cancellation document. But in any case this difference pales into insignificance when it is recalled that the application made to Supt Tapley in Mink was gravely defective because of the absence of any warning of the possibility that solicitors’ communications might be picked up. As for the disclosure in Mink of the fact that such conversations were intercepted, given the hearing before Newman J in Wheel and the terms of his judgment, when it came to Mink the prosecution surely had little alternative but to disclose. The tapes were stopped running after two days because nothing of value had been captured. The fact that the cancellation document accorded with the application document in Mink in our judgment adds nothing. 47. If, as we would hold, these differences between Wheel and Mink are in truth of no or trifling importance, Astill J’s reasoning leading to his conclusions, in the last passage we have cited, is gravely undermined. The passage starts with an affirmation of their importance. 48. Secondly, we do not consider that Astill J’s observations about Mr Cooper seeing a “value” in placing a device in the yard begins to assault Newman J’s conclusion that the purpose of doing so can only have been in order to pick up conversations being conducted in that very place. We do not understand that the facility of the “splitter” device could of itself have been a reason to bug the yard. Newman J’s view was that the suggested chance or contingency of shouting between the yard and the cells cannot sensibly have been a reason for anyone to install a device in the exercise yard: such an explanation was “tortuous” and “highly unlikely”. This conclusion has obvious force which is not, we think, weakened by Astill J’s observations or Mr Cooper’s evidence. 49. Thirdly, we find ourselves driven to hold that Astill J’s reasoning concerning the Bourne/Cooper conflict is unpersuasive. His acceptance of Mr Cooper as an honest witness effectively implies that DI Bourne was lying in the voir dire . Bourne’s adamant answers, as they appear to have been, seem to leave no realistic room for honest mistake and Astill J himself accepted that he had lied or at least that he may have done. But his approach to that fact – “Even if [DI] Bourne is now giving untruthful evidence that he did not know of the covert surveillance in Wheel, I do not consider that that means that he knew that an unauthorised device had been placed in the yard as part of that surveillance” – leaves Bourne’s lying unexplained and without apparent motive. The obvious motive is a desire on his part to conceal the fact that Surveillance in the yard in Mink had been established with the same purposes as had been entertained in Wheel. 50. For all these reasons we consider with great respect that Astill J’s conclusion as to the motivation for Operation Mink is at best fragile. Indeed, we greatly doubt whether it could stand even had there been no Operation Galaxy. But HHJ Heath’s judgment must be factored in; and when that is done, we are satisfied that the appellant has shown, at least on the balance of probability (and that is all that is required), that Operation Mink was infected by the same unlawful purpose as infected Wheel and Galaxy. When added to the real objective difficulties which in our judgment beset Astill J’s conclusions, the near-fantastic coincidence that an innocent operation be sandwiched in time between two corrupt ones defies belief. 51. It is, as Mr Rees acknowledged in his reply, impossible to determine precisely which police officers were party to the unlawful plan. Plainly Bennett was; and DI Bourne. While others will almost certainly have been involved it is neither possible nor necessary to name them. THE LAW 52. Acts done by the police, in the course of an investigation which leads in due course to the institution of criminal proceedings, with a view to eavesdropping upon communications of suspected persons which are subject to legal professional privilege are categorically unlawful and at the very least capable of infecting the proceedings as abusive of the court’s process. So much seems to us to be plain and obvious and no authority is needed to make it good. The only question that requires examination is whether such proceedings ought to be characterised as an abuse of the process, and the prosecution stopped, if the defendant or defendants have suffered no prejudice in consequence of the relevant unlawful acts. 53. In the present case it is said there was no prejudice: nothing was recovered from the illicit intercepts of any value to the prosecution, and nothing so recovered was used as, or led towards, any evidence to be called by the Crown. Astill J stated: “Prejudice to the defence is not an imperative in all circumstances. transcript 29D-E. … [In the present case] [t]here is a body of potentially cogent evidence independent of any police practice which cannot be tainted by it… In the trial that is now to take place, the covert surveillance operation has no relevance to the issues before the jury… If prejudice is to be claimed on the basis of something that may have been said by another suspect, there would have to be established an evidential basis to demonstrate that a piece of evidence could not have been obtained but for something that must have been said by another suspect. Similarly, if prejudice is to be established in relation to the use of privileged material in the police enquiry, it would have to be shown that the police could not have pursued a line of enquiry or obtained a particular piece of evidence unless it was the result of something that could only have been said by a fellow suspect. The prejudice submissions have not been advanced on either of those bases and for good reason. Accordingly, this trial, unlike R v Sutherland [sc. the Wheel case], will not involve the investigation of evidence that has its origins in privileged material. The defences have not established prejudice and these applications must be refused.” 45F-47B. 54. We have concluded that this is a mistaken approach. True it is that nothing gained from the interception of solicitors’ communications was used as, or (however indirectly) gave rise to evidence relied on by the Crown at the trial. Nor, as we understand it, did the intercepts yield any material which the Crown might deploy to undermine the defence case. But we are in no doubt but that in general unlawful acts of the kind done in this case, amounting to a deliberate violation of a suspected person’s right to legal professional privilege, are so great an affront to the integrity of the justice system, and therefore the rule of law, that the associated prosecution is rendered abusive and ought not to be countenanced by the court. In R v Derby Magistrates Court ex p. B [1996] AC 487 . Lord Taylor CJ said: “Legal professional privilege is… much more than an ordinary rule of evidence, limited in its application to the facts of the particular case. It is a fundamental condition on which the administration of justice as a whole rests.” At 507. It is unnecessary to multiply authority to demonstrate the importance which the law attaches to legal professional privilege. It is enough to say that in this area the jurisprudence of the European Court of Human Rights marches with the common law: see Lanz v Austria Case 24430/94, paragraph 50. , S v Switzerland 14 EHRR 670 . , Niemitz v Germany 16 EHRR 97 , paragraph 37. , Brennan v UK 16 October 2001. . The reasoning in this last case shows See paragraphs 58 and 59. that a breach of Article 6 of the European Convention on Human Rights may be constituted by an infringement of the right to confidential legal advice even though it is not shown that in consequence the accused cannot have a fair trial. 55. Now, it is not in general the function of criminal courts to discipline the police See, for example, R v F [1984] QB 278, 289H. . Not every misdemeanour by police officers in the course of an investigation will justify a stay on grounds of abuse. And plainly there are cases where prejudice or detriment to the defendant must be shown; indeed the case where the defendant is denied a fair trial by the prosecutor’s act or omission may be thought a paradigm of abuse of process. Where a fair trial remains possible, faced with an application for a stay on grounds of abuse the court has a balance to strike. On the one hand public confidence in the criminal justice system has to be maintained; and where misconduct by the police or prosecution is shown, that will favour a stay of the proceedings. On the other hand, it is the court’s duty to protect the public from crime, especially serious crime; that consideration may militate in favour of refusal of a stay. For the balancing exercise see Latif [1996] 2 CAR 92 per Lord Steyn at 100 ff. 56. Where the court is faced with illegal conduct by police or State prosecutors which is so grave as to threaten or undermine the rule of law itself, the court may readily conclude that it will not tolerate, far less endorse, such a state of affairs and so hold that its duty is to stop the case. This is well supported by R v Horseferry Road Magistrates Court ex p. Bennett [1994] 1 AC 42 : see in particular per Lord Griffiths at 62 and 64, and Lord Lowry at 77. , to which reference was made in Latif Compare the leading case on entrapment: Looseley [2002] 1 WLR 2060 . : “The speeches in Bennett conclusively establish that proceedings may be stayed in the exercise of the judge’s discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. An infinite variety of cases could arise.” 57. We are quite clear that the deliberate interference with a detained suspect’s right to the confidence of privileged communications with his solicitor, such as we have found was done here, seriously undermines the rule of law and justifies a stay on grounds of abuse of process, notwithstanding the absence of prejudice consisting in evidence gathered by the Crown as the fruit of police officers’ unlawful conduct. Newman J took the same view in Wheel. He had well in mind the gravity of the crime of which the defendant was suspected: “[a] young man has been executed by a brutal shooting” Newman J transcript, 39F. . So of course do we, in this present case. As for prejudice, it is a particular vice of the police conduct in such circumstances as these (as, again, Newman J recognised in Wheel 42E-43A. ) that the court cannot know whether the police misconduct has in fact yielded fruit in the form of evidence, whether directly or indirectly, without enquiry as to what the covert surveillance revealed; but that would further violate the suspect’s right of legal professional privilege. As Newman J said 42G. : “The defendants having an absolute right not to waive the privilege, it cannot be right that the court can force them to do so in order to prove the case for a stay, for to do so would be to effectively take away the very fundamental right which the law has conferred.” 58. In all these circumstances, we conclude that there was abuse of the process here and Astill J should have stayed the proceedings in consequence. We understand it to be accepted that if the court reaches this conclusion, the conviction falls to be treated as unsafe. In those circumstances the appeal will be allowed. GROUNDS 4 AND 5 59. Given this conclusion on grounds 1 and 3 we can deal with grounds 4 and 5, for which as we have indicated the single judge did not give leave, very much more shortly. 60. Ground 4 points to the fact that at no stage during the evidence did counsel for the co-defendants, Sond and Chand, advance a positive case that Dowling had or may have been shot by the appellant (acting with others). No such suggestion was put to the appellant in cross-examination for Sond or Chand, nor did their counsel seek to demonstrate any link between the appellant and for example the suspect Khaktar at or about the time of the shooting. However in their final speeches to the jury counsel for both co-defendants submitted in terms that the appellant may well have been guilty of the conspiracy charged, acting with replacement co-conspirators (“team 2”) supplied by Gill and Khaktar. This is said to have been unfair and unjust and in breach of a duty owed by co-defending counsel to make it plain that they did not accept the appellant’s evidence that he played no part in any conspiracy to kill Dowling. For counsel’s duty, R v Fenlon 71 CAR 307. is relied on. 61. We have transcripts of the co-defendants’ counsel’s speeches (as well of course as the summing-up). We have considered them carefully, but do not find it necessary to cite from them. Mr Rees for the appellant is recorded as interrupting the speech of Sond’s counsel, Mr Crigman QC, to ak him to acknowledge that during the course of the evidence he had not given the appellant any opportunity to deal with the case he was now suggesting to the jury. 62. Ground 5 is to the effect that Astill J failed to make any comment to the jury that the “team 2” theory had not been put to the appellant, or to warn the jury in strong terms that the co-defendants, in advancing such a case, may well have had their own interests to serve. 63. There is no doubt but that the “team 2” theory differed from the prosecution case which, very obviously, sought to implicate rather than exonerate Chand and Sond as co-conspirators with the appellant. Equally there is no doubt that such a theory had not been suggested to the appellant in the course of cross-examination, nor elaborated by the co-defendants in their evidence. Thus the thrust of ground 4 is that the appellant may have been convicted of conspiracy to murder on a factual basis which he had no opportunity to confront; indeed, given the jury’s acquittal of Chand and Sond, it is said that this is the probable state of affairs. 64. Mr Barker submits that the safety of the conviction is not infected by the course taken by co-defending counsel in their closing speeches. There was very powerful evidence implicating the appellant in the conspiracy to kill Dowling, consisting of a piece of paper found at Chand’s address which might readily be thought to associate the appellant with the practicalities of Dowling’s murder. It bears the appellant’s fingerprint (and also, in fact, fingerprints of the co-accused). It has Dowling’s name on it, details of his movements, and details of parts of the layout of the house where he was living. Mr Rees submits that this material could be referable to the earlier conspiracy to assault Dowling which the appellant said he had called off. It is certainly a highly incriminating document. 65. It may well be that (as Mr Barker submitted) it was only after the appellant had been cross-examined on this document by the Crown that any pressing need to advance the “team 2” theory was perceived by co-defending counsel. It may be that Mr Rees could have sought and obtained the judge’s leave to have the appellant recalled after the speeches for the theory to be put to him in further cross-examination. He might have sought the judge’s permission to address the jury a second time (the appellant being first on the indictment, he had made the first defence speech). However that may be, it seems to us very probable - as Mr Rees was disposed to acknowledge - that if he had been cross-examined about it the appellant could have done no more than reply with a bare denial. The suggestion that the appellant has been convicted on a factual basis which he had no opportunity to confront has more appearance than reality. 66. Mr Rees submits that if it had been clear at an earlier stage that the co-accused were going to mount a “cut-throat” defence, there was unused material which he might have deployed to implicate Sond: not least telephone records showing Sond in contact with Birmingham criminal who had access to firearms. But it must be questionable how far such material would have assisted the appellant rather than merely undermined Sond’s defence. 67. The judge might have done better to make some observation to the jury as to the possible motivation of the co-accused in running the “team 2” theory, but we greatly doubt that it was imperative that he should comment upon what was, after all, not evidence, but a scenario being put forward by counsel. 68. In all the circumstances we have concluded that we would not have allowed this appeal against conviction if grounds 4 and 5 had stood alone, and we will refuse leave to appeal in respect of them.
{"ConvCourtName": ["Lincoln Crown Court"], "ConvictPleaDate": ["25 June 2003"], "ConvictOffence": ["conspiracy to murder."], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Lincoln Crown Court"], "Sentence": ["18 years imprisonment."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["Chand’s address"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["appellant’s wife’s lover."], "VictimType": ["victim, Ian Dowling,"], "VicNum": ["victim, Ian Dowling,"], "VicSex": ["man called Ian Dowling."], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["rented a house"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["paper found at Chand’s address", "incriminating document.", "pattern of phone", "dealing with “collateral intrusion”"], "DefEvidTypeTrial": ["appellant’s fingerprint"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["two others, Chand and Sond,"], "AppealAgainst": ["against his conviction"], "AppealGround": ["to the trial judge to stay the proceedings as abusive."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["refuse leave to appeal in respect of them."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["would not have allowed this appeal against conviction if grounds 4 and 5 had stood alone, and we will refuse"]}
{"ConvCourtName": ["Lincoln Crown Court"], "ConvictPleaDate": ["2003-06-25"], "ConvictOffence": ["conspiracy to murder."], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Lincoln Crown Court"], "Sentence": ["18 years imprisonment."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["incriminating document.", "paper found at Chand’s address", "Admissibility of evidence", "pattern of phone"], "DefEvidTypeTrial": ["appellant’s fingerprint"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["2"], "AppealAgainst": ["against his conviction"], "AppealGround": ["to the trial judge to stay the proceedings as abusive."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["would not have allowed this appeal against conviction if grounds 4 and 5 had stood alone, and we will refuse"]}
512
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 1557 CASE NOS 202203269/B3 & 202203459/B3 Royal Courts of Justice Strand London WC2A 2LL Thursday, 5 October 2023 Before: LORD JUSTICE EDIS MRS JUSTICE STACEY DBE HIS HONOUR JUDGE LEONARD KC (Sitting as a Judge of the CACD) REX V KEITH MCCARTHY __________ 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 MOHABIR appeared on behalf of the Applicant _________ J U D G M E N T 1. LORD JUSTICE EDIS: The applicant in this case, Keith McCarthy, now renews his application for leave to appeal against conviction and sentence following refusal by the single judge. 2. The applicant was convicted of murder (count 1) and causing grievous bodily harm with intent (count 3) by the jury on 20 October 2022. In relation to murder he was sentenced to life imprisonment with a minimum term of 22 years, less 309 days spent awaiting extradition from the Republic of Ireland. Ten years' imprisonment concurrently was imposed in relation to count 3. 3. On an earlier occasion he had entered guilty pleas to causing serious injury by dangerous driving (count 4) and causing death by dangerous driving (count 5). No separate penalty was imposed in relation to those two offences which may have been an error of law in that mandatory disqualification from driving was required. 4. At all events, the hearing today has revealed a degree of uncertainty about the way in which these allegations were dealt with. We consider that it is necessary that that uncertainty should be resolved before final decisions are taken in relation to the suggested unsafety of the two convictions following verdicts returned by the jury. 5. We therefore propose to give leave to appeal against conviction in terms which we shall explain in a moment and to adjourn the application for leave to appeal against sentence to the full court which will deal with the conviction appeal. 6. The allegation arises from the death of Kerrin Repman on 15 April 2020. Mr Repman died when the appellant's BMW motorcar collided with the rear of a scooter on which he was riding on a road in Marine Parade, Harwich in Essex. The prosecution case was that that collision occurred because the appellant chased Mr Repman in his BMW car at high speed intending to cause him at least really serious harm. Count 3 arose because in the collision which caused Mr Repman's death, his scooter was caused to travel onto the pavement, striking and seriously injuring a bystander, Peggy Lawrence, who is the victim of that allegation. 7. The grounds of appeal as settled make two complaints. First, it is alleged that the judge erred in admitting two previous convictions for offences related to the use of weapons. One of these, from 2011, was an allegation of wounding with intent to do grievous bodily harm using a knife. The second was an allegation of threatening a person with a bladed article. That was more recent. 8. We consider that the full court should consider the basis on which these previous convictions were admitted and also whether the direction which the judge gave about them adequately described any potential significance they may have had for the benefit of the jury. The conviction from 2011 may arguably have been admissible on the question of whether the appellant's admittedly dangerous driving was being perpetrated with an intention to cause really serious harm or not, which was the issue before the jury on counts 1 and 3. Arguments against its admissibility may have included its age and an assessment of the strength of the case without it, whether it had the effect of bolstering a case which on the issue of intent was weak. We do not of course adjudicate on the merits of any of those arguments or indeed seek to limit the grant of leave which we give on this ground to those arguments alone. Different considerations may well apply to the second and more recent conviction in which no violence of any kind was actually used. 9. We therefore give leave in relation to the ground complaining about the admissibility and use of bad character evidence in this case. One difficulty which we have encountered in dealing with this ground this morning is that the facts of the 2011 case were apparently reduced to admissions which were placed before the jury. We have not been able to lay our hands on a copy of that document and neither has counsel, so we do not know what the jury actually knew about the 2011 conviction and we are unable therefore to consider the submission that the facts were particularly prejudicial and should not have been before the jury. We do not know whether they were or not. 10. The submission of no case to answer was dealt with by the judge in a written ruling which we have read. He did not deal with the evidence on which the prosecution relied in any detail at all. He did summarise the prosecution case for the jury in his written directions dated 18 October 2022 at paragraph 21. We are working on the basis that the evidence there summarised, which we note does not include the bad character evidence, was the evidence which he held when dealing with the submission of no case to amount to a case to answer on murder. 11. We are persuaded by Mr Mohabir of counsel, who has appeared before us pro bono on behalf of the appellant and for whose assistance we are grateful, that this ground is also arguable and we give leave. 12. In addition to the two pleaded grounds of appeal which we have dealt with, a further complexity has become increasingly apparent during the course of the hearing this morning. As we have explained, the allegations of which the appellant was convicted, whether by the jury or on his own plea, were counts 1, 3, 4 and 5 on the indictment. Count 2 was a count of manslaughter. Manslaughter was not, it would seem, left to the jury. We have read the summing-up which makes that plain. The count 2 referred to in the summing-up is what we have hitherto referred to in this judgment as count 3, namely the allegation of causing grievous bodily harm to Peggy Lawrence with intent. 13. We do not really know what has happened to the count of manslaughter before the trial. It may be that there is an arguable ground of appeal based on the failure to leave manslaughter to the jury on the facts of this case. We cannot consider the merits of any such ground in advance of its being properly formulated and placed before the court with reference to all relevant transcripts and other documents to explain what has happened. This process will require the participation of the prosecution and the defence. 14. What we would therefore propose to do is to give directions so that any further ground of appeal on which the appellant wishes to rely must be lodged with the court together with an appropriate and accurate account of how manslaughter was treated in this trial and before the trial, with all relevant documents, by 2 November. The prosecution must respond by 7 December and we will direct that the question of whether leave to argue that additional ground of appeal should be determined by the full court at the hearing of the grounds of appeal for which we have given leave. Both parties should prepare for the case on the basis that if leave is granted the ground of appeal will be determined at that same hearing by the same court. 15. In relation to the two grounds for which leave has been granted, we will direct that a skeleton argument should be lodged by the appellant by 2 November. That skeleton argument can therefore also deal with any proposed new third ground of appeal and the prosecution must respond by 7 December to those two grounds as well as to any new third ground. The case can then be listed for hearing in the first term of 2024. The appellant will be aware that he faces a very substantial sentence of imprisonment whatever the outcome of this appeal and in those circumstances it is unnecessary to direct that the listing of the appeal requires expedition. It is more important in our judgment that the case comes before the court fully prepared and in proper order, than that it comes before the court as a matter of urgency. 16. Is there anything else you think we need to deal with, Mr Mohabir? 17. MR MOHABIR: In relation to directions my Lord, no. As an ancillary matter, my Lord, leave having been granted, there has already been a substantial amount of work between counsel, the Criminal Appeals Office and the like. My application in the circumstances is that it would be preferential for all four counsel to work together to try and have a brief document before the court, particularly in relation to the chronology. I know I have been working with Mr Malik and Mr Espree (?) on behalf of the Crown, as respondent. My application in short is for legal aid to be extended for the services of myself and also Miss Bickerstaff KC. 18. LORD JUSTICE EDIS: We will consider that. Obviously you are entitled to a representation order for today because you have succeeded in getting leave. The question is whether your representation order for the future should be for you, or for Miss Bickerstaff KC or for both of you. Obviously it is a matter for the prosecution who and how many they instruct. That is not our concern. Is there anything you would like to say about whether the representation order for the future should be for leading counsel or junior counsel or both? 19. MR MOHABIR: My Lord, I would respectfully say in such a serious case where legal aid was extended for both counsel at the lower court, although the issues are far more refined and a lot of work has been done already by me and the input by Miss Bickerstaff KC in this case would be limited so far as public purse is concerned but more importantly if the Crown are to respond in this case with Mr Malik KC, in my respectful submission in such a serious case Miss Bickerstaff - certainly Mr McCarthy should be availed of her services certainly for the hearing to argue the points. I anticipate I will be doing most of the work with her oversight. 20. LORD JUSTICE EDIS: Thank you. We will just retire. 21. (Short adjournment) 22. LORD JUSTICE EDIS: Yes, Mr Mohabir we will grant a representation order in this case for leading and junior counsel. Obviously your representation order is backdated for the work you have done to date, but Miss Bickerstaff's will not be; her representation order starts today. 23. MR MOHABIR: Thank you, my Lords and my Lady. 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]
{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["grievous bodily harm with intent (count 3)", "murder (count 1)", "causing death by dangerous driving (count 5).", "serious injury by dangerous driving (count 4)"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["entered guilty pleas"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["data not available"], "Sentence": ["Ten years' imprisonment concurrently was imposed in relation to count 3.", "life imprisonment with a minimum term of 22 years, less 309 days spent awaiting extradition"], "SentServe": ["concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["his"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["death of Kerrin Repman"], "VicNum": ["Mr Repman died", "death of Kerrin Repman", "bystander, Peggy Lawrence, who is the victim"], "VicSex": ["Mr"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["submission of no case to answer", "prosecution case was that that collision occurred because the appellant chased Mr Repman in his BMW", "injuring a bystander,"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["intending"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["applicant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal against conviction and sentence"], "AppealGround": ["degree of uncertainty about the way in which these allegations were dealt", "alleged that the judge erred in admitting two previous convictions for offences related to the use of weapons.", "the admissibility and use of bad character evidence in this case"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["grounds of appeal for which we have given leave.", "all relevant documents, by 2 November. The prosecution must respond by 7 December", "The case can then be listed for hearing in the first term of 2024."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["Don't know"], "ConvictOffence": ["causing death by dangerous driving (count 5).", "serious injury by dangerous driving (count 4)", "grievous bodily harm with intent (count 3)", "murder (count 1)"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["data not available"], "Sentence": ["Ten years' imprisonment concurrently was imposed in relation to count 3.", "life imprisonment with a minimum term of 22 years, less 309 days spent awaiting extradition"], "SentServe": ["Concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Don't know"], "VictimType": ["Individual person"], "VicNum": ["1 of 1", "1 of 2", "2 of 2"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["submission of no case to answer", "Victim testimony", "Testimony"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["Harm intentional"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal against conviction and sentence"], "AppealGround": ["the admissibility and use of bad character evidence in this case", "alleged that the judge erred in admitting two previous convictions for offences related to the use of weapons.", "degree of uncertainty about the way in which these allegations were dealt"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Other-Conditional", "grounds of appeal for which we have given leave.", "The case can then be listed for hearing in the first term of 2024."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
439
Neutral Citation Number: [2010] EWCA Crim 973 Case No: 201000411 C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 22nd April 2010 B e f o r e : LORD JUSTICE STANLEY BURNTON MR JUSTICE TUGENDHAT RECORDER OF BRADFORD HIS HONOUR JUDGE STEWART QC (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v SANJAY VYAS - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Miss C O'Connor appeared on behalf of the Appellant Mr G Mohabir appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (As approved) 1. LORD JUSTICE STANLEY BURNTON: On 11th December 2009, at Southwark Crown Court before His Honour Judge Stone QC and a jury, the appellant was convicted by a majority of sexual assault and he was subsequently sentenced to 18 months' imprisonment. The normal order of Schedule 3 of the Sexual Offences Act applied and he was ordered to pay a sum by way of costs. He appeals against his conviction by leave of the single judge. 2. The incident which formed the subject of the indictment took place in the early hours of 21st November 2008 on a train that began at Kings Cross St Pancras Station in London and went at least to St Albans, if not beyond. Both the appellant and the complainant boarded that train at about 3.20 in the morning. They had both been waiting on the platform. The complainant had been sleeping on the platform bench for some time. The appellant sat down next to her a few minutes before the train arrived. The complainant is a young lady who had been drinking earlier in the evening. She entered the first carriage and sat down next to the window in the first set of four seats. There was one other person in the carriage and he was asleep. Shortly afterwards the appellant, who had entered the third or fourth carriage, walked back through the train and entered her carriage and sat down on the sit opposite her. She was resting her foot on the seat opposite. The prosecution case was that the appellant proceeded to take hold of the foot and massage it and continued to engage in what was in fact sexual activity towards her until he got off the train at Mill Hill station. She remained on the train until St Albans. 3. When she got off the train she caught a taxi to go to the police station. She found it was closed. She rang her mother in a state of some distress and then rang the police. She complained on the telephone to the police that the appellant had molested her on the train. 4. The appellant attended the police station, where he was arrested and interviewed subsequently. He declined to answer any questions put to him and relied on a prepared statement, which read: "I wish to deny the allegation of sexual assault which occurred on a train between St Pancras International and Mill Hill Broadway stations on 21st November 2008.” In March 2009 he returned to the police station following the discovery of semen bearing his DNA on a sock of the complainant. He was told of that and was interviewed for a second time. He again declined to answer any questions put to him. He again relied on a prepared statement, which read: "I wish to deny the allegation of sexual assault, save to say that any sexual touching was by the consent of both parties." 5. The case for the prosecution was that the appellant had sexually assaulted the complainant by touching her thigh, bottom and groin and placing her hand on his penis. He knew she had not consented to such sexual activity as she kept pulling away from him. His case was that she had consented to his massaging her foot. Apart from that, there was no sexual contact between them. He had masturbated himself. She had not objected, indeed consented, following which he touched her foot which resulted in his DNA being found on her sock. 6. The principal and crucial evidence of course was that of the complainant, who described how she had got on the train, where she had sat, that a man had entered the carriage and sat down opposite her, that of course, it was common ground, was the appellant. She described what he had done in terms of picking up her foot and putting it in his lap and so on. She said she felt uncomfortable and did not want to make a scene and pretended to fall asleep again. He had rubbed her foot up and down his inner thigh and into his groin before putting her sock and shoe back on. She said she was tired and groggy and did not remember him removing her sock and she had found him rubbing his hand up and down her thigh. He leant forward and rubbed her bottom with his left hand before touching her groin and around her vagina. She said that she forcefully moved away from him and then pulled up her legs so that she was curled up in a ball on the seat. He moved onto the seat next to her, took hold of her hand and began stroking it. She described what had happened, including his forcing her hand into his groin and trying to put her hand into his trousers. She thought that she had felt his penis. He got off the train at Mill Hill station. She said that she was upset once he got off the train. When she got off the train, and it was shown from CCTV, she did not attempt to speak to any staff who were on the platform at St Albans, but her evidence that she had gone to the police station in a taxi was not challenged. The police station was closed, it being the middle of the night. She then spoke to her mother, following which she made a complaint to the police. 7. Her mother also gave evidence, as did the appellant. His case was that, although he had never met the complainant before, she had agreed to what had taken place, including his masturbating himself which resulted in his ejaculation. Throughout what had occurred there was no indication on the part of the complainant that she was unhappy. In brief, his defence was consent. 8. The complainant was cross-examined at some length. There were undoubtedly a number of inconsistencies in her evidence, in particular as to whether or not she fell asleep during the journey between Kings Cross St Pancras and Mill Hill and whether she knew that her sock had been taken off or not. On her evidence also there was no explanation of how the semen came to be on her sock, which undoubtedly it did. It is also said that she had an opportunity while on the train after the appellant had left the train to inform her mother what had happened. She received a text message from her mother asking about her and whether she was all right and her reply was simply "I am on the train on the way home", and it was only after she had arrived at St Albans that there appears to have been any complaint. 9. The ground of the appeal is that the summing-up was unfair, unbalanced and failed to direct the jury and to remind the jury of the significant points made on behalf of the appellant during the cross-examination. We accept that this summing was a defective -- indeed, a very defective -- summing-up. The appellant was entitled to have the jury reminded by the judge in the summing-up of the significant points made during the course of the cross-examination of the complainant, and in particular on any matters which would indicate unreliability in her evidence, and we have just referred to the principal ones relied on on this appeal. 10. It is said on behalf of the prosecution that the summing-up was balanced because the judge did not remind the jury of the cross-examination of the appellant either. That does not cure the defect in the summing-up resulting from his failure to deal with the cross-examination of the complainant. 11. The summing-up was so defective that the judge did not, until reminded by counsel, direct the jury as to the burden and standard of proof required in a case such as this. Happily, that defect in the summing was remedied. But when asked by Miss O'Connor, who quite properly complained to the judge that the points she had made during her cross-examination of the complainant had not been put to the jury, the judge said, astonishingly, that it was not his practice to do so. So on this appeal the appellant starts from the position in which we accept that the summing-up was defective. 12. However, the question for us is whether the conviction was unsafe. It is true that there were inconsistencies in the account of the complainant. However, all the points that have been made so powerfully before us today by Miss O'Connor were made during the course of cross-examination, and no doubt in her speech. The complainant had given evidence on a Tuesday, 8th December. The appellant had given evidence on the following day and the summing-up was on Thursday, 10th December, so that all these points and the evidence in cross-examination of the appellant would have been fresh in the minds of the jury. The case against the appellant was very powerful indeed. On his case, a young lady in the early hours of the morning, admittedly having had some drink, gets into a train and begins a sexual encounter with a man considerably older for no reason at all. Having agreed to a sexual encounter, she gets off the train and almost the first thing she does is to take a taxi to the police station. She is thereafter in a state of distress, and it is difficult to see of any reason why, if she had agreed to a sexual encounter, she should then have gone to the police station. 13. In our judgment, although the complaints as to the summing-up are well-founded, this is a case in which the matters relied on are of a kind which would have been fully in the mind of the jury. The case against the appellant being so powerful, we have no doubt that this conviction was and is safe notwithstanding the defects in this summing-up. The vagaries in the evidence of the complainant are not surprising having regard to the fact that this matter happened when she had had some drink, when she was tired and when no doubt, on her case at least, there was a degree of concern, worry and tension as to what was happening to her. It is not to be expected that there will be perfect recollection in such circumstances. The issue in this case was not precisely what had happened, nor was there the issue as to whether or not there had been a sexual encounter, the only issue was consent. So far as that is concerned, the evidence, in our judgment, was overwhelming. In those circumstances, the appeal is dismissed.
{"ConvCourtName": ["Southwark Crown Court"], "ConvictPleaDate": ["11th December 2009"], "ConvictOffence": ["sexual assault"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["I wish to deny the allegation"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Southwark Crown Court"], "Sentence": ["18 months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["ordered to pay a sum by way of costs"], "OffSex": ["he"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["he had never met the complainant before"], "VictimType": ["Both the appellant and the complainant"], "VicNum": ["complainant"], "VicSex": ["her"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["had been drinking earlier in the evening."], "ProsEvidTypeTrial": ["The incident which formed the subject of the indictment took place in the early hours of 21st November 2008 on a train that began at Kings Cross St Pancras Station in London and went at least to St Albans, if not beyond. Both the appellant and the complainant boarded that train at about 3.20 in the morning. They had both been waiting on the platform. The complainant had been sleeping on the platform bench for some time. The appellant sat down next to her a few minutes before the train arrived. The complainant is a young lady who had been drinking earlier in the evening. She entered the first carriage and sat down next to the window in the first set of four seats. There was one other person in the carriage and he was asleep. Shortly afterwards the appellant, who had entered the third or fourth carriage, walked back through the train and entered her carriage and sat down on the sit opposite her. She was resting her foot on the seat opposite. The prosecution case was that the appellant proceeded to take hold of the foot and massage it and continued to engage in what was in fact sexual activity towards her until he got off the train at Mill Hill station. She remained on the train until St Albans. 3. When she got off the train she caught a taxi to go to the police station. She found it was closed. She rang her mother in a state of some distress and then rang the police. She complained on the telephone to the police that the appellant had molested her on the train.", "DNA", "Her mother also gave evidence"], "DefEvidTypeTrial": ["wish to deny the allegation of sexual assault", "his defence was consent.", "7. Her mother also gave evidence, as did the appellant.", "any sexual touching was by the consent of both parties", "I wish to deny the allegation of sexual assault"], "PreSentReport": ["data not available"], "AggFactSent": ["early hours"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["the appellant was convicted"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeals against his conviction"], "AppealGround": ["ground of the appeal is that the summing-up was unfair, unbalanced and failed to direct the jury and to remind the jury of the significant points made on behalf of the appellant during the cross-examination", "The summing-up was so defective that the judge did not, until reminded by counsel, direct the jury as to the burden and standard of proof required in a case such as this."], "SentGuideWhich": ["Schedule 3 of the Sexual Offences Act"], "AppealOutcome": ["dismissed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The issue in this case was not precisely what had happened, nor was there the issue as to whether or not there had been a sexual encounter, the only issue was consent. So far as that is concerned, the evidence, in our judgment, was overwhelming. In those circumstances, the appeal is dismissed."]}
{"ConvCourtName": ["Southwark Crown Court"], "ConvictPleaDate": ["2009-12-11"], "ConvictOffence": ["sexual assault"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Southwark Crown Court"], "Sentence": ["18 months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["ordered to pay a sum by way of costs"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Stranger"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Female"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Yes-drinking"], "ProsEvidTypeTrial": ["victim's mother gave evidence", "DNA", "victim testimony"], "DefEvidTypeTrial": ["his defence was consent.", "offender testimony", "any sexual touching was by the consent of both parties", "Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["early hours"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeals against his conviction"], "AppealGround": ["judge failed to instruct jury when needed", "ground of the appeal is that the summing-up was unfair, unbalanced and failed to direct the jury and to remind the jury of the significant points made on behalf of the appellant during the cross-examination"], "SentGuideWhich": ["Schedule 3 of the Sexual Offences Act"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["judge did fail to summarise correctly and instruct the jury, but the conviction is still safe as the question was about consent"]}
545
No: 200605827 A9 Neutral Citation Number: [2007] EWCA Crim 3432 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 24th July 2007 B e f o r e : LORD JUSTICE MOSES MR JUSTICE TREACY MR JUSTICE BEATSON - - - - - - - - - - - - - - - - - - - - - R E G I N A v KEVIN RAYMOND ROSE - - - - - - - - - - - - - - - - - - - - - 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 M Hurst appeared on behalf of the Applicant J U D G M E N T 1. LORD JUSTICE MOSES: We say straight away that we shall grant leave in this application and, subject to the usual directions I shall give later, we shall consider this as an appeal. 2. This appellant, as he now is, was sentenced to 30 months' imprisonment in October 2006 at Nottingham Crown Court after he had been convicted of three counts of possession of criminal property contrary to section 329(1) (c) and 334 of the Proceeds of Crime Act 2002 . We shall not lengthen this judgment by setting out the full terms of the provisions but they are important to our consideration of the appropriate sentence following that trial. The important aspect of the offence is that it is committed where a person suspects that property constitutes or represents his own or another's benefit from criminal conduct (see section 340(3)(b)). It can be also be committed where someone knows that that is so but in the instant case what was alleged against this appellant and that of which the jury found him guilty was that he had suspected that three different large items of importance to the losers were on his property and that he suspected that they were proceeds of crime. 3. He had bought a farm near Retford in Nottinghamshire. The previous occupier had allowed equipment to be kept on his land and this appellant, once he had bought the farm, allowed that to continue. He said, as he said at trial and as is confirmed in the advice written on his behalf, that it was not uncommon for vehicles to be left without prior notification. That was an important plank in the prosecution's case against him for this reason. On the morning of 16th June 2005, a brewer's dray (that is a lorry and trailer) were stolen and the very same day was parked at the applicant's farm while he was out; in other words those who had removed those items of equipment knew where they could safely be stored. The trailer had a small proportion of its original load. The cab was found burnt out elsewhere. 4. The police, in executing a search warrant on the same day, found two other significant items for commercial use on that farm: a JCB Teleporter, stolen on about 13th June (in other words a month later) and a HGV trailer unit with kegs and cases of alcohol and soft drinks stolen on the morning of 16th June, and that is the subject matter of the first count. The horse trailer, of course, was not a commercial item but was no doubt of importance to those keeping the horse and had been stolen about a month before. The applicant never admitted that he had suspected that any of those items were the proceeds of crime but in interview he told that which turned out to be a lie because he said that the horse trailer that was stolen about a month before had been bought by him. It turned out that it had not and he had his dates wrong and that by the time he was saying it was bought it had been not yet stolen. 5. The other significant aspect of the facts to which we ought to draw attention is the value of these items, which amounted to £27,272: the horse trailer £1,750, the JCB Teleporter £10,000 and the lorry trailer and its contents £15,522.50, all save possibly the horse trailer of importance and use to the commercial owners of that property. 6. There is, however, a somewhat unusual aspect of this case. This appellant is now 49. He was, we believe, 48 at the time of these offences. He was a motorcar dealer and, when the police checked at his motorcar premises, it is significant to observe that nothing untoward was found. He was a man who not just had never been in trouble before but also had a positively good character, as witnessed by a number of those who wrote to the court speaking highly of him. The pre-sentence report records his persistent denial of his guilt and attributed his behaviour to a lapse of judgment but it recorded the likelihood of reoffending was very low and recommended a suspended sentence order with a requirement of unpaid work. 7. In helpful submissions advanced on his behalf today by Mr Hurst, he sensibly concedes that this case did cross the custody threshold. It was a powerful point against this applicant that those who had taken the brewer's dray knew where to take it to and also that the items were of important commercial use to their losers, certainly two of them, and were of value, not just monetary value, to them. It is for those reasons that the case crossed the custody threshold. As will be obvious from the nature of the offence, the use of these offences to catch those who have stolen property on their land is obviously sensible. It obviates the need to prove that those in possession of stolen property knew or believed it was stolen. The question then arises as to whether and what the appropriate level of sentencing is in relation to those who are not handlers of stolen property but nevertheless guilty of an offence under the Proceeds of Crime Act 2002 which, it should be noted, has the same maximum sentence as that which is imposed on handlers of stolen property. Mr Hurst invited this court to take the opportunity to set out guidelines for appropriate sentencing for cases of that sort. We decline to do so, although we observe that if the deployment of these sections is frequent it may be profitable that someone should do so in the future. But we are assisted, nevertheless, by another guideline case, which was R v Bernard Webbe [2002] 1 Cr.App.R(S) 22 at page 82, which set out guidelines in relation to handling stolen goods. It endorsed the Sentencing Panel's identification of aggravating features, two of which apply in this case, namely the closeness of the handler, in this case the one who suspects that the goods are the proceeds of crime, to the primary offence and the high value of goods to the loser; in this case the high value is not merely attributable to value but also to use in trade. The court in that case took the view that the appropriate range of sentences in the more serious cases were between 12 months to four years and in less serious cases the case could be prosecuted before the Magistrates, but that would be where the property was only £10,000 (see paragraph 16). 8. We take the view, guided by comparison with the usually more serious offence of handling stolen goods, that 30 months imprisonment for a man with this character was manifestly excessive. We take the view that the sentence ought to have reflected the fact that he had not been convicted of handling stolen goods and that he was otherwise a man of good character. We do not think that the sentence did so. We think that a sentence of 12 months' imprisonment on each of these offences to run concurrent would adequately reflect the gravity of these offences. After all, to send a man to prison for the first time in his life aged 48 will have a serious impact upon him, upon his family and in teaching these who are interested that these offences are not to be taken lightly. 9. For all the reasons that we have given, we grant permission to appeal, we allow the appeal and we dispose of the appeal in those terms, by reducing the sentence of two and-a-half years in total to one of 12 months' imprisonment, made up of 12 months imprisonment on each of those three counts to run concurrently.
{"ConvCourtName": ["Nottingham Crown Court"], "ConvictPleaDate": ["October 2006"], "ConvictOffence": ["possession of criminal property"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Nottingham Crown Court"], "Sentence": ["30 months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["48"], "OffJobOffence": ["motorcar dealer"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["police, in executing a search warrant"], "DefEvidTypeTrial": ["his persistent denial of his guilt"], "PreSentReport": ["likelihood of reoffending was very low"], "AggFactSent": ["closeness of the handler", "value of these items"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["the sentence"], "AppealGround": ["whether and what the appropriate level of sentencing is in relation to those who are not handlers of stolen property but nevertheless guilty of an offence under the Proceeds of Crime Act 2002"], "SentGuideWhich": ["section 329(1)(c) and 334 of the Proceeds of Crime Act 2002"], "AppealOutcome": ["reducing the sentence of two and-a-half years in total to one of 12 months' imprisonment, made up of 12 months imprisonment on each of those three counts to run concurrently."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["We take the view that the sentence ought to have reflected the fact that he had not been convicted of handling stolen goods and that he was otherwise a man of good character. We do not think that the sentence did so."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["Nottingham Crown Court"], "ConvictPleaDate": ["2006-10-01"], "ConvictOffence": ["possession of criminal property"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Nottingham Crown Court"], "Sentence": ["30 months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["48"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Police evidence"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Low risk of reoffending"], "AggFactSent": ["closeness of the handler", "Financial gain /value"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["the sentence"], "AppealGround": ["whether and what the appropriate level of sentencing is in relation to those who are not handlers of stolen property but nevertheless guilty of an offence under the Proceeds of Crime Act 2002"], "SentGuideWhich": ["section 329(1)(c) and 334 of the Proceeds of Crime Act 2002"], "AppealOutcome": ["reducing the sentence of two and-a-half years in total to one of 12 months' imprisonment, made up of 12 months imprisonment on each of those three counts to run concurrently."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["We take the view that the sentence ought to have reflected the fact that he had not been convicted of handling stolen goods and that he was otherwise a man of good character. We do not think that the sentence did so."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
417
No: 2005/1754/D2 Neutral Citation Number: [2006] EWCA Crim 1721 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 28 June 2006 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE LATHAM) MR JUSTICE FORBES MR JUSTICE IRWIN - - - - - - - R E G I N A -v- BARRINGTON MOSES - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS A WORRELL QC appeared on behalf of the APPELLANT MR P GARLICK QC and MR I DIXEY appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: On 6th March 1997 in the Crown Court at Gloucester before Harrison J, the appellant was convicted of murder and sentenced to life imprisonment. The matter comes before us today on a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995 and the reference is based upon what the Commission identified at the date that it made the reference as a possible misdirection by the judge as to provocation in relation to the facts of the case at that time. 2. To understand the matter it is necessary to say something, albeit very shortly, about the facts of the case. The appellant had been involved in a relationship with the deceased for some months in 1995 and she had ended the relationship on Boxing Day 1995. However, he attempted to resume that relationship and during the early months of 1996 there were meetings between them. 3. On Sunday 24th March 1996 the police received an emergency call from a phone box in which the appellant said that he had killed his ex-girlfriend. He said that he had snapped after she told that someone else was better (meaning better sexually) than he was and had drowned her in the bath. When police officers attended the deceased's flat they found her lying on the floor with a dressing gown over her, her hair was wet. It was apparent there had been an attempt at strangulation. Semen was present in her body which suggested intercourse either shortly before or possibly after death. 4. In his interview with the police the appellant gave an account of having had consensual intercourse with her, after which he asked her whether another friend of hers was a better lover than he was and she said yes. His account was that the next he knew she was in the bath with her eyes wide open, and dead. 5. Shortly before trial the appellant changed that account to an account in which he accepted that he had in fact had intercourse with her after her death. 6. Be that as it may, the issue before the jury at trial was essentially based upon medical evidence directed to the question of whether or not at the time of committing the killing the appellant was suffering from diminished responsibility so as to justify a verdict of manslaughter. By reason of the nature of the evidence given by the appellant and his account to the police both immediately after the incident and in interview, it was clearly necessary for the judge to give a direction on provocation. In that direction, he asked the jury to consider, first, whether the appellant had in fact lost his self-control, and then said: "... may that conduct be such as to cause a reasonable and sober person, of the defendant's age and sex, to do as he did? Now a reasonable person is simply a person who has that degree of self-control which is to be expected of the ordinary citizen who is sober and is of the defendant's age and sex. When considering that question, you must take into account everything which was said and/or done, together with the circumstances in which it was said and/or done, according to the affect which in your opinion it would have on that other person." 7. The Criminal Cases Review Commission accepted in its reference to this court that that direction was entirely in accordance with the case law on section 3 of the Homicide Act 1957 at that time following the judgments of the House of Lords in DPP v Camplin [1978] AC 705 and R v Morhall [1996] AC 90 . However, at the time that the Criminal Cases Review Commission made its reference, the decision of the House of Lords in R v Smith (Morgan) [2001] 1 AC 146 suggested that this was an inadequate direction. The jury were entitled to consider in relation to the second question the characteristics of the particular defendant. The Commission concluded not only on the evidence that had been available at the trial of the appellant but also by reason of material that had been obtained since trial that there were two aspects of the appellant's personality which could have been relevant to a direction in accordance with the House of Lords' judgment in Smith , namely that he was suffering from clinical depression at the time and that he had an over-controlled personality. The Commission accordingly considered that had the jury been asked the second question on the basis that it was entitled to take into account those two aspects of the appellant's condition, the jury may not have concluded, as it undoubtedly did, that the prosecution had disproved provocation in the present case. That is particularly in the context of the appellant suggesting that he was particularly sensitive about his masculinity and therefore any answer by the victim in relation to the relative sexual prowess of the appellant and any other lover might have been a matter which was again of relevance in determining whether the prosecution had disproved provocation in his case. 8. Unhappily for the appellant, since the reference by the Commission events have overtaken this appeal. First of all, in HM for Jersey v Holley the Privy Council determined that the law as it had been understood at the time that the judge in the present case gave the direction was correct and that the decision of the House of Lords in Smith should no longer be held to represent correct law. This court has subsequently considered in the case of James and Karimi [2006] 1 All.ER 759 the apparent conflict between the decision of the Privy Council and the decision of the House of Lords and concluded that the courts should follow the decision in the Privy Council as representing the authoritative statement of the law in relation to provocation. 9. Accordingly, the present position is that the direction given by Harrison J in the present case was not only in accordance with the law at the time that it was given, but is now clearly, on the authority of Holley , a correct direction in the light of the law as stated in that case. 10. Miss Worrell, in a determined and imaginative effort to circumvent the difficulty that it seems to us is presented by that statement of the position, has sought to argue that by virtue of the provisions of articles 5 and/or 6 and/or 7 of the European Convention on Human Rights it could be said that the way in which the law was differently determined by the courts between the time of Harrison J's direction and now, indicates that there is such uncertainty about the position that effectively to apply the law as stated in Holley is an unstable basis upon which to determine what the law now is and accordingly does not comply with the requirements of certainty in article 7 and in particular, if it is to be applied on the basis that Holley now represents the appropriate test, is effectively a retrospective change in the law which falls foul again of article 7. 11. If we return to the way in which we indicated that the matter has in fact developed, we hope that it is self-evident that those arguments cannot succeed. The direction given by Harrison J, as we have said, was entirely in accordance with the law as understood at that time. It is entirely in accordance with the law as stated in Holley and as affirmed in James and Karimi . The only question, in our judgment, which can arise is whether on any appeal from James and Karimi based upon the questions certified in that case as to the correct approach to the conflict between the Privy Council decision and the House of Lords' decision the answer is ultimately answered by re-asserting the decision of the House of Lords in Smith . In that case, of course, the question which was referred to this court by the Criminal Cases Review Commission will become live again. But on the authorities as they stand there is no alternative, in our view, but to dismiss this appeal. 12. So far as the consequential application which Miss Worrell makes that we should certify a question or questions for the House of Lords is concerned, it seems to us that as we have indicated the ultimate answer to this reference depends upon whether or not the House of Lords is prepared to re-visit the matter once again and in order to cover that possibility it seems to us that the right thing is to certify the same questions as were certified in James and Karimi but to refuse leave to appeal. 13. MISS WORRELL: Would your Lordships be prepared to certify any question based on article 7(1)? 14. THE VICE PRESIDENT: No. That was a brave attempt but I do not think there is any substance in it at all, Miss Worrell. 15. MISS WORRELL: May I say this, that in relation to this appellant the fact that you have certified the same questions is of tremendous assistance to him. 16. THE VICE PRESIDENT: At least it means it keeps alive the issue so if in fact the House of Lords does re-visit this yet again then he will not be disadvantaged. That is the point. 17. MISS WORRELL: My Lord, I think I need to ask for a representation order for the House of Lords? 18. THE VICE PRESIDENT: That is absolutely right and you can have a representation order for the moment limited to any petition that you may wish to make for leave to appeal and then, if granted, for the appeal. That should be for leading and junior counsel and solicitor. 19. MISS WORRELL: I am very grateful, my Lord.
{"ConvCourtName": ["Crown Court at Gloucester"], "ConvictPleaDate": ["6th March 1997"], "ConvictOffence": ["murder"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Gloucester"], "Sentence": ["life imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["involved in a relationship"], "VictimType": ["the deceased"], "VicNum": ["the deceased"], "VicSex": ["she"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["deceased's flat"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["police received an emergency call", "medical evidence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["APPELLANT"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["leave to appeal."], "AppealGround": ["possible misdirection by the judge as to provocation in relation to the facts of the case"], "SentGuideWhich": ["section 9 of the Criminal Appeal Act 1995", "articles 5 and/or 6 and/or 7 of the European Convention on Human Rights", "section 3 of the Homicide Act 1957"], "AppealOutcome": ["refuse leave to appeal.", "dismiss this appeal."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The direction given by Harrison J, as we have said, was entirely in accordance with the law as understood at that time."]}
{"ConvCourtName": ["Crown Court At Gloucester"], "ConvictPleaDate": ["1997-03-06"], "ConvictOffence": ["murder"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Gloucester"], "Sentence": ["life imprisonment"], "SentServe": ["Don't know"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1 of 1"], "VicSex": ["All Female"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Police evidence", "medical evidence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Conviction & other"], "AppealGround": ["possible misdirection by the judge as to provocation in relation to the facts of the case"], "SentGuideWhich": ["articles 5 and/or 6 and/or 7 of the European Convention on Human Rights", "section 3 of the Homicide Act 1957", "section 9 of the Criminal Appeal Act 1995"], "AppealOutcome": ["Dismissed-Failed-Refused", "Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The direction given by Harrison J, as we have said, was entirely in accordance with the law as understood at that time."]}
125
Case No: 201102730 Neutral Citation Number: [2012] EWCA Crim 67 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE COMMON SERJEANT HHJ BARKER QC U2009/1027 AND U2011/0173 Royal Courts of Justice Strand, London, WC2A 2LL Date: 1 st February 2012 Before : LORD JUSTICE GROSS MR JUSTICE OPENSHAW and HHJ MILFORD QC - - - - - - - - - - - - - - - - - - - - - Between : OB Appellant - and - The Director of the Serious Fraud Office Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Alun Jones QC and Colin Wells (instructed by Morgan Rose ) for the Appellant Edward Jenkins QC and Ben Douglas-Jones (instructed by the Serious Fraud Office ) for the Respondent Hearing dates : 2 nd November 2011 - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE GROSS: INTRODUCTION 1. Two principal questions arise on this appeal. The first is whether a contempt of court flowing from a breach of a restraint order made pursuant to s.41 of the Proceeds of Crime Act 2002 (“POCA”), constitutes a civil or criminal contempt. The second goes to the interpretation of Art. 18 of the United Kingdom – United States Extradition Treaty 2003 (“the Treaty”). 2. The reason these questions matter relates to the principle of “specialty” (or “speciality”) in the context of extradition. The Appellant was extradited from the USA to this country to face various charges of fraud. He was not extradited in respect of contempt. Subsequent to his return to this country, he was committed to prison for contempt (as set out below). He challenges the decision to proceed against him in respect of contempt and, hence, his committal to prison, alleging a breach of the specialty principle and an infringement of Art. 18 of the Treaty. The Respondent (“the SFO”) retorts that neither the specialty principle nor the Treaty is engaged in that the contempt in question was a civil not a criminal contempt. 3. On the 1 st April, 2011, the Common Serjeant of London (“the Common Serjeant”) ruled that the (English) Court had jurisdiction to deal with the contempt issue and that the principle of specialty did not offer protection from “these civil proceedings”. Subsequently, on the 20 th May, 2011, the Common Serjeant committed the Appellant to prison for 15 months in respect for contempt of court. Pursuant to s.13 of the Administration of Justice Act 1960, the Appellant appeals as of right against both these decisions (“the 1 st April ruling” and the “20 th May decision”). THE FACTS 4. For present purposes, the facts may be shortly summarised. The Appellant came under investigation in respect of what is alleged to have been a substantial scheme to defraud investors - a “boiler room” fraud. On the 24 th September, 2009, a restraint order (“the restraint order”) was granted by the Common Serjeant, pursuant to s.41 of POCA, against the Appellant and others (with whom this judgment is not concerned). The restraint order, inter alia , required the Appellant within 21 days both to make disclosure (broadly) of all his assets and to repatriate all his moveable assets held outside England and Wales, in particular, the sum of £457,312.40 held in a bank account in Cyprus. As is indisputable, the Appellant failed to comply either with the disclosure or the repatriation obligations imposed by the restraint order. 5. On or about the 22 nd October, 2009, it would appear that the Appellant left the jurisdiction. On the 19 th November, 2009, the SFO issued an application to commit the Appellant to prison for failing to comply with the restraint order. On the 18 th December, 2009, in the Appellant’s absence, the Common Serjeant found the Appellant to be in contempt, adjourned the imposition of a penalty and issued a bench warrant. 6. In or about June 2010 the Appellant was located in Chicago. By now, the SFO was interested in obtaining the Appellant’s extradition in connection with the underlying charges relating to the boiler room fraud. Assistance was sought from the relevant US authorities and, on the 6 th October, 2010, a federal arrest warrant was issued for the Appellant in the US District Court in respect of the (underlying) fraud matters. On the 8 th October, 2010, the Appellant was arrested at his home address in Chicago and remanded in custody. On the same day, he appeared before the US District Court Northern District of Illinois Eastern Division. The Appellant, then or subsequently (it matters not), consented to extradition in accordance with the United Kingdom’s request; for the avoidance of any doubt, the Appellant did not waive the application of the specialty principle. 7. So far as concerns the question of contempt of court, the position as of October 2010 appears to have been as follows. The question of the Appellant’s contempt of court plainly had been raised by the SFO with the US authorities. To begin with, both the SFO and the US authorities appear to have assumed that the contempt was criminal in nature. On that footing, contempt of court was not an extraditable offence; in the US, contempt of court, insofar as criminal in nature was punishable, as a misdemeanour, by up to 6 months imprisonment; however, the Treaty (see below) provided that offences were not extraditable unless punishable by sentences of imprisonment of 1 year or more. If, per contra , the contempt was a civil matter – a point which occurred to one of the leading US officials involved - then the SFO would of course be unable to secure extradition in respect of the contempt. 8. Against this background it appears that the SFO, by way of a letter to the Central Criminal Court, dated 17 th November, 2010, asked for the matter to be listed so that representations could be made as to the withdrawal of the bench warrant. The 17 th November letter concluded as follows: “ The purpose of our request is attributable to the fact that a contempt of court pursuant to breach of a Restraint Order is not an extraditable offence in the USA. Consequently, the rule of speciality applies and OB can not be brought before the Court in relation to this Bench Warrant under the terms of the rule of speciality in the United Kingdom….. ” On the 30 th November, 2010, following an ex parte mention, the Common Serjeant acceded to this application. 9. In a witness statement dated 28 th October, 2011 (“the 28 th October witness statement”), Mr. Leong, a barrister employed by the SFO, stated that the bench warrant was withdrawn to ensure expeditious extradition. A decision to put the contempt matter to one side on this ground is perhaps unsurprising, given the exchanges with the US authorities recounted above. Para. 32 of the 28 th October witness statement is more puzzling. Mr. Leong said this: “ In view of the fact that A was now [i.e., late October 2010] to be extradited, my view was that the outstanding bench warrant created a risk that A might, on his return, be taken to the CCC before being processed at Heathrow Airport, charged with the predicate offences for which he was to be extradited and taken to the City of Westminster Magistrates’ Court which had issued the extradition warrant. The fear was that if the bench warrant were executed before charge that would lead to unnecessary delay in the extradition procedure. It would also prove unnecessarily disruptive and inconvenient to A by causing him not to be processed expeditiously for the matters for which he was extradited: it might have led to A being prejudiced……. At all times, R was conscious of the Overriding Objective of the Criminal Procedure Rules and the duty to assist the court in actively managing cases. ” At first blush, the meaning of this paragraph was not apparent. No explanation was forthcoming at the hearing of the appeal which clarified its meaning. It remains, to us, put most charitably, wholly unclear and does the SFO no credit. 10. Overall, it is clear that the US authorities (in the shape of the Department of Justice) were undoubtedly made aware of the contempt matter and of the bench warrant – at a time when it was still extant. It is not clear that the US Court was likewise made aware, though whether anything turns on that is another matter. On any view, the US Court was well aware of the principle of specialty and its practical meaning was explained to the Appellant in the course of the hearing on 8 th October, 2010. 11. On the 2 nd December, 2010, the Appellant was returned to the United Kingdom. He was then arrested, charged with the underlying fraud offences, produced at the Magistrates’ Court and remanded in custody. 12. Subsequently, as it would appear, the SFO reconsidered the matter and formed the view that contempt in this context was civil and accordingly not caught by the specialty principle. The SFO decided to proceed and the contempt proceedings returned to the Central Criminal Court. At hearings on the 18 th March, 2011 and the 1 st April, 2011, the specialty issue was argued. Thereafter, the Common Serjeant gave the 1 st April ruling in the SFO’s favour; the gravamen of the ruling was that this was “a civil contempt in origin and nature”. The 1 st April ruling was followed by the 20 th May decision, committing the Appellant to prison. THE RIVAL CASES 13. We turn to a brief outline of the rival cases on the appeal. For the Appellant, Mr. Alun Jones QC’s powerful submissions proceeded as follows. English law was to be applied in characterising the contempt as civil or criminal. The better view was that the contempt here was criminal; the best test was furnished by reference to the Courts in which the proceedings had taken place: the Central Criminal Court followed by an appeal to the Court of Appeal. By contrast, the SFO’s case had far-reaching consequences: contempt for breach of a restraint order made under s.41 of POCA would not give rise to an extraditable offence. On the basis that this was a criminal contempt, the Appellant enjoyed the protection of the specialty principle and the Court had no jurisdiction or was wrong to commit him to prison. In any event, even if the contempt was civil, it had been wrong to commit the Appellant to prison, given the terms of Art. 18 of the Treaty. It was of the first importance that the Courts should give effect to the United Kingdom’s international obligations. The “evidence” that the US authorities were not concerned by these proceedings was unsatisfactory and could not be relied upon. A simple and pragmatic alternative course was in any event available to the SFO; it should have sought a fresh restraint order, rather than relying on the contempt which preceded the Appellant’s extradition. Such a course would have practical benefits for the Appellant in terms of remand status and time on remand counting. For completeness, Mr. Jones accepted, rightly in our judgment, that an abuse argument canvassed in his skeleton argument did not add anything to his case; accordingly, no more need be said of it. 14. For the SFO, Mr. Jenkins QC’s submissions were straightforward. Both the SFO and the US authorities had initially made the erroneous assumption that the contempt was criminal. They had therefore and wrongly asked whether the contempt was an extraditable offence – rather than whether it was an offence at all. When minds came to be focussed, the better view was that the contempt was civil; regardless of the Court/s concerned, restraint proceedings were civil (akin to proceedings concerning freezing orders) and the contempt constituted disobedience to an existing order of the Court. It was, however, to be underlined that there had been no misrepresentation whether to the US Court, the US authorities or the Common Serjeant. While, as was clear from s.148 of the Extradition Act 2003 (“the Act”), conduct was always the foundation for extradition, the context of both the Act and the Treaty concerned criminal offences. It followed both that the specialty principle was inapplicable and that the committal to prison had not been contrary to Art. 18 of the Treaty. 15. Against this background, the principal issues which arise for determination on this appeal may be formulated as follows: i) Whether the Appellant’s contempt was a civil or criminal contempt? (“Issue I”) ii) Whether, if the Appellant’s contempt was a civil contempt, it was nonetheless wrong to commit him to prison given the terms of Art. 18 of the Treaty? (“Issue II”) We turn directly to these Issues. ISSUE (I): WHETHER THE APPELLANT’S CONTEMPT WAS A CIVIL OR CRIMINAL CONTEMPT? 16. (1) Extradition and specialty: In R v Seddon [2009] EWCA Crim 483 ; [2009] 2 Cr App R 9 , a case concerned with European Arrest Warrants, observations of Hughes LJ (Vice President, Court of Appeal Criminal Division) helpfully serve to put the matter in context: “4. Extradition is a process involving agreement between Sovereign States. The requesting State has no power to send its policemen into the requested State to arrest a prisoner who has run away there. That would be a direct infringement of the sovereignty of the requested State. So the requesting State depends upon the voluntary co-operation of the State where the fugitive is now to be found. Unsurprisingly States found that they generally had a common interest in A surrendering prisoners to B if B asked, providing that B entered into a reciprocal agreement to surrender those whom A wanted when the boot was on the other foot. On the other hand, States generally wished to retain the power to refuse to surrender in some circumstances. To take simple but non-exhaustive examples, they might wish to refuse if the conduct complained of was not a crime in the requested State, or if it was, for example, a crime of a political character where the interests of the two States diverged. 5. Historically, extradition was generally achieved through separate bilateral treaties between States. Commonly the power of the requested State to refuse extradition in some circumstances was preserved by the terms of such treaties. To give effect to that practice, the principle evolved that if A requested a prisoner from B, A would identify the offence for which the prisoner was wanted, so that B could decide whether there was a sufficient reason to refuse to surrender him. With that went the practice that if surrendered the prisoner could only be dealt with for the offence for which he had been sought, otherwise plainly the surrendering State’s power to refuse would be circumvented. That principle is called specialty. ….The rationale for it may owe something to the protection of the individual, but it plainly lies principally in the international obligation between States. ” 17. Manifestly, the principle of specialty applies only to criminal offences and has nothing to do with civil matters. 18. (2) Statutory provisions: If the contempt here is criminal, the Act makes it clear that the principle of specialty applies; insofar as material, the Act provides as follows: “ 148. Extradition offences (1) Conduct constitutes an extradition offence in relation to the United Kingdom if these conditions are satisfied – (a) the conduct occurs in the United Kingdom; (b) the conduct is punishable under the law of the relevant part of the United Kingdom with imprisonment or another form of detention for a term of 12 months or a greater punishment. 151A Dealing with a person for other offences (2) The person may be dealt with in the United Kingdom for an offence committed before the person’s extradition only if – (a) the offence is one falling within subsection (3), or (b) the condition in subsection (4) is satisfied. (3) The offences are – (a) the offence in respect of which the person is extradited; (b) an offence disclosed by the information provided to the territory in respect of that offence; (c) an offence in respect of which consent to the person being dealt with is given on behalf of the territory. (4) The condition is that – (a) the person has returned to the territory from which the person was extradited, or (b) the person has been given an opportunity to leave the United Kingdom. ” 19. S.14(1) of the Contempt of Court Act 1981 (“the CCA”) is in these terms: “ In any case where a court has power to commit a person to prison for contempt of court and (apart from this provision) no limitation applies to the period of committal, the committal shall (without prejudice to the power of the court to order his earlier discharge) be for a fixed term, and that term shall not on any occasion exceed two years in the case of committal by a superior court….” As some reference was made to it in argument, we record the wording in s.14(2A), which speaks of the “…exercise of jurisdiction to commit for contempt of court or any kindred offence ….” [italics added] and that a “….fine imposed under subsection (2) above shall be deemed, for the purpose of any enactment, to be a sum adjudged to be paid by a conviction”. 20. S.76 of the Powers of Criminal Courts (Sentencing) Act 2000 (“the PCC(S)A”) deals with the meaning of “custodial sentence”; the section provides as follows: “ (1) In this Act ‘custodial sentence’ means – (a) a sentence of imprisonment….. (2) In subsection (1) above ‘sentence of imprisonment’ does not include a committal for contempt of court or any kindred offence.” 21. Pausing here, it is plain that the CCA makes provision for imprisonment (or fines) in the case of contempt of court. It can fairly be said that the language is redolent of a criminal statute. But too much cannot be made of this feature. First, s.14(1) undoubtedly applies to contempt of court which is indisputably civil in nature: for example, flouting the provisions of a freezing order in a commercial case. Accordingly, committal to prison is a “sentencing” option in the case of both civil and criminal contempt. Moreover, as is settled law, the burden and standard of proof are the same regardless of whether the contempt alleged is civil or criminal – and Art. 6.2 and 6.3, ECHR are likewise equally applicable. Secondly, s.76(2) of the PCC(S)A distinguishes, in terms, between committal to prison for contempt and sentences of imprisonment. 22. (3) The distinction between civil and criminal contempt: The ordinarily somewhat arid distinction between “civil” and “criminal” contempt was explained, in general terms, by Lord Scarman in Home Office v Harman [1983] 1 AC 280 , at p.310, as follows: “ ….The distinction between ‘civil’ and ‘criminal’ contempt is no longer of much importance, but it does draw attention to the differences between on the one hand contempts such as ‘scandalising the court’, physically interfering with the course of justice, or publishing matter likely to prejudice fair trial, and on the other those contempts which arise from non-compliance with an order made, or undertaking required , in legal proceedings. The former are usually the business of the Attorney-General to prosecute by committal proceedings (or otherwise): the latter, constituting as they do an injury to the private rights of a litigant, are usually left to him to bring to the notice of the court. And he may decide not to act: he may waive, or consent to, the non-compliance. ” 23. In essentially similar vein, Lord Oliver, in Attorney-General v Times Newspapers Ltd [1992] 1 AC 191 , at pp. 217-218, said this as to the distinction: “ ….A distinction (which has been variously described as ‘unhelpful’ or ‘largely meaningless’) is sometimes drawn between what is described as ‘civil contempt’, that is to say, contempt by a party to proceedings in a matter of procedure, and ‘criminal contempt’. One particular form of contempt by a party to proceedings is that constituted by an intentional act which is in breach of the order of a competent court. Where this occurs as a result of the act of a party who is bound by the order or of others acting at his direction or on his instigation, it constitutes a civil contempt by him which is punishable by the court at the instance of the party for whose benefit the order was made and which can be waived by him. The intention with which the act was done will, of course, be of the highest relevance in the determination of the penalty (if any) to be imposed by the court, but the liability here is a strict one in the sense that all that requires to be proved is service of the order and the subsequent doing by the party bound of that which is prohibited. When, however, the prohibited act is done not by the party bound himself but by a third party, a stranger to the litigation, that person may also be liable for contempt. There is, however, this essential distinction that his liability is for criminal contempt and arises not because the contemnor is himself affected by the prohibition contained in the order but because his act constitutes a wilful interference with the administration of justice by the court in the proceedings in which the order was made. Here the liability is not strict in the sense referred to, for there has to be shown not only knowledge of the order but an intention to interfere with or impede the administration of justice – an intention which can of course be inferred from the circumstances. ” 24. Although, as already indicated, we are not concerned with the classification of contempt in US law, the graphic passage in the majority judgment of Justice Breyer, in the US Supreme Court, in Turner v Rogers 564 US 10-10 2011, at p.8, helpfully illuminates the nature of the distinction: “ But the Sixth Amendment does not govern civil cases. Civil contempt differs from criminal contempt in that it seeks only to ‘coerce the defendant to do’ what a court had previously ordered him to do. Gompers v Bucks Stove & Range Co. , 221 US 418, 442 (1911). A court may not impose punishment ‘in a civil contempt proceeding when it is clearly established that the alleged contemnor is unable to comply with the terms of the order’. Hicks v Feiock , 485 US 624, 638, n.9 (1988). And once a civil contemnor complies with the underlying order, he is purged of the contempt and is free. Id. , at 633 (he ‘carries the keys of [his] prison in [his] own pockets’….” 25. The earlier US Supreme Court decision in Gompers v Bucks Stove , referred to in this passage, itself contains a valuable analysis of the distinction between civil and criminal contempt. Giving the opinion of the Court, Mr. Justice Lamar said this (at pp. 441 – 443): “ Contempts are neither wholly civil nor altogether criminal……But in either event, and whether the proceedings be civil or criminal, there must be an allegation that in contempt of court the defendant has disobeyed the order, and a prayer that he be attached and punished therefor. It is not the fact of punishment but rather its character and purpose, that often serve to distinguish between the two classes of cases. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court. It is true that punishment by imprisonment may be remedial as well as punitive, and many civil contempt proceedings have resulted not only in the imposition of a fine, payable to the complainant, but also…in committing the defendant to prison. But imprisonment for civil contempt is ordered where the defendant ahs refused to do an affirmative act required by the provisions of an order which, either in form or substance, was mandatory in character. Imprisonment in such cases is not inflicted as a punishment, but is intended to be remedial by coercing the defendant to do what he had refused to do. The decree in such cases is that the defendant stand committed unless and until he performs the affirmative act required by the court’s order…… It is true that either form of imprisonment has also an incidental effect. For if the case is civil and the punishment is purely remedial, there is also a vindication of the court’s authority. On the other hand, if the proceeding is for the criminal contempt and the imprisonment is solely punitive, to vindicate the authority of the law, the complainant may also derive some incidental benefit from the fact that such punishment tends to prevent a repetition of the disobedience. But such indirect consequences will not change imprisonment which is merely coercive and remedial, into that which is solely punitive in character, or vice versa. ” 26. This general discussion as to classification, from both sides of the Atlantic, is not and could not be dispositive of the particular issue/s arising on this appeal. Moreover, the parallel between the SFO and a private litigant is hardly exact. The discussion does, however, tend to support the SFO case, for these reasons. First, the contempt here involved the breach of an existing order of the Court, rather than a wilful interference by a non-party with the administration of justice. Secondly, the purpose of the committal, in our judgment, is both punitive and, importantly, coercive; a major purpose – if not necessarily the sole purpose - is to induce compliance with the disclosure and repatriation requirements of the restraint order. There is no doubt that the Appellant could have purged his contempt by compliance with those requirements; in that sense, it can be said (in the memorable phrase from the US authorities) that he ‘carries the keys of [his] prison in [his] own pockets’. Thirdly, the discussion underlines that the fact of punishment is essentially neutral for present purposes and so reinforces the observations already made that too much cannot be made of the language of the CCA. 27. (4) Civil proceedings, freezing injunctions (Marevas) and search orders (Anton Pillers): Much reliance was placed by the SFO on Pooley v Whetham (1880) LR 15 Ch D 435 . The head note readily explains why: “ An attachment issued by the High Court of Justice for disobedience of an order of the Court in a civil action is not an offence within the meaning of the 19 th section of the Extradition Act, 1870. Therefore, where a party to an action in the Chancery Division was arrested in Paris for a crime under the Extradition Act, and while in prison in England under the warrant was served with an attachment for disobedience to an order in the action:- Held, (affirming the decision of Bacon, VC), that the attachment was valid, and that the prisoner was not entitled to his discharge until he had cleared his contempt, although he had been acquitted of the criminal charge.” 28. The contempt had been committed before the surrender and s.19 of the 1870 Act, so far as material, provided that the person surrendered was not “….triable or [to be] tried for any offence committed prior to the surrender…”. 29. The appellant’s contentions were robustly rejected. James LJ said this (at p.440): “ Although it assumes the form of punishment for contempt of Court, it is a mere civil process to enforce obedience to an order of a civil Court to do something on behalf of or for the benefit of a private person, which has no reference whatever to any offence committed against the State or against the Sovereign of the State, which are the offences mentioned there. It appears to me that it is impossible to extend the words to an attachment for a contempt which is really only a process of coercion to compel the performance of the order of the Court in what….is a civil matter.” Brett LJ (at p.443) put the matter this way: “ …..The real truth is that the word ‘offence’ in the 19 th section means a criminal act, whether a felony or a misdemeanour is immaterial, but an offence which would be triable in a criminal Court. Therefore it does not apply to civil processes, so that the objections which were founded on that reading of the statute all fail.” 30. For our part, we do not think that Pooley v Whetham goes nearly as far as the SFO would wish it to. That disobedience to an order in (wholly) civil proceedings should give rise to a civil contempt is unremarkable – but does not resolve the question here, namely, whether flouting a restraint order made under POCA gave rise to a civil or criminal contempt. Nonetheless, in our view, this authority does furnish some assistance. First, it is a decision in the extradition context. Secondly, the passage cited from Brett LJ’s judgment serves, with respect, as a succinct pointer as to the context in which ss.148 et seq of the Act are to be read – and, it may be said, the relevant provisions of the Treaty (see below): an offence means a criminal act. Thirdly, it raises for consideration the question of why breach of a restraint order should give rise to a criminal contempt whereas flouting an order such as that made in this decision should so emphatically not do so. 31. Similar considerations apply to authorities in the Anton Piller and Mareva context: a breach of such orders or injunctions gives rise to a civil not a criminal contempt: see, Cobra Golf Inc v Rata [1998] Ch 109 ; Daltel Europe Ltd v Makki [2006] EWCA Civ 94 ; [2006] 1 WLR 2704 , esp., at [51]. As not infrequently remarked, there are distinct parallels between freezing injunctions (in particular) and restraint orders. Although the former are utilised in civil proceedings and the latter (most likely) in support of criminal confiscation proceedings, the suggestion that contempt for breach of one should be criminal but for the other civil, requires justification – given the similarities between the orders and the nature of the contempt in question arising from their breach. 32. (5) Predecessor regimes: The statutory regimes prior to POCA contained provisions for confiscation and restraint orders. Authority relating to these predecessor regimes suggests that contempt for breach of a restraint order constitutes civil rather than criminal contempt. 33. The Court of Appeal in In re O [1991] 2 QB 520 held that the relevant provisions in the Criminal Justice Act 1988 established a regime for restraint and charging orders, which was both civil in character and collateral to the criminal regime furnished by other provisions in the same act covering confiscation orders and their enforcement: see, esp., at pp. 527-528. That, as Lord Donaldson MR observed (at p.528), restraint orders are designed to preserve assets upon which the orders of the criminal courts may bite at a later stage, did not, it would appear, lead the Court to doubt their civil character. While the Court in In re O expressed concerns as to the jurisdictional consequences (at the time) for appeals were it to have concluded otherwise, we do not think that the decision can properly be explained or discounted simply on that basis. In passing, the analogy between a restraint order and a freezing injunction is plain; Lord Donaldson MR had himself previously said that a restraint order might not inaccurately be referred to as a “drugs Act Mareva ”, in the context of the Drug Trafficking Offences Act 1986: see, In re Peters [1988] QB 871, at 879. 34. In DPP v Scarlett [2000] 1 WLR 515, the Court of Appeal dismissed an appeal from an order attaching a repatriation requirement to a restraint order made under the Drug Trafficking Act 1994. The Court had an inherent power (as, we interpose, it does in the case of Mareva injunctions) to make ancillary orders to ensure that the exercise of its jurisdiction was effective to achieve its purpose. Accordingly, the Judge had jurisdiction to commit the appellant for breach of the order. Beldam LJ, giving the single substantive judgment of the Court, observed (at p.523) it to be “well settled” that the civil jurisdiction of the High Court in contempt proceedings was separate and distinct from its criminal jurisdiction. 35. In In re Grant [2011] EWHC 1007, Ouseley J held (at [23]) that contempt proceedings for breach of a restraint order made pursuant to the Drug Trafficking Act 1994 were civil proceedings. For completeness, there was a successful appeal from the decision of Ouselely J - but on compassionate grounds and hence immaterial to the present discussion: see, [2011] EWCA Civ 643 . 36. To the extent, therefore, that guidance with respect to the POCA regime can properly be obtained from these authorities, they lend powerful support to the SFO case. 37. (6) The POCA regime: The relationship between the POCA regime and its predecessors was, with respect, neatly summarised by Laws LJ in Jennings v CPS [2005] EWCA Civ 746 ; [2006] 1 WLR 182 , at [16], as follows: “ The statutory regime for the making of confiscation orders in connection with the proceeds of crime, and for the preservation of assets of a suspect or defendant so that any later confiscation order might be made good, is now provided for by Part II of …[POCA]… Confiscation orders are dealt with at sections 6-39 , and restraint orders at sections 40-47 and 69 . These provisions reflect, though they do not precisely replicate, those contained in Part VI of the 1988 Act. A major change consists in the fact that whereas under the 1988 Act the jurisdiction to make restraint orders was vested in the High Court, under the 2002 Act it is in the hands of the Crown Court. Confiscation orders are dealt with in the Crown Court (as they have always been) and so now the whole regime is administered in that court. Appropriate rights of appeal lie to the ….[CACD]…” 38. POCA, s.41 governs the making of restraint orders: “ (1) If any condition set out in section 40 is satisfied the Crown Court may make an order (a restraint order) prohibiting any specified person from dealing with any realisable property held by him.” 39. POCA, s.46 provides as follows: “ Hearsay evidence (1) Evidence must not be excluded in restraint proceedings on the ground that it is hearsay (of whatever degree). (2) Sections 2 to 4 of the Civil Evidence Act 1995….apply in relation to restraint proceedings as those sections apply in relation to civil proceedings. …..” Two features of s.46 merit attention. First, hearsay evidence is not to be excluded in “restraint proceedings” and ss. 2 – 4 of the Civil Evidence Act apply to such proceedings. Secondly, those sections of the Civil Evidence Act apply to restraint proceedings “as those sections apply in relation to civil proceedings”. We return, presently, to consider the ramifications of the terms of s.46. 40. R v M [2008] EWCA Crim 1901 ; [2009] 1 WLR 1179 involved an alleged breach of a POCA restraint order. The prosecution applied to the Crown Court to commit the defendant for contempt of court. The defendant resisted the application on the ground that the Crown Court had no jurisdiction to try an allegation of civil contempt; such applications should be made to the Divisional Court. The Judge ruled that he had jurisdiction to proceed; the defendant’s appeal to the CACD was dismissed. As a restraint order was the equivalent in criminal proceedings of a freezing injunction in civil proceedings and since allegations of contempt of court consisting of breaches of freezing injunctions were regularly heard and determined by High Court Judges sitting alone, so too single Judges of the Crown Court had jurisdiction to deal with allegations of contempt consisting of breaches of a restraint order made under s.41 of POCA. Thus far, it could be said that this decision does not significantly impact on the argument here, other than (again) drawing attention to the analogy between restraint orders and freezing injunctions. 41. However, the judgment in R v M is noteworthy because of this Court’s acceptance that the contempt in question was a civil contempt; although the contrary does not appear to have been argued, there is no hint in the careful judgment of the Court (given by Bean J) that the contempt in question might have been a criminal contempt. To the contrary, the Court discussed two cases of alleged criminal contempt, Balogh v St Albans Crown Court [1975] QB 73 and Rooney v Snaresbrook Crown Court (1978) 68 Cr App R 78 – and clearly distinguished between criminal contempt and the contempt which the Court was considering. The alleged contempt in Balogh concerned the planned disruption of a Crown Court sitting by releasing a cylinder of laughing gas into the ventilation system. In Rooney , the alleged contempt consisted of a company director dismissing an employee for having been on jury service. At [18], Bean J said this: “ Both the Rooney case and the Balogh case were cases of alleged criminal contempt, that is to say either contempt in the face of the court or conduct tending to interfere with a trial which is under way or just about to begin. There are two possible ways of dealing with criminal contempt: one by the the exercise of the summary jurisdiction, the other by an application to a Divisional Court. Neither case has anything to say about civil contempt, that is to say breach of a court order carrying the contempt sanction.…. ” 42. In our view, R v M falls short of constituting binding authority, effectively determining the present Issue in favour of the SFO. In particular, this is so because there was no argument before the Court in R v M that the contempt in question was a criminal contempt. We do, however, think that this Court’s approach in R v M furnishes strong persuasive authority for the contention that the contempt here is a civil contempt. 43. (7) Pulling the threads together: We are persuaded that the contempt constituted by breach of a restraint order made under POCA is a civil not a criminal contempt. While no single factor is decisive, we are satisfied that this is the better view in the light of all the various matters to which we have had regard. In the paragraphs which follow, we pull the threads together. 44. First, this conclusion is supported by and consistent with the general discussion on the classification of contempt in English law. To reiterate, the fact of a custodial punishment is neutral; what matters is the nature of the contempt (breach of an existing order of the Court) and the purpose of the punishment (coercive as well as punitive). 45. Secondly, the restraint order in the context of confiscation proceedings is closely analogous to the freezing injunction in civil proceedings. We can see no proper justification for concluding that a contempt constituted by breach of such orders is a criminal contempt in the case of restraint orders but a civil contempt in the case of freezing injunctions (and search orders). 46. Thirdly, nothing in the predecessor regimes to POCA supports the contention that contempt constituted by a breach of a restraint order is a criminal rather than a civil contempt. To the contrary, authorities decided under those regimes speak with one voice, namely, that such contempt is to be characterised as civil contempt. 47. Fourthly, as to the POCA regime itself: i) The conclusion that restraint proceedings are to be treated as civil proceedings and that the contempt constituted by breach of a restraint order is a civil contempt flows from a consideration of the predecessor regimes - unless POCA produced a radical departure from the position prevailing under those regimes. While it is true that under POCA, jurisdiction to make restraint orders has been transferred from the High Court to the Crown Court, we view the basis of this change as administrative – rather than in any way reflecting a radical change in the classification of restraint proceedings from civil to criminal. Overall, we see POCA as reflecting if not precisely replicating the predecessor regimes: Jennings v CPS (supra) , at [16]. We are unable to accept the test proposed by Mr. Jones; despite its taut formulation, we cannot agree that the Courts in which the proceedings have taken place determine whether the contempt was civil or criminal. That would be to place an undue premium on the listing and administrative arrangements current at any particular time; such arrangements do not outweigh the other considerations to which we have had regard. ii) The conclusion to which we are attracted is fortified by the terms of POCA, s.46; for our part, its real significance lies in the specific provision for the application of sections 2 - 4 of the Civil Evidence Act to restraint proceedings. It is noteworthy that those sections of the 1995 Act are made applicable to restraint proceedings under POCA, whereas they do not apply to confiscation proceedings which are to be regarded as criminal in nature: see R v Vincent Clipston [2011] EWCA Crim 446 ; [2011] 2 Cr App R(S) 101, esp. at [50]. While we acknowledge the somewhat ambiguous nature of the wording in s.46(2) (“as those sections apply in relation to civil proceedings”), we do not think that this wording suggests that restraint proceedings are not civil proceedings; instead, we view this wording as confirmatory of the characterisation of restraint proceedings as civil proceedings. Had the legislature’s intention been to produce a radical change in the nature and characterisation of restraint proceedings from that which had hitherto prevailed, we are confident that very different wording would have been used. iii) Furthermore, this conclusion is consistent with and supported by R v M (supra) , where this Court plainly proceeded on the basis that a contempt constituted by breach of a restraint order made under POCA, s.41, was a civil not criminal contempt. 48. It follows that we answer Issue (I) by holding that the contempt here in question was a civil not criminal contempt. We turn to Issue (II). ISSUE (II): WHETHER, IF THE APPELLANT’S CONTEMPT WAS A CIVIL CONTEMPT, IT WAS NONETHELESS WRONG TO COMMIT HIM TO PRISON GIVEN THE TERMS OF ART. 18 OF THE TREATY? 49. Insofar as material, the Treaty provides as follows: “ [Preamble] ….Desiring to provide for more effective cooperation between the two States in the suppression of crime, and, for that purpose, to conclude a new treaty for the extradition of offenders; Have agreed as follows: Article 1 Obligation to Extradite The Parties agree to extradite to each other, pursuant to the provisions of this Treaty, persons sought by the authorities in the Requesting State for trial or punishment for extraditable offences. Article 2 Extraditable Offences 1. An offence shall be an extraditable offence if the conduct on which the offence is based is punishable under the laws in both States by deprivation of liberty for a period of one year or more or by a more severe penalty. Article 18 Rule of Specialty 1. A person extradited under this Treaty may not be detained, tried or punished in the Requesting State except for: (a) any offence for which extradition was granted, or a differently denominated offence based on the same facts as the offence on which extradition was granted, provided such offence is extraditable, or is a lesser included offence; (b) any offence committed after the extradition of the person; or (c) any offence for which the executive authority of the Requested State waives the rule of specialty and thereby consents to the person’s detention, trial, or punishment….” 50. We can deal summarily with this Issue. If our conclusion had been that the contempt here in question was a criminal contempt, then Art. 18 of the Treaty would have precluded the committal proceedings – reflecting the initial thoughts of both the SFO and (so far as we can tell) the US authorities. 51. However, we have already concluded that the contempt was a civil not a criminal contempt. As it seems to us, this conclusion is effectively determinative of Issue (II) as well. As is clear from the Preamble and Art. 1, the scope of the Treaty is confined to criminal offences; in this regard, the Treaty and ss. 148 and 151A of the Act are to the same effect. A civil contempt is not a criminal offence; the observations of Brett LJ in Pooley v Whetham (set out above) continue to have resonance. Despite the width of its opening words, Art. 18 has no application; read in context, those words bite and bite only on detention, trial and punishment for criminal offences. Consistently with principle, the rule of specialty embodied in Art. 18 has nothing to do with civil matters: see, the observations from R v Seddon , cited above. That civil contempt may in fact result in punishment by way of committal to prison does not make it any the less a civil matter. It of course follows, as indeed Mr. Jones submitted, that in other cases the SFO would not be entitled to seek extradition in respect of contempt of this nature; so be it. The point is a short one, not benefiting from further elaboration. 52. We accordingly answer Issue (II), “no”. CONCLUDING OBSERVATIONS 53. As already observed, Mr. Jones, rightly in our judgment, did not press an “abuse” argument in the event that he failed on Issues (I) and (II). We are anxious, however, to dispel lingering concerns, if any, arising from certain matters canvassed in argument. 54. First, we treat compliance with this country’s international obligations as a matter of the first importance. We would indeed have been very troubled, had we thought that committal proceedings against the Appellant in respect of civil contempt gave rise to potential embarrassment between this country and the US. But we do not think that the SFO’s pursuit of these proceedings has done so. While we acknowledge the force of Mr. Jones’ criticisms of the state of the evidence as to the views of the US authorities – and the SFO has, in our judgment, no excuse for the evidence being in the form it was – there is no or insufficient material for any realistic suggestion of dissatisfaction on the part of the US authorities, still less that the US authorities considered there to have been a breach of specialty in this case. It is to be underlined that the matter was clearly anxiously considered here (across Government departments) by an experienced Home Office official, with (we were told) a particular interest in such matters; the position ultimately reached does not support any submission of concern in this regard. 55. Secondly, we have ourselves anxiously considered the SFO’s various changes of position with regard to the contempt in this case and its classification as civil or criminal. We have done so to satisfy ourselves that there was no question of either the Common Serjeant (in this country) or the US Court or authorities having been misled, however inadvertently. On the material before us, including the most recent (and regrettably late) disclosure, we are satisfied that, as our recitation of the history shows, the answer to this question is “no”. We have already highlighted the obscure and disquieting paragraph in Mr. Leung’s 28 th October witness statement; that paragraph does not, however, seem to go anywhere. We do not for a moment think (for instance) that the Common Serjeant was induced by that paragraph to make any ruling he would not otherwise have made. That paragraph apart, while, with respect, there was a degree of vacillation, we do not think that anything in the SFO’s conduct gave rise to unfairness. 56. Thirdly, we remind ourselves of the purpose of the restraint order and the need for Courts to do what they properly can to render such orders efficacious. The Appellant was extradited without any subterfuge; it was not and could not have been suggested that he was extradited for the disguised purpose of dealing with the matter of his contempt. He has failed, as set out above, on his substantive arguments. In the circumstances, we see no unfairness in the SFO continuing the committal proceedings against him. That the SFO might instead have sought a fresh restraint order is ultimately neither here nor there. At all events, it remains open to the Appellant to purge his contempt; to that extent, the remedy continues to lie in his own hands. 57. For the reasons given, the Appellant’s committal to prison did not infringe either the principle of specialty or the Treaty. This appeal is dismissed.
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{"ConvCourtName": ["Magistrates’ Court"], "ConvictPleaDate": ["2011-04-01"], "ConvictOffence": ["contempt of court"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Central Criminal Court"], "Sentence": ["prison for 15 months"], "SentServe": ["data not available"], "WhatAncillary": ["restraint order"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Don't know"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Police evidence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Sentence"], "AppealGround": ["i)Whether the Appellant’s contempt was a civil or criminal contempt? (“Issue I”)ii)Whether, if the Appellant’s contempt was a civil contempt, it was nonetheless wrong to commit him to prison", "matter relates to the principle of “specialty” (or “speciality”) in the context of extradition"], "SentGuideWhich": ["s.148 of the Extradition Act 2003", "Contempt of Court Act 1981", "S.76 of the Powers of Criminal Courts (Sentencing) Act 2000", "Art. 18 of the United Kingdom – United States Extradition Treaty 2003", "s.13 of the Administration of Justice Act 1960", "s.41 of the Proceeds of Crime Act 2002"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["the Appellant’s committal to prison did not infringe either the principle of specialty or the Treaty."]}
402
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 202301636/A3 [2024] EWCA Crim 370 Royal Courts of Justice Strand London WC2A 2LL Wednesday, 31 January 2024 Before: LORD JUSTICE DINGEMANS MR JUSTICE CHOUDHURY THE RECORDER OF REDBRIDGE HER HONOUR JUDGE ROSA DEAN (Sitting as a Judge of the CACD) REX V KAMILA AHMAD __________ 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 S JONES KC appeared on behalf of the Applicant _________ J U D G M E N T 1. MR JUSTICE CHOUDHURY: On 19 April 2023 in the Crown Court at Croydon, before His Honour Judge Gower KC the applicant, then aged 24, was sentenced for the following offences of which she had been convicted after trial: Count 1, wounding with intent, seven years' imprisonment concurrent; Count 3, murder, imprisonment for life. The minimum term for the sentence of life imprisonment was 23 years less 546 days spent on remand. The applicant seeks to renew her application for leave to appeal against that sentence, leave having been refused by the single judge. Factual background 2. As of July 2015, the applicant, then aged 16, was in a relationship with Karim Hussain, who was then aged 17. On 20 July 2015 the couple had spent the morning at the applicant's house. They argued and the police were called. Hussain was asked to leave but he returned later that afternoon to collect a mobile phone charger. The applicant, who was under the influence of cannabis, was not pleased to see him but let him in. As Hussain went to unplug his charger the applicant stabbed him three times with a knife. The injuries were to his back, below the left shoulder blade, in the left armpit and to his left forearm. There were further defensive injuries to Hussain's left hand. The applicant denied any involvement in the stabbing, suggesting instead that Hussain had been stabbed in the street by someone unknown. Hussain went along with this version at the time because he was in love with the applicant and did not want to be considered a snitch. She was not charged with that offence at the time. 3. By March 2021 the applicant, who was then aged 22 and who had by then served time in a young offender institution for robbery offences committed in 2017, had been in a relationship with Tai O'Donnell for about a year. The relationship was described as “volatile” with neighbours reporting frequent arguments. 4. On 24 February 2021 the applicant broke a window in O'Donnell's flat to gain access and let herself in. On 2 March 2021 she removed the boarding from the broken window and entered the flat again. At 03.27 in the morning on 3 March 2021 the applicant sent a message to her friend saying that she had stabbed someone and that nobody was helping her clean up. O'Donnell had been stabbed four times to his back, to the back of his right thigh and twice to the back of his left thigh. One of the stab wounds penetrated to a depth of 11 centimetres and almost severed his femoral artery. That last wound was fatal. 5. It was found that the applicant had been angered by O'Donnell's wish to end the relationship. The applicant sent O'Donnell text messages in the weeks leading up to the offence. These included a threat to stab him and made reference to her having three knives hidden in her room. O'Donnell told his mother and grandfather of the threats she had previously made towards him. He also told a friend, Sarah Boyle, of an occasion when the applicant produced a knife in his home. 6. The pathologist concluded that O'Donnell did not die immediately. A makeshift tourniquet had been applied but it was too low to have been effective. The applicant knew that O'Donnell did not have a telephone and she did not call for help herself. She cleaned bloodstains from the bed clothing and elsewhere in the flat. 7. The emergency services were called by O'Donnell's neighbour, Miss Gonzalez, at just after 12 o'clock on 3 March. She claimed to have gone to his house and seen him lying on the sofa with blood all over the room and on the doorstep. Paramedics arrived at 12.16 and found O'Donnell's body on the living room sofa. Gonzalez did not tell them that the applicant was at her mother's address a short distance away. Instead, Gonzalez falsely claimed that a girl she did not know had been at the flat when she arrived and that the girl had left. When a police constable accompanied Gonzalez back to her address, she falsely told him that the applicant was her sister. The applicant left Gonzalez' mother's address at just after 1 o'clock. She disposed of the murder weapon, her mobile phone and the clothes she had been wearing. 8. On the following morning the applicant told the probation service and a police officer who went to her mother's house to arrest her that the killing had nothing to do with her. Hussain subsequently decided to tell the police about the applicant stabbing him. 9. At trial the applicant ran a case of self-defence in respect of both counts. 10. In sentencing the applicant, the judge rejected the suggestion that the applicant was a victim in either of the relationship with Hussain and O'Donnell. He concluded that the "preponderance of the evidence" put before the jury pointed in the other direction to "you being the controlling and coercive partner." The judge said he could not be sure that the applicant took a knife to the scene and therefore applied a starting point for the minimum term of 15 years. 11. Having taken account of the numerous aggravating features, including the failure to call for help, the attempts to conceal her actions, the previous threats of violence and her previous convictions, and the mitigating features including the absence of any intention to kill, her age and her background, the judge considered that the appropriate minimum term if sentencing for the murder alone would be 20 years. As for count 1, the wounding with intent, the judge considered that this was a high culpability offence given the persistent nature of the attack on Hussain, but that the injuries were not as serious as they could so easily have been. As such the judge considered that this was a Category 2A offence with a starting point of five years and a range of four to seven years. Taking account of all the relevant factors in relation to that offence, the judge imposed a sentence of seven years to run concurrently. Finally, taking account of totality, the judge increased the minimum term on count 3 to 23 years to reflect the overall criminality involved in the two offences. Grounds of appeal 12. Miss Jones KC appears for the applicant before us, as she did below, and relies on four grounds of appeal: 1. The minimum term in respect of the murder offence was too long. 2. The learned judge erred in making a factual finding that the applicant had not been the victim of domestic violence. 3. Inadequate allowance was made for the applicant's age at the time of the section 18 offence. 4. Insufficient allowance was made for totality. 13. In refusing leave, the single judge said as follows: "You fell to be sentenced for wounding with intent of a previous partner and for murder of another following your trial. The jury rejected that you were acting on occasion in self-defence. In relation to the murder sentence the Judge took the appropriate starting point of 15 years. Although he accepted that you did not have an intent to kill, there were significant aggravating factors to the offence. You inflicted four knife wounds to the rear of the deceased's body in his own home to which you had gained access. The Judge found, as he was entitled on the evidence and well-placed having presided over your trial so to do, that you acted out of anger. This was against the background of earlier threats to stab him. There was evidence that the deceased would have survived if you had called assistance. You did not do so. There was evidence that he survived for up to 30 minutes. He did not have a phone to summon help. The Judge was entitled to find that he suffered in that time. You set about cleaning the flat in an attempt to hide what you had done. You disposed of evidence. You put another up to giving a false account for the deceased's injuries and left the scene. You have significant previous convictions. The offence was committed on licence. The Judge was entitled to find that you are a dangerous young woman and that these aggravating factors warranted an increase in the starting point of five years. In so doing he took into account the limited mitigation that you had. The Judge was well-placed to determine on the evidence whether you were the victim of domestic violence at the hands of the deceased and to conclude that you were not. He was entitled to find that you were the perpetrator of domestic violence at the hands of the deceased and to treat that as an aggravating factor. The Judge properly categorised the offence of unlawful wounding within the guideline. You were 16, nearly 17 years of age at the time of that offence. As was said in R v Ghafoor [2001] EWCA Crim 857 the starting point is the sentence a defendant would have been likely to have received if sentenced on at the date of the commission of the offence. Your youth would have been taken into account at that time. Eight years had passed between the commission of this offence and your sentence. As was said in Ghafoor a Judge is entitled to consider that a long interval between the commission of the offence and conviction as well as the fact that a defendant has been revealed to be a dangerous criminal by the time of sentence impacts on the appropriate reduction, if any for youth. In any event the sentence was ordered to run concurrently with the life sentence for murder which was only increased by three years for totality. The Judge plainly considered totality in the overall sentence imposed and expressly only increased the minimum term for the murder by three years for that reason. Your sentence is not arguably manifestly excessive for two extremely serious offences in which you stabbed partners or ex-partners multiple times. Leave to appeal sentence is accordingly refused." 14. We have reviewed the matter afresh and we have had regard to Ms Jones KC's careful submissions in developing the four grounds of appeal. However, we remain entirely in agreement with the single judge that there is nothing in this appeal. The principal point made by Ms Jones is that the judge was wrong to conclude that the applicant had not been a victim of domestic violence and that that finding was borne out of stereotypical assumptions as to the nature of the relationship between her and her partners. However, as the judge himself noted there was a “preponderance of evidence” pointing the other way and no positive case had been put forward by the applicant that she was a victim. The judge was well placed in our view, having presided over the trial, to make the judgment that he did. This is not a case where it can be said that the findings of fact made by the judge were inconsistent with other evidence, wholly uncontradicted by inconvertible facts or irrational in some sense. It is therefore not open to this court to go behind those findings made by the judge. Nothing in our review of the evidence or in Ms Jones' submissions undermines that conclusion. 15. For those reasons, leave to appeal in this matter is refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]
{"ConvCourtName": ["Crown Court at Croydon"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["murder", "wounding with intent"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["546 days spent on remand"], "RemandCustodyTime": ["546 days"], "SentCourtName": ["Crown Court at Croydon"], "Sentence": ["seven years' imprisonment", "minimum term for the sentence of life imprisonment was 23 years"], "SentServe": ["concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["she"], "OffAgeOffence": ["16"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["applicant's house"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["influence of cannabis"], "OffVicRelation": ["in a relationship"], "VictimType": ["Karim Hussain"], "VicNum": ["Tai O'Donnell"], "VicSex": ["he"], "VicAgeOffence": ["17"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["stab wounds penetrated to a depth of 11 centimetres and almost severed his femoral artery.", "pathologist", "O'Donnell's neighbour, Miss Gonzalez", "text messages"], "DefEvidTypeTrial": ["case of self-defence", "applicant denied any involvement"], "PreSentReport": ["data not available"], "AggFactSent": ["threats of violence", "in his own home", "offence was committed on licence", "high culpability", "previous convictions", "disposed of the murder weapon"], "MitFactSent": ["age and her background"], "VicImpactStatement": ["data not available"], "Appellant": ["applicant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against that sentence"], "AppealGround": ["3.Copy link to this paragraphInadequate allowance was made for the applicant's age", "4.Copy link to this paragraphInsufficient allowance was made for totality.", "1.Copy link to this paragraphThe minimum term in respect of the murder offence was too long", "2.Copy link to this paragraphThe learned judge erred in making a factual finding that the applicant had not been the victim of domestic violence."], "SentGuideWhich": ["totality"], "AppealOutcome": ["refused."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The judge was well placed in our view, having presided over the trial, to make the judgment that he did."]}
{"ConvCourtName": ["Crown Court At Croydon"], "ConvictPleaDate": ["Don't know"], "ConvictOffence": ["murder", "wounding with intent"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["546 days"], "SentCourtName": ["Crown Court At Croydon"], "Sentence": ["minimum term for the sentence of life imprisonment was 23 years", "seven years' imprisonment"], "SentServe": ["Concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["All Female"], "OffAgeOffence": ["16"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Yes-drugs"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individuals"], "VicNum": ["2"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Witness", "Medical evidence", "Digital evidence"], "DefEvidTypeTrial": ["Self-defence or Justified Action", "Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["Location", "offence was committed on licence", "high culpability", "previous convictions", "threats of violence", "Concealment"], "MitFactSent": ["age and her background"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against that sentence"], "AppealGround": ["4.Copy link to this paragraphInsufficient allowance was made for totality.", "3.Copy link to this paragraphInadequate allowance was made for the applicant's age", "1.Copy link to this paragraphThe minimum term in respect of the murder offence was too long", "2.Copy link to this paragraphThe learned judge erred in making a factual finding that the applicant had not been the victim of domestic violence."], "SentGuideWhich": ["totality"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The judge was well placed in our view, having presided over the trial, to make the judgment that he did."]}
456
No: 200603942 A6 Neutral Citation Number: [2006] EWCA Crim 2722 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Tuesday, 24th October 2006 B E F O R E: LORD JUSTICE SCOTT BAKER MR JUSTICE AIKENS HIS HONOUR JUDGE LORAINE-SMITH (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 87 OF 2006 - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR S DENNISON appeared on behalf of the ATTORNEY GENERAL MR K C GREEN appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. LORD JUSTICE SCOTT BAKER: Her Majesty's Attorney General seeks leave to refer the sentence imposed on Daniel Peter Geddes on the ground that it is unduly lenient. We grant leave. 2. On 12th May of this year, the offender was convicted of making a threat to kill and assault occasioning actual bodily harm, offences committed on 26th November 2005, and common assault, an offence committed on 28th November 2005. On 4th April of this year, he had pleaded guilty to one count of domestic burglary and one count of burglary of a shed, those offences committed on 23rd November of 2005. By reason of two previous convictions for domestic burglary since the 30th November 1999, the domestic burglary to which the offender had pleaded guilty on 4th April of this year rendered him liable to a minimum term of three years for that offence (see section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 ). 3. On 14th July of this year, the offender was sentenced for all of these offences by Mr Recorder Hawks as follows: for burglary of a dwelling, 28 months and 21 days; for burglary of a shed, a concurrent sentence of 28 months and 12 days; for making a threat to kill, 18 months consecutive; for assault occasioning actual bodily harm, six months' imprisonment consecutive; and for common assault, three months' imprisonment concurrent; the total sentence being therefore one of 52 months and 21 days. He was given credit by the judge for 176 days that he had spent in custody. 4. The facts can be relatively shortly stated and are as follows. The victim of the threat to kill, which is the offence in respect of which the Attorney General seeks to have the sentence increased as unduly lenient, was Dawn Merta, who is aged 32. She had known the offender, who was aged 30, for about eight years. They had a son, who is aged six. For the duration of their relationship, the offender had been in and out of prison, his last release having been in May 2005. They had seen each other on and off since then and their relationship had generally been civil. The offender had a one bedroomed flat close to Ms Merta's home in Brighouse, West Yorkshire, which he shared with his cousin. He would sometimes stay at Ms Merta's flat in their son's room. 5. On morning of Saturday 26th November 2005, the offender was asleep upstairs at Ms Merta's home. She and their son were also in the house. Two males came to the door. Mrs Merta had never seen them before. They walked straight into the house and asked for the offender. She went and woke him and he went downstairs. They immediately attacked him, punching him in the face. They then left. 6. Later that evening, at about 9 o'clock, when they had both been drinking, the offender started swearing and threatening Ms Merta. She was blamed for letting the two men into the house earlier that day. She went with him in his van, feeling she had no option but to go. They took their son to a friend's house then went to the offender's flat. The offender was still verbally abusing her for having let the two men in. He then attacked her. He stubbed a cigarette out on her forehead and punched her on the head. He then produced a crossbow, with the string pulled back and loaded with a bolt and arrow, and pointed it directly at her head. He threatened to kill her by saying, "Why don't I just do you know". She was terrified. She said in evidence that he had "lost it". Eventually, in the early hours of 27th November, he drove her home again. As a result of the assault, she suffered a burn on her forehead and a sore head. 7. On Monday 28th November, the offender again went to Ms Merta's home. He dragged her outside and into his van in the presence of their son. He drove her and their son a short distance and then attacked her in front of him, punching her on the head and face. The boy was crying and very upset. The offender then took them home, collected some belongings and left. Ms Merta called the police. As a result of this assault, she suffered further soreness to her head. The next day, 29th November, the offender's van was seen by the police being driven in Brighouse. The driver was the offender's cousin. The police stopped the vehicle. Behind the driver's seat there was a crossbow and bolt, later identified by Ms Merta as the one that had been used to threaten her. 8. On 17th January 2006 the offender was arrested at Ms Merta's home after she activated an alarm and police attended. He tried to hide in the loft but was seen and apprehended. The offender declined to answer questions when interviewed about these offences but he denied them at trial, alleging that Ms Merta had fabricated the allegations. He presented a defence of alibi. He said that he had the crossbow for hunting purposes. However, in evidence in the course of his trial he said that he would take the crossbow with him when he went out committing burglary but his father, his alibi witness, laughed at the suggestion that the offender was a hunter. 9. The offences of burglary were committed with his cousin at a dwelling house in Golcar, West Yorkshire, during the day of 23rd November 2005, ie three days before the offences on Ms Merta. The offender entered the house and stole a television, a DVD player, keys, clothing and jewellery and he stole also from the garden shed a motorcycle. The offender pleaded guilty to these offences at the first opportunity. 10. It is submitted that the sentence for threatening to kill is unduly lenient in that the judge should have imposed imprisonment for public protection under section 225 of the Criminal Justice Act 2003 or, alternatively, the judge did not sufficiently reflect the gravity of the threat to kill and that the total determinate sentence should have been greater. In his initial reference, lodged appropriately within the 28 day period, the Attorney General invited the court to consider only the leniency of the minimum period to be served and did not contend that a sentence of imprisonment for public protection should have been imposed. That suggestion was only made for the first time on Wednesday of last week. 11. This court wishes to say that it regards it as unsatisfactory that the Attorney General should have left it so late to raise such an important matter. It seems to us that if there is merit in the point there is no reason why it should not have been taken when the reference was first lodged. If matters are left to the last minute it is liable to place the offender and his representatives in difficulty in dealing with submissions made on behalf of the Attorney General of which they have not had prior notice. In the event, Mr Green tells us that he has not been embarrassed by the late taking of this point and he is able to respond to the reference today. 12. The offender has a bad record, stretching back to 1991. His offences include 12 domestic burglaries and three attempted burglaries. The longest custodial sentence which he has thus far served is one of three years and nine months' imprisonment imposed in July of 2000. In March of 1998, he was sentenced to four months' imprisonment for affray. The offender and his cousin were fighting another man in the street late at night. At the time of the present offences, the offender was on licence for burglary, a licence that was due to expire on 19th January of this year. 13. Mr Dennison, for the Attorney General, submits that there are a number of aggravating features about the offence of threatening to kill: first, that a loaded lethal weapon was pointed at the victim's head, inducing immediate terror on her part; second, that the threat to kill was made in the course of a prolonged and violent assault; third, that the offender has a previous conviction for affray in 1998; and, fourth, that he was on licence at the time of all of these offences. On the other hand, there is the following mitigation: the offender has never previously been violent to the victim and does not have a history of repeated violence against the person; secondly, the victim has not caused serious physical or psychological injury. 14. Turning then to imprisonment for public protection, section 225 of the Criminal Justice Act 2003 requires the court to impose a sentence of IPP if the court is of the opinion that a significant risk to members of the public of serious harm is occasioned by the commission of further offences by the offender. Serious harm means death or serious personal jury and whether physical or psychological (section 224(3)). Section 229 tells the court how to assess the dangerousness of the offender. Because the offender has a previous conviction for a relevant offence, the 1998 affray, section 229(3) applies. Section 229(3) provides as follows: "If at the time when that offence was committed the offender was aged 18 or over and had been convicted in any part of the United Kingdom of one or more relevant offences, the court must assume that there is such a risk as is mentioned in subsection (1)(b) unless, after taking into account- (a) all such information as is available to it about the nature and circumstances of each of the offences, (b) where appropriate, any information which is before it about any pattern of behaviour of which any of the offences forms part, and (c) any information about the offender which is before it, the court considers that it would be unreasonable to conclude that there is such a risk." So the risk referred to in section 225 has to be assumed unless the court thinks that the conclusion is unreasonable after taking into account section 229(3)(a), (b) and (c). 15. The judge should have explained why he thought it unreasonable to conclude that the assumed risk existed. It can be assumed from what he did say that the fact that the offender did not in the course of the offence inflict serious physical or psychological injury to the victim, and had never done so previously, was an important factor. But it is our view that it would have been preferable if the judge had specifically referred to section 229(3) and explained why it was that he concluded that the assumption did not apply in the present case. In these circumstances, it seems to us that it is appropriate that we should ourselves go through the exercise and do our best to put ourselves in the position that the judge was in. 16. However, before doing so, we refer to the very recent decision of this court in the case of R v Johnson and others [2006] EWCA Crim 2486 in which judgment was handed down last week. The President of the Queen's Bench Division referred to the well-known case of Lang and then said, at paragraph 11: "At the risk of stating the obvious, the final consideration to which we draw attention, is that this court will not normally interfere with the conclusions reached by a sentencer who has accurately identified the relevant principles, and applied his mind to the relevant facts. We cannot too strongly emphasise that the question to be addressed in this court is ... whether the imposition of the sentence was manifestly excessive or wrong in principle. Notwithstanding the 'labyrinthine' provisions of sections 224-229, and the guidance offered by Lang , these essential principles are not affected. They apply with equal force to References by HM Attorney General. In such cases the question is whether the decision not to impose the sentence, in the circumstances, was unduly lenient. In particular, (i) In cases to which section 229(3) applies, where the sentencer has applied the statutory assumption, to succeed the appellant should demonstrate that it was unreasonable not to disapply it." And then these important words: "Equally, where the Attorney General has referred such a case because the sentencer has decided to disapply the assumption, the Reference will not succeed unless it is shown that the decision was one which the sentencer could not properly have reached." 17. So we now ask ourselves whether the decision was one in this case that the Recorder could not properly have reached. As to (a) section 229(3), the requirement that the court take into account all such information as is available to it about the nature and circumstances of each of the offences, we observe that the judge presided over the trial and therefore was well placed to assess the nature and circumstances of the particular offence of threatening to kill. As to (b), where appropriate, any information which is before it about any pattern of behaviour of which the offence forms part, the offences against Mrs Merta were what can be colloquially described as one-off and were not part of a pattern. As to (c), any information about the offender which is before it, in that regard the Recorder had the pre-sentence report which said that there was a risk of violence to Ms Merta when the offender was angry but the Recorder also had plainly in mind the offender's assurance that it was his intention never to see the victim again and, if that meant never having any further contact with his child, not to have any contact with his child either. The judge was well placed, having heard evidence from both the offender and from the victim, to decide what weight he was able to give to assurances of that kind. 18. Was the Recorder entitled to decide it was unreasonable to conclude that the offender presented a significant risk of committing further offences involving serious harm as so defined? We think that he was so entitled, albeit he did not spell out in terms the exercise that he was required to conduct in going through section 229. Making a threat to kill is an offence which attracts sentences of varying length depending on the circumstances of the particular case. This was a particularly serious offence because of the fact that a loaded crossbow was used. However, as we have indicated, we do not think that it was a case in which a sentence of imprisonment for public protection was required. 19. We turn therefore to consider the length of the determinate sentence. Not only was a crossbow used but the offence and the related offences of assault occasioning actual bodily harm and common assault spilled over a significant period of time. We turn to look briefly at the authorities to which we have been referred. As we have said, the sentences for making a threat to kill are very variable, depending on the particular facts of the case. In Attorney General's Reference No 52 of 1996 (R v Anderson ) [1997] 2 Cr.App.R(S) 230, Rose LJ, the Vice President, said that sentence of six years and more might be appropriate for offences in the domestic violence context, it having been argued in that case, unsuccessfully, that a domestic context in some way puts the case into a less serious category. No such argument has been advanced in the present case, nor, in our judgment, could it have been. In R v Mason [1995] 16 Cr.App.R(S) 804 a sentence of four years' imprisonment following a plea of guilty was upheld. Therefore it was a sentence equivalent to one of about six years following a trial. In R v Hasguler [2001] 1 Cr.App.R(S) 36, at page 122, a sentence of three years' imprisonment following a plea of guilty was upheld by this court, that is equivalent to a four and-a-half year sentence after a trial. 20. The effect of the threat on the victim is, in our judgment, and this has been referred to on previous occasions, a very important factor as to the length of sentence. There are these observations by the Recorder during mitigation: "Now I take the view that this was a squalid and totally disgraceful piece of behaviour but, in terms of assessing the long term harm or the psychological danger that it may have caused the complainant, I have a first-hand view of how it has managed to have affected her. That is to the defendant's benefit rather than anybody else's, so I do bear that in mind." On the other hand, the threat in the present case was fortified by the loaded lethal weapon and the whole incident, as we have mentioned, lasted for some time. 21. Mr Green, who has appeared before us for the offender, accepts that a sentence of 18 months for the threat to kill was a very lenient sentence but, he submits, it was nevertheless within the range open to the Recorder. Mr Green makes a similar submission with regard to the total sentence for the overall offending. 22. In our judgment, the judge should have started by asking himself what was the appropriate sentence for the threat to kill and related offences, quite independently of the sentences that he was obliged to pass for the burglaries. Had he done so, Mr Green submits that the answer would have been three to four years. We think the appropriate figure is four years and no longer. In reaching that figure, we have given very considerable weight to the judge's assessment of the limited effect of the offender's behaviour on the victim. The next step for the judge was to consider the question of totality, bearing in mind the sentence that he was required to pass on the burglary. It is not suggested in this case that consecutive sentences were other than appropriate. If one adds two years, four months and 21 days for the burglaries to the four year sentence that we think would have been appropriate for the threat to kill and related offences on their own, we come to a total of six years, four months and 12 days. 23. However, that is not the end of the sentencing exercise. The next step is to consider totality and, in our judgment, bearing in mind the total offending and all the circumstances of the case, the issue of totality would have involved rounding down the total sentence to something in the region of five and-a-half years to six years' imprisonment. Sentencing, as has often been observed, is an imprecise exercise and the fact that the sentence is lenient or indeed even very lenient does not mean that it is unduly lenient. Where a sentence is unduly lenient and consideration has to be given for increasing it, then issues of double jeopardy come into play. 24. We think, however, that the total sentence imposed by the judge in the present case was not unduly lenient but was at the very bottom of the bracket that was open to him. Mr Dennison submits that it is important not to indirectly flout Parliament's intention that repeat burglars should have mandatory minimum sentences by passing too short a sentence on the threat to kill. We have borne that in mind but we also have to look at totality. Ultimately, the determining factor in the present case, in our judgment, is that the judge presided over the trial and was best placed to assess what the total sentence should be. Four years, four months and 21 days was, in our view, a lenient sentence but not one that was unduly so. Accordingly we decline to increase the sentence. The Recorder's decision was, as we have observed, based on his assessment of the case. He was best placed to assess the case and, in particular, the effect of the offender's conduct on the victim. 25. This application is therefore refused.
{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["12th May of this year"], "ConvictOffence": ["common assault", "burglary", "domestic burglary", "making a threat to kill", "assault occasioning actual bodily harm"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["The offender pleaded guilty to these offences at the first opportunity."], "RemandDecision": ["176 days that he had spent in custody."], "RemandCustodyTime": ["176 days"], "SentCourtName": ["data not available"], "Sentence": ["for burglary of a dwelling, 28 months and 21 days; for burglary of a shed, a concurrent sentence of 28 months and 12 days; for making a threat to kill, 18 months consecutive; for assault occasioning actual bodily harm, six months' imprisonment consecutive; and for common assault, three months' imprisonment concurrent; the total sentence being therefore one of 52 months and 21 days."], "SentServe": ["concurrent", "consecutive"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["30"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["The offender had a one bedroomed flat close"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["both been drinking"], "OffVicRelation": ["She had known the offender, who was aged 30, for about eight years."], "VictimType": ["Dawn Merta, who is aged 32"], "VicNum": ["The victim"], "VicSex": ["She"], "VicAgeOffence": ["32"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["Ms Merta's home in Brighouse, West Yorkshire"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["both been drinking"], "ProsEvidTypeTrial": ["later identified by Ms Merta"], "DefEvidTypeTrial": ["denied them at trial, alleging that Ms Merta had fabricated the allegations.", "He presented a defence of alibi.", "alibi witness"], "PreSentReport": ["data not available"], "AggFactSent": ["The offender has a bad record", "loaded lethal weapon", "The offender entered the house and stole a television, a DVD player, keys, clothing and jewellery", "prolonged and violent assault"], "MitFactSent": ["never previously been violent to the victim and does not have a history of repeated violence against the person; secondly, the victim has not caused serious physical or psychological injury."], "VicImpactStatement": ["data not available"], "Appellant": ["Attorney General"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["the sentence imposed"], "AppealGround": ["the judge did not sufficiently reflect the gravity of the threat to kill and that the total determinate sentence should have been greater.", "on the ground that it is unduly lenient."], "SentGuideWhich": ["section 225 of the Criminal Justice Act 2003", "section 111 of the Powers of Criminal Courts (Sentencing) Act 2000", "totality"], "AppealOutcome": ["This application is therefore refused."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The Recorder's decision was, as we have observed, based on his assessment of the case. He was best placed to assess the case and, in particular, the effect of the offender's conduct on the victim."]}
{"ConvCourtName": ["data not available"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["burglary", "domestic burglary", "common assault", "assault occasioning actual bodily harm", "making a threat to kill"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["The offender pleaded guilty to these offences at the first opportunity."], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["176 days"], "SentCourtName": ["data not available"], "Sentence": ["for burglary of a dwelling, 28 months and 21 days; for burglary of a shed, a concurrent sentence of 28 months and 12 days; for making a threat to kill, 18 months consecutive; for assault occasioning actual bodily harm, six months' imprisonment consecutive; and for common assault, three months' imprisonment concurrent; the total sentence being therefore one of 52 months and 21 days."], "SentServe": ["Consecutive", "Combination"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["30"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Yes-drinking"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1 of 1"], "VicSex": ["All Female"], "VicAgeOffence": ["32"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Yes-drinking"], "ProsEvidTypeTrial": ["Victim testimony"], "DefEvidTypeTrial": ["Offender claims to have alibi", "Offender claims to have alibi", "Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["prolonged and violent assault", "loaded lethal weapon", "The offender has a bad record", "Financial value /gain"], "MitFactSent": ["never previously been violent to the victim and does not have a history of repeated violence against the person; secondly, the victim has not caused serious physical or psychological injury."], "VicImpactStatement": ["Don't Know"], "Appellant": ["Attorney General"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["the sentence imposed"], "AppealGround": ["the judge did not sufficiently reflect the gravity of the threat to kill and that the total determinate sentence should have been greater.", "on the ground that it is unduly lenient."], "SentGuideWhich": ["totality", "section 225 of the Criminal Justice Act 2003", "section 111 of the Powers of Criminal Courts (Sentencing) Act 2000"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The Recorder's decision was, as we have observed, based on his assessment of the case. He was best placed to assess the case and, in particular, the effect of the offender's conduct on the victim."]}
442
No: 200203198 W1 Neutral Citation Number: [2003] EWCA Crim 2196 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 17th June 2003 B E F O R E: LORD JUSTICE KAY MR JUSTICE OWEN MR JUSTICE TUGENDHAT - - - - - - - R E G I N A -v- TREVOR WICKENS - - - - - - - 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 B ALTMAN and MR R DIXON appeared on behalf of the Crown MR T BARNES QC and MR C HOLT appeared on behalf of the defendant - - - - - - - J U D G M E N T 1. LORD JUSTICE KAY: On 14 February 1991 in the Crown Court at Maidstone before Hodgson J and a jury, the appellant, Trevor Wickens, was convicted of the murder of an 89-year-old woman and sentenced to life imprisonment. 2. On 12 March 1991 the appellant, acting in person, applied for an extension of time for leave to appeal against conviction. That application was refused by the single judge on 21 May 1991. On 3 June 1991 the appellant renewed his application for leave to appeal to the full court. That application was eventually abandoned by a notice signed by the applicant on 16 November 1992. On 15 April 1999 the appellant made an application to treat his notice of abandonment as a nullity and to renew his application for leave to appeal. The court declined to grant the relief sought but gave an indication that it was always open to the appellant to apply to the Criminal Cases Review Commission ("the CCRC") for them to consider his conviction with a view to referring the matter back to the Court of Appeal if they concluded that the matters raised justified such a course. 3. The appellant followed the advice of the Court of Appeal and applied to the CCRC for them to make such a reference. After investigating the matter, the CCRC concluded that the case was a proper one for the conviction to be referred to the Court of Appeal under Section 9 of the Criminal Appeal Act 1995 . We now deal with the appeal that results from that reference. 4. There can be no doubt at all that on either Saturday 30 or Sunday 31 August 1986, Mrs Crandell, an 89-year-old woman living alone in Station Road, Herne Bay, was murdered in her home. Her body was discovered at about 5am on Monday 1 September when fire officers were called to a fire at her bungalow. The cause of her death was multiple facial and neck injuries and the Home Office Pathologist, then Dr Vanezis, now Professor Vanezis (to whom we will refer by his present status), concluded that the most likely cause of the facial injuries was stamping on the face and neck with a shod foot. He indicated that Mrs Crandell may also have been kicked in the face and recognised the possibility that there may have been some punching. 5. Following the discovery of the murder, an intensive police investigation was commenced. Although a number of people were arrested and interviewed, the police reached no positive conclusion as to the identity of the murderer until they received information about the appellant from a Mr and Mrs Wilson in November 1989. Mrs Wilson was an ex-wife of the appellant. 6. Both Mr and Mrs Wilson alleged in their statements to the police that the appellant had confessed to responsibility for the killing of Mrs Crandell at or about the time when she met her death. Their evidence and the evidence of another ex-wife of the appellant, Mrs Martin, as to conversations which she had had with the appellant about the death of Mrs Crandell, were to form the sole basis of the case presented by the prosecution at trial against the appellant. 7. Mr and Mrs Wilson alleged that the appellant had arrived at their home in Herne Bay in a blood stained and dishevelled state at about 8.30am on Sunday 31 August 1986. He had then remained with them at their home, which was not far from the scene of the murder, for a further two or three days. The Wilsons alleged that during his stay the appellant had given the following account. On the evening of Saturday 30 August 1986, having left the Heron, a nearby Public House, in drunken state, he had broken into a bungalow in Station Road to burgle it. However, he had been interrupted by an old woman as he searched the rooms. She was waving a kitchen implement at him. He claimed that the old woman would not stop shouting, and so he had held her with one hand and repeatedly punched her with the other until she was quiet. In response to Mrs Wilson's questioning, the appellant had said that the old woman had been wearing a nightie and a cardigan. Mrs Wilson believed that he had said that the nightdress was blue. The Wilsons contended that the appellant had threatened them to prevent them from repeating to anybody else what he had told them. 8. The Wilsons' account continued that the appellant had taken a petrol can from their shed later on during the Sunday and had returned to Mrs Crandell's bungalow that night to set it on fire. According to Mrs Wilson, the appellant told them that he had scattered petrol around the bungalow before setting fire to it. The fire brigade investigation confirmed that petrol had been used. The appellant was also alleged to have said that after leaving the bungalow, he had filled the petrol can with stones and thrown it into a lake. The lake in question was subsequently dredged, but no petrol can was noted. However, there was evidence which casts doubt upon whether it would have been found in the search. 9. The Wilsons said that they had been too frightened to report the appellant to the police at the time and they thought that he would in due course be caught in any event. However, at a later date they saw a newspaper report of what they understood to be a deathbed confession to the murder by another man about a year later. As a result of reading that article, they had felt compelled to do something about the matter and they had telephoned both the Samaritans and anonymously the Herne Bay police station. When nothing came from that action, they eventually decided to report their knowledge to the police in November 1989. 10. The appellant was not arrested until 4 December 1989. Whilst he was under arrest, the police approached and took a statement from Mrs Martin. 11. Mrs Martin in her statement and in evidence to the court alleged that the appellant had confessed to her one evening in October 1986 after they had both been drinking. According to her, the appellant was very upset and started to cry. He told her that he had been responsible for the murder of the old lady in Herne Bay. Mrs Martin knew about the incident to which he was referring, but said that she could not really take in the rest of the story. She said that he had said something about pushing the woman away and that she had fallen. Mrs Martin also remembered that he had said something about hitting the woman on the head. Mrs Martin said that after hearing this, she went out to phone the Samaritans and then later to see her friend, before returning to the flat she then shared with the appellant. She said that she had not reported the matter to the police because she was not sure whether to believe it or not. 12. The appellant was interviewed by the police. The allegations made by the Wilsons and Mrs Martin were put to him. He denied that he had taken any part in the burglary and killing of Mrs Crandell. He further denied that he had made any confession to the Wilsons or Mrs Martin. 13. He could, however, suggest no reason why the Wilsons and Mrs Martin should be making up false allegations against him. 14. At trial, the defence concentrated upon undermining the reliability of the evidence of the alleged confessions. One of the issues upon which they focused was the time of death. If the Wilsons' account was accepted, the murder must have occurred between 11pm and midnight on the Saturday evening. If this part of their account could be shown to be false, it clearly cast doubt upon the entirety of their evidence which necessarily would have an effect upon the jury's views of the evidence of Mrs Martin. 15. Matters concerning the time of death are central to the ground upon which the CCRC saw fit to refer this case back to this Court. As he was entitled to do, the appellant has raised other matters by way of grounds of appeal, but we thought it right in the first place to concentrate upon the matter which led to the reference, and for reasons which we will explain, we have found it unnecessary to go on and consider the other grounds. 16. It is necessary, therefore, to examine what was said at trial to indicate the time of death. Mrs Crandell's body was found at about 5am on Monday 1 September 1986. A neighbour had seen smoke coming from the premises and alerted the authorities. Fire officers forced entry to tackle the fire and discovered the body. At 5.09am ambulancemen examined the body and recorded that it was stiff and cold. PC Webb, who saw the body at 5.20am, noted that rigor mortis had set in. 17. At 6.50am, Dr Mobin examined the body at the request of the police and certified death. At some stage that morning the body was transferred to the mortuary at Kent and Canterbury Hospital for post-mortem examination. There is no evidence one way or the other as to whether it was refrigerated on arrival pending the examination. The practice was to refrigerate if there was likely to be a delay before the post-mortem could start, but not to do so if there was not likely to be any significant delay. 18. Professor Vanezis, the pathologist, was present by 2.30pm and the examination seems to have got under way at about 3pm. Professor Vanezis found that rigor mortis was fully established at the commencement of the examination. In evidence to this Court he explained that the process of examination necessarily interferes with the rigidity of the body and hence it is not possible to say whether the rigor mortis had started to wear off during the period of examination. 19. On 25 September 1986 Professor Vanezis made a witness statement for use in any proceedings arising from the death. That statement recorded his finding of rigor mortis being fully established, but contained no further indication of possible time of death. 20. Since the police were unable to form any conclusion as to the person responsible, no other post-mortem examination was carried out. Almost inevitably, if the appellant or anyone else had been charged with murder at that time, the defence would have instructed their own pathologist. However, in the absence of a suspect there was no such second post-mortem. Procedures, which may require an independent second post-mortem in those circumstances before release of the body, were not at that date in place. 21. We are told by Mr Barnes QC, who has represented the appellant at this appeal, that so far as he is aware, following the arrest of the appellant and his being charged with murder, no independent pathological evidence was obtained by the defence to consider and review the findings of Professor Vanezis. We are somewhat surprised if that is the position, particularly as there was a dispute about time of death, and we are very conscious that we have no direct information from those responsible for the defence at the time of trial. However, we do not think that anything turns on this aspect of the matter. 22. Professor Vanezis made no further statement and thus it appeared that the prosecution had not informed the defence before the trial was under way that the doctor might be able to express a view about the timing of the death. However, examination of the material available relating to Professor Vanezis' evidence at trial strongly suggests to us that there must have been some communication on this matter between the prosecution and the defence before his evidence was given. 23. In considering this case, we have been at considerable disadvantage of not having available to us a transcript of the doctor's evidence to the jury. Such a transcript is no longer available so long after the conviction was recorded. We have, therefore, had to piece together our understanding of what he said from two sources: the judge's summing up and the notebooks of Mr Altman, junior counsel for the prosecution at trial, who has represented the prosecution on this appeal. 24. Mr Altman's note records that after dealing with the injuries suffered by Mrs Crandell, Professor Vanezis was referred to the evidence of the ambulancemen and PC Webb and to photographs taken of Mrs Crandell's body at the scene and at post-mortem. He told the jury that rigor mortis was fully established at his examination and indicated that the other evidence suggested that to be the case when the body was found. There is then a distinct heading in Mr Altman's note, " Time of death" , which seems to us to suggest that Mr Geoffrey Nice QC, who was leading for the prosecution, indicated that he was going to ask the witness to deal specifically with the relationship between his observation and the likely time of death. It seems to us inconceivable that counsel of the experience of Miss Heather Hallett QC (as she then was), who was leading counsel for the defence, would have permitted this evidence to be given unless she had had prior notice, to which she was entitled, of what the doctor would say. Since there is no statement from the witness dealing with this aspect of the matter, it seems probable that there had been a communication between counsel, and she had understood what Professor Vanezis was likely to say and that it was more likely to assist the appellant rather than disadvantage him. In such circumstances, we can well see why it was thought unnecessary to obtain a further statement. 25. Mr Altman's note continues by recording the witness as saying that estimating time of death from the condition of body was "not a definite science" and that only a broad approximation could be made. He was then asked how long it would take before rigor mortis set in. He indicated that it could be instantaneous but this was extremely unusual, and said that after six hours it can generally be detected and thereafter it slowly becomes fully established. His evidence continued that once fully established, it can last for a considerable period -- over one or two days, depending on the slowness of the onset. He said that overall from onset to disappearance can take several days -- up to a week -- but added that this was unusual. He said that for it to come on can take 24 hours sometimes, and he explained that it depends on climatic conditions. The colder the temperature, the slower the onset and it would continue longer. If it was fully established after 12 hours, after 24 hours it would begin to wear off. 26. Miss Hallett cross-examined and was told that the "normal situation" was that it was "fully established after 12 hours" and "should be worn off after 24 hours". 27. We will set out in detail what the trial judge said to the jury in the summing up about the timing, but he recorded two points in Professor Vanezis' evidence that do not fully appear from Mr Altman's note: namely, that the doctor told the jury that they should be "looking at around late afternoon on Sunday 31 August to begin with", but that thirty-six hours or so to the establishment of rigor mortis from the time of death was possible. 28. Other non-medical evidence was potentially of value in considering the time of death, and the judge was to emphasise two aspects of the evidence to the jury when he summed the case up. They were, first, the way in which Mrs Crandell was dressed when she was killed and, second, the presence of a partially prepared meal in the kitchen. As to the first point, the judge said: "You may think that she was plainly in day clothes." As to the second, he referred to the arguments advanced by the defence that the presence of a chicken meal out in the kitchen and not in the refrigerator was suggestive that the meal was being prepared, and when coupled with the fact that a carving fork was near to the body, it suggested that she was preparing a meal when disturbed, consistent with it being daytime on the Sunday rather than shortly before midnight on the Saturday. The judge added: "It is entirely a matter for you but the chicken may give you cause for thought." 29. In the light of this evidence, it is not surprising to find from Miss Hallett's note prepared for her final address to the jury that she deployed these matters as a principal argument in her contention that the alleged confession had not been made. 30. When the judge summed up, he dealt with the issue of timing. We think it helpful to set out what he said in full: "That leads to the last question posed by Miss Hallett: Was this a killing which took place as the confession said between 11pm and twelve midnight on the 30th August? Was it a night killing? Miss Hallett submits that save for the confession, the evidence points not to a killing late at night on the Saturday, but much more probably to a killing in daylight on the afternoon of the Sunday. What was found on that Monday morning? There was the dead body of an old woman dressed in day clothes, wearing a housecoat of some sort. Under or near her body was found a carving fork. A chicken which we can clearly see in the photograph, was discovered in a dish on top of a piece of kitchen furniture ready, you may think, for cooking. If you look at photograph 26, you can see the chicken. You can see the dish, on the right you can see what is plainly a fairly large refrigerator. The detective would have asked Dr Vanezis to try to help him establish the time of death, because what we were supposing at that moment is that they were trying to find out what had happened. He would have received from Dr Vanezis the usual dusty answer which all pathologists give about the inaccuracy, which is accepted of any estimate, as to the time of death. The detective would, no doubt, have pointed out, at that stage, what he wanted was not evidence as to whether any given set of facts was compatible with scientific truth, but what he wanted was help at the investigation stage. The Doctor would then have considered the evidence of the ambulanceman. What he found at 5 o'clock on that Monday morning, and he would have taken into account what he found himself at post mortem. He would have concluded, as he did conclude to you, that rigor mortis was established at 5am. He would then have said, as he said to you: 'There is an accepted rough guide that rigor mortis sets in around six hours after death becomes established around twelve hours after death, so my best guess, is that you should be looking at around late afternoon on Sunday 31st August to begin with anyway'. Sherlock Holmes would, no doubt, at that stage have said 'elementary'. She was disturbed while preparing the chicken for evening meal during Sunday afternoon with a carving fork in her hand, attacked and killed. That, of course, would be some eighteen hours later than the time confessed to. Dr Vanezis made this very clear to you. The time confessed to, that is the night of the Saturday, is not in any way excluded by the forensic evidence. Thirty-six hours or so to the establishment of rigor mortis from the time of death is perfectly possible. One question you will have to ask yourself is what, between 11 o'clock and midnight, is the chicken doing in the dish and not in the refrigerator? If you look at photograph number 9, a little point perhaps, it does look as although the bed seems to be undisturbed. What, if it was midnight, was she doing with a carving fork in her hand? The suggestion is, hearing an intruder she armed herself with it. Surely she would have been more likely to arm herself with a knife, whereas if it was on the afternoon of the Sunday, when she was disturbed she might, you may think, easily have had a carving fork in her hand for culinary purposes to perhaps prick the chicken before putting it in the oven. Members of the jury, those are things you consider when you are looking at the evidence in the case. Of course, scientific evidence, as I said, is perfectly compatible with the confessed time of late Saturday evening. It is entirely a matter for you but the chicken may give you cause for thought." 31. The grounds of appeal that relate to this aspect of the case fall into two distinct areas. First, it is said that documentation showing precisely what Professor Vanezis could say about the time of death was not disclosed to the defence and, second, that there is further evidence available from Professor Vanezis, and to a limited extent from another pathologist, that casts doubt upon the safety of the conviction. 32. The documentation that gives rise to the suggestion that there was a want of disclosure was discovered during the CCRC investigation into the case. The first is a police message form (number 93 in the inquiry) recording a telephone conversation between Professor Vanezis and DS Cruttenden at 10am on 4 September 1986 (three days after the post-mortem examination). The information section reads: "Phoned re time of death. At p.m. body had been a minimum of 12 hrs. More likely 18-24 hrs." Then after a line left blank, there appears the customary symbol for "therefore", followed by: "Time of death not after 2.30 1/9/86 or before 14.30 hrs 31/8." The form records that the action required was to "record the details only" and that the officers responsible for the inquiry had been informed. 33. The suggestion made by the CCRC in referring the case to the Court and by Mr Barnes in opening the appeal was that this document, which it is accepted was never disclosed to the defence, recorded information in the possession of the police that would have assisted the defence of which the defence were unaware. In particular, it was suggested that Professor Vanezis was giving time limits for the death wholly inconsistent with the alleged confession, and therefore the prosecution case. 34. On examining the document we were far from sure that it purported only to record what the doctor had said. One distinct possibility was that the first passage, which was broadly the same as the evidence which Professor Vanezis gave at trial, came from him and that the inference drawn beneath as to time limits was a conclusion the officer drew from that information rather than one that the doctor had stated. 35. When Professor Vanezis gave evidence to us, he doubted that he would ever have given any absolute time limit, as the document had been thought to suggest, because he would always qualify what he said by the imprecision of the estimating process. He thought it was more likely, as we had suspected, that the second passage was the thoughts of the officer consequent upon their conversation rather than what he had said. 36. We have no doubt at all that this is the case. On every other occasion when he has spoken about the matter, Professor Vanezis has refused to be drawn to any precise time limits because he views departures from the normal as a possibility. We have no doubt that the much more precise conclusion was put on the matter by the police officer and not by Professor Vanezis. 37. In only one other respect is there a departure from what Professor Vanezis said to the jury, and that is that in his evidence to the jury he put the most likely period between death and his examination as 12 to 24 hours. The message suggests that is "more likely" to be 18 to 24 hours rather than 12 to 18 hours. The doctor in evidence could not now explain why he had thought the longer period was more likely, if indeed he is accurately recorded. However, this information would not have assisted the defence. From their standpoint, a 12 to 24 hour period was, if anything, better than the shorter period, and certainly no worse. 38. Since not only must the critical information from Professor Vanezis have been disclosed to counsel before the doctor gave evidence, and since also it was led by the Crown at trial, we are satisfied that there was no material non-disclosure of this document. 39. The other document is a police internal request, date stamped 26 November 1986, which includes a passage: "Pathological and Forensic examination revealed that Mrs Crandell had died between 12.00 hrs on 31st August and 2.30 hrs on 1st September approximately." 40. We very much doubt whether this purely internal letter, which did not do any more than record one officer's assessment of the position rather than record any actual evidence and which merely sought an officer's assistance to carry out an inquiry, required to be disclosed. So far as we are aware, the "forensic examination" can have cast no light on the time of death despite the apparent reliance on it in the report. It seems to us that no use could properly have been made of the document at trial and as such the prosecution was under no duty to disclose it. 41. Thus we reject any suggestion that the prosecution failed in their duty in making available to the defence material that might assist the appellant. That, however, is only one part of our task in this regard as we now have to consider the evidence that Mr Barnes argues could have been employed by the defence if they were aware of its existence and which, he submits, might very well have had a major influence on the jury's decision if it had been heard. 42. Having seen further reports from Professor Vanezis and also Professor Crane, an eminent pathologist instructed by the CCRC, we were in no doubt that we should at the very least hear this evidence and we record the evidence that they gave. 43. Professor Vanezis again made clear at the outset that it was important to realise that time of death is "a difficult issue", particularly when there was only rigor mortis upon which to reach a conclusion and that one could not be accurate as to the time of death. He told us, as he had told the jury, that rigor mortis is normally complete at about 12 hours and remains fully established between 12 and 24 hours. Thereafter it gradually wears off until it has gone after 36 hours. He explained that there were a number of factors that influenced the timing, of which temperature was an important one. The higher the temperature, the shorter the various periods are likely to be. Other factors were age and the frailty of the person who had died, and he explained that the state related to the muscles of the person concerned and the less muscle there was, the shorter the periods are likely to be. He thought in this case the age of Mrs Crandell and her relative frailty as seen at post-mortem and in the post mortem photographs were factors militating against longer than usual periods. Another factor was the fire and the likely consequence that, for some part of the time at least, the body was likely to have been in a hotter than normal environment even though there was no suggestion that the area immediately surrounding the body caught fire and the smoke damage was to the upper part of that area. If there was refrigeration of the body, this might have slowed down the process to an extent, but we accept that the evidence certainly does not establish there was any refrigeration and we think suggests that it was unlikely. 44. Professor Vanezis was asked the critical question: namely, whether in his professional judgment death could have occurred 39 to 40 hours before his examination, taking into account all the various factors as they were known. His response was: "I would say that was extremely unlikely basing it on my own experience, but you can never be 100% sure. It is not impossible, but it is at one extreme end of the spectrum of possibility." 45. Cross-examined on behalf of the Crown by Mr Altman, Professor Vanezis was referred to the judge's summing up. He said that he could not really agree with the assessment attributed to him that death at 11-12pm on the Saturday was "perfectly possible", since whilst he accepted that it was possible, he would have to qualify that possibility as being extremely unlikely. 46. Professor Crane, whose considerable expertise, like that of Professor Vanezis, is not in doubt, agreed with the broad picture of timing painted by Professor Vanezis and also that both the factors of age and frailty and the likely temperature consequent upon the fire would militate against prolonged establishment and existence of rigor mortis. He, however, indicated that he could not characterise the chance of death late on the Saturday as "extremely unlikely" because of the imprecise nature of the exercise and that he would put it as "unlikely". 47. The Crown sought then to call a further pathologist, Dr Lawler, and we agreed. Dr Lawler's evidence broadly coincided with that of Professor Crane. He too thought it "unlikely" that death was on the Saturday, but he too did not think that it was possible to go as far as to say it was "extremely unlikely". 48. Mr Barnes argues quite simply that if the jury had heard Professor Vanezis give evidence in the terms that he gave evidence to us, that must have had an impact on the jury over and above that which was apparent from what was said at trial. 49. Mr Altman argues that there is no radical difference between what was said to us and what was said to the jury, and that the issue was properly left to the jury, who rejected it. He further submits that their conclusion is not surprising because there were features of the case that pointed strongly to guilt. 50. He says that there was never any cogent reason suggested why the witnesses should have effectively conspired against the appellant to have him convicted of a murder of which he was wholly innocent. He points out that there was no evidence of any collusion between the Wilsons on the one hand and Mrs Martin on the other. In this regard, he relies on the fact that Mrs Martin was only seen following the arrest of the appellant and although that was at the suggestion of Mrs Wilson, Mrs Wilson could not tell the police how to trace Mrs Martin. He points to a lack of any detail in Mrs Martin's account as being inconsistent with a story collectively invented by the witnesses. 51. Mr Altman also pointed to what he said were facts that the Wilsons could only have got from the murderer since they had never been released to the media. The principal such fact was that Mrs Crandell was wearing a nightdress and cardigan and that Mrs Wilson remembered a reference to blue which she thought referred to the nightdress. 52. Mrs Crandell was unusually attired when she died. Professor Vanezis recorded her as wearing: "A pair of stockings Three pairs of bloomers One shirt One skirt One corset One housecoat Three jumpers and five vests." He did not record a nightdress, but examination of the photographs, we believe, clearly reveals that one of the many layers of clothing was a nightdress. It was not blue in colour, but in all probability a pale pink with what appears to be a small floral pattern repeated at intervals across the material. One of the cardigans she was wearing was blue, although this was not a top layer, which was the housecoat, which was brown in colour. 53. We consider it to be difficult to imagine that a person would describe her clothing as being a blue nightdress with a cardigan over it if that person had seen her standing before she was attacked and then lying on the ground as depicted in the photographs. That is not to say that the confession can be demonstrated to be false because of this evidence. A killer, particularly one who has been drinking, may not after the event correctly recollect the clothing of his victim and even if he were to, there is no certainty that the Wilsons are completely accurate in their recollection some years after the conversation. However, we are quite sure that any jury would be unimpressed by the suggestion that the description allegedly given of the clothing could provide reassurance for doubts that they might otherwise entertain. 54. At the end of the day, the Court is quite sure that if the jury had heard the evidence which we heard from Professor Vanezis, it would have given the jury an additional cause for concern about the matter over and above the other matters to which the judge referred in his summing up. Nor do we believe that the judge's summing up would have been as it was if he had heard this evidence. Mr Barnes suggests the effect of the summing up on the pathological evidence was essentially that this aspect of the case was neutral, and we agree with this assessment. If the Court has been told that the Crown's own pathologist thought death on Saturday was "extremely unlikely", it is difficult to see how the judge could have thought it right to present this particular point as neutral and not favouring the defence. Having regard to the rest of the summing up, it seems likely that he would significantly have altered what he said. 55. What effect all this would have had on the jury, we are wholly unable to say. They would still inevitably have had to consider what the Crown said about the likelihood of falsification by the Wilsons and Mrs Martin, but they would have had to weigh this additional factor in the scales against these contentions. We find it impossible to say whether the outcome would have been the same or not, and applying the test as emphasised by the House of Lords in Pendleton [2002] 1 WLR 72 , we cannot view the resulting conviction as safe when this important professional judgment of the Crown's pathologist was never available to the jury. 56. For these reasons, this ground of appeal must succeed. It is unnecessary for us, therefore, to consider the other matters Mr Barnes would have raised if he had not succeeded on this first aspect of the case. So long after the events, the prosecution do not seek a re-trial. We therefore allow this appeal and quash the conviction.
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{"ConvCourtName": ["Crown Court At Maidstone"], "ConvictPleaDate": ["1991-02-14"], "ConvictOffence": ["murder"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Maidstone"], "Sentence": ["life imprisonment."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Stranger"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Female"], "VicAgeOffence": ["89"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Expert evidence", "Expert/medical evidence", "post-mortem examination.", "Witness testimony", "Medical", "Authority evidence /testimony"], "DefEvidTypeTrial": ["undermining the reliability of the evidence", "Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["safety of the conviction.", "against conviction", "Other (e.g., application for extension of time to appeal)"], "AppealGround": ["safety of the conviction.", "[documentation evidence]"], "SentGuideWhich": ["Section 9 of the Criminal Appeal Act 1995"], "AppealOutcome": ["allow this appeal and quash the conviction."], "ReasonQuashConv": ["important professional judgment of the Crown's pathologist was never available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
223
Neutral Citation Number: [2010] EWCA Crim 2260 Case No: 201000044 D1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 21 September 2010 B e f o r e : LORD JUSTICE LEVESON MR JUSTICE DAVIS MR JUSTICE LLOYD JONES - - - - - - - - - - - - - - - - - - - - - R E G I N A v PATRICIA ANN GRIPTON - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr M Grey appeared on behalf of the appeared on behalf of the appellant Miss T Lloyd-Nesling appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE LEVESON: I will ask Lloyd Jones J to give the judgment of the court. 2. MR JUSTICE LLOYD JONES: On 3 December 2009, at the Crown Court at Shrewsbury sitting at Wolverhampton before HHJ Onions, the appellant pleaded guilty to one count of perjury and was sentenced to 52 weeks' imprisonment suspended for 18 months, with a 28-day curfew requirement. She now appeals against conviction by leave of the Single Judge. 3. This matter has a considerable history, to which it is necessary to refer in a little detail. On the evening of 23 February 2004 the appellant was at her flat in the company of friends, a female, to whom I shall refer to as SA, a man named Watasoni Leqeti and a second man. SA and Leqeti left the flat together. SA alleged that Leqeti thereafter raped her in an alleyway near to the flat. Leqeti was subsequently arrested and charged. Leqeti's trial took place on 26 October 2004. 4. The appellant gave evidence on behalf of the prosecution. Both in her witness statement and in her evidence at trial she stated that she could not recall seeing any physical contact in her flat between the complainant and Leqeti. This evidence was in accordance with the evidence given by the complainant, but contrary to the account given by Leqeti who asserted that there had been consensual kissing between himself and the complainant in the appellant's flat. 5. Leqeti was convicted and sentenced to seven years' imprisonment. A year later, on 17 October 2005, the appellant gave a further statement to her solicitor in the presence of DC Wheel, the officer in the case of Leqeti. In the statement she said that she had seen SA and Leqeti kissing in her flat immediately prior to the alleged rape, and that SA had been "making advances" to Leqeti. She stated that her original statement to the police had not been true in this regard. 6. Leqeti lodged an appeal on the basis of this fresh evidence. The appeal was heard by the Full Court (Latham LJ, Gloster and Dobbs JJ) on 2 August 2006. The appellant gave evidence in accordance with her second witness statement at the hearing of the appeal. She said that she and SA had fallen out and argued since Leqeti's conviction. She said that her providing the second statement was a matter of conscience. She said that when providing her second statement she had been warned by her solicitor that she could get into trouble for it. She admitted that she had lied in her first statement and at court in order to help SA. 7. The appeal was allowed and a retrial ordered. The retrial eventually took place in July 2008 before HHJ Onions at Shrewsbury Crown Court. The appellant gave evidence for the defence and said that she had seen SA and Leqeti kissing in her flat prior to the alleged rape. 8. Following closing speeches, but prior to the summing-up, a juror asked a question through the court usher as to what the consequences would be if Leqeti were found not guilty. In particular, did it mean that the prosecution witnesses would be prosecuted for perjury, and if he was convicted would defence witnesses be prosecuted? The judge discussed the matter with counsel in the absence of the jury. The judge immediately indicated to counsel that he proposed simply to tell the jury that they should ignore the consequences of any verdict, they were a matter for the judge. 9. However prosecution counsel, Mr Linehan, volunteered the information to the judge that the answer to both questions was "No". The judge indicated that he was still minded simply to tell the jury to ignore the consequences of their verdict. However, following a request by the defence, he, in due course, also told the jury that whatever their decision was nobody in the case would face other proceedings in another court on another day. 10. The result of the retrial was that Leqeti was once again convicted. 11. On 18 December 2008, the appellant was arrested by DC Wheel for the offence of perjury. The appellant's solicitor read out a prepared document setting out what had been said at the retrial of Leqeti by the judge, following discussion with prosecuting counsel, that nobody would face prosecution. 12. We have been told by Mr Grey, in the course of his submissions today, that at the start of that meeting the appellant's legal representative, who had also represented Leqeti at his second trial, made the point to the officer about the representation which had been made by the Crown in open court on 16 July. Thereafter the appellant was bailed on police bail and returned to the police station some seven or eight times, during which period no decision was taken by the Crown Prosecution Service as to how the matter should proceed until July 2009 when she was charged. 13. In interview she agreed that she provided two conflicting accounts and had since corrected her first account. She said that she had not changed her account in order to get her friend, Leqeti, out of jail. She said she knew that she could be in trouble for changing her account. On 13 July 2009 she was charged. There was an application by the defence to stay the indictment as an abuse of process. 14. The defence submitted that the conduct of the prosecution had to be such as to justify a stay, regardless of whether a fair trial might be possible. Relying on R v Bloomfield [1997] 1 Cr App R 135, it was submitted that for the prosecution to revoke a decision not to prosecute, the decision having been announced in the presence of a judge, would bring the administration of justice into dispute. It was irrelevant that the decision was not made in the appellant's presence, had not been communicated to her and had been made when she had not been charged. 15. The judge (again HHJ Onions who had conducted a retrial of Leqeti) ruled that whilst Bloomfield was still good law it had been reviewed, along with other authorities, in R v Abu Hamza [2007] 1 Cr App R 27 . Previous authorities had been confined to cases where the person who seeks a stay as an abuse was the actual defendant at the time the representation was made. In the judge's view any reasonable bystander would have considered that the question from the jury at the retrial of Leqeti was an obvious reference to the appellant, as she was the witness who was really under threat from a prosecution for perjury. This was clear both from her admission as to lies and from the nature of the cross-examination of her by Mr Linehan. 16. Mr Linehan's words at the retrial were taken to mean that no one else involved in the case, including the appellant, would be charged with an offence. The appellant's position was clearly in prosecuting counsel's mind at the time. Contrary to counsel's submissions, any reasonable observer would conclude that the representation had been made, that the words were clear, and that the appellant, had she heard them, would have understood them to mean that she would not be prosecuted. The representation was unequivocal. The fact that the representation was made to a judge gave the case similarities to the case of Bloomfield , although the two cases could clearly be distinguished on other factual grounds. 17. However, in the judge's view there had been no evidence or any submission that the appellant had said or done anything to her detriment as a result of the representation. The appellant was now in the same position as she had been in 2005 when she made her second statement, as in 2006 when she gave evidence before the Court of Appeal, and in 2008 when she gave evidence at the retrial. She had known that she could get into trouble and that there would be potential consequences. There was no evidence that her position had been in any way harmed or altered as a result of the representation by Mr Linehan. 18. The judge considered that there was a clear public policy that an abuse of process argument should not normally succeed and matters that arose should be dealt with, if possible, as part of the trial process. There was a clear and defined public interest in prosecuting those who gave false and perjured evidence to juries. In the present circumstances the second limb of the test enunciated in Abu Hamza had not been met, ie the appellant had not acted to her detriment as a result of the representation, and therefore the case against the appellant should proceed. 19. Before this court Mr Grey, on behalf of the appellant, submits, first, that it was an abuse of process of the court for the Crown to prosecute the appellant in the circumstances where an unequivocal representation had been given by the Crown to the Court that she would not be prosecuted, even though the appellant had not acted to her detriment. Secondly, he submits that the judge erred in ruling that it was necessary for the appellant to show that she had suffered prejudice or acted to her detriment. Thirdly, he submits that the judge erred in ruling that he was bound by the test in Abu Hamza . Fourthly, he submits that the judge failed to give any consideration to the fact that the present case could be distinguished from the position in Abu Hamza on the facts. Fifthly, he submits that the judge failed to give sufficient consideration to Bloomfield . Sixthly, he submits that the judge failed to give consideration to the effect on the administration of justice of the prosecution's revocation of the decision not to prosecute. The jury in the case of Leqeti , it is said, was entitled to rely on what it was told by the judge. 20. On behalf of the Crown Miss Lloyd-Nesling submits first, that the appellant would not have had a legitimate expectation that she would not be prosecuted. She had been warned when she first provided her further statement on 17 October 2005 that she could face prosecution. Further she was unaware of what had been said by the prosecution at the retrial of Leqeti, and by the judge during that retrial, as she had not been present or represented in court at the time. She only became aware of what had been said following her arrest. Secondly, Miss Lloyd-Nesling submits that the appellant had not acted to her detriment or been prejudiced in any way, and that that is a requirement of the test as set out in Abu Hamza . Moreover, there was nothing exceptional in the present case for the proceedings to be stayed as an abuse on the ground that it would be unfair for the appellant to try them. 21. In Bloomfield the appellant had been charged with possession of drugs. At the plea and directions hearing in the Crown Court the prosecuting counsel approached the defence counsel and indicated that the Crown wished to offer no evidence against the defendant because it was accepted that he had been a victim of a set up. The prosecuting counsel did not wish to take the step, however, of offering no evidence that day because of the presence of central persons in the public gallery. 22. Accordingly, it was suggested that if the plea and directions hearing could be adjourned to a later date no evidence would be offered at that later date. The judge was told in his room by counsel of what had been agreed. He agreed to that course and announced in court that the hearing would be adjourned. The defendant in that case was fully informed as to the decision of the Crown. 23. A month later the Crown Prosecution Service informed the defendant that it intended to continue the prosecution. The reason given was that counsel appearing at the earlier hearing had no authority to indicate that the Crown had offered no evidence. No other reason was given subsequently to the Court of Appeal as to why that decision was considered to be wrong. 24. An application to stay on grounds of abuse of process was dismissed by the Crown Court and the defendant then pleaded guilty. On appeal this court quashed the conviction. This court considered that prosecuting counsel had ostensible authority to conduct the case in court, including giving indications as to the future conduct of the proceedings. Secondly, this court held that it was an abuse of process to proceed. The court said this: "Looking at the case in the round, it seems to us that this is an unusual and special situation. The decision to defer the trial on 20 December was taken for the benefit of the prosecution in order that they would not be embarrassed when it was said in court that no evidence was being offered. The statement of the prosecution that they would offer no evidence at the next hearing was not merely a statement made to the Defendant or to his legal representative. It was made coram judice, in the presence of the judge. It seems to us that whether or not there was prejudice it would bring the administration of justice into disrepute if the Crown Prosecution Service were able to treat the court as if it were at its beck and call, free to tell it one day that it was not going to prosecute and another day that it was. Of course the circumstances of each case have to be looked at carefully, and many other factors considered... We are not seeking to establish any precedent or any general principle in regard to abuse of process. We simply find that in the exceptional circumstances of this case an injustice was done to this Appellant." 25. Abu Hamza was concerned with very different circumstances. One of the issues there was whether the defendant had been led by the police or the prosecuting authorities, expressly or impliedly, to believe he would not be prosecuted. Lord Phillips CJ stated at paragraph 50: "As the judge held, circumstances can exist where it will be an abuse of process to prosecute a man for conduct in respect of which he has given an assurance that no prosecution will be brought. It is by no means easy to define a test for those circumstances, other than to say that they must be such as to render the proposed prosecution an affront to justice. The judge expressed reservations as to the extent to which one can apply the common law principle of 'legitimate expectation' in this field, and we share those reservations. That principle usually applies to the expectation generated in respect of the exercise of an administrative discretion by or on behalf of the person whose duty it is to exercise that discretion. The duty to prosecute offenders cannot be treated as an administrative discretion, for it is usually in the public interest that those who are reasonably suspected of criminal conduct should be brought to trial. Only in rare circumstances will it be offensive to justice to give effect to this public interest. 51. Such circumstances can arise if police, who are carrying out a criminal investigation, give an unequivocal assurance that a suspect will not be prosecuted and the suspect, in reliance upon that undertaking, acts to his detriment." The Court of Appeal then referred to R v Croydon Justices ex parte Dean [1994] 98 CAR 76, R v Townsley, Dearsley and Bretscher [1997] 2 Crim App R 540, and R v Horseferry Road Magistrates' Courts, ex parte Bennett [1994] 1 AC 42 and then referred to Bloomfield and continued at paragraph 54: "These authorities suggest that it is not likely to constitute an abuse of process to proceed with a prosecution unless (i) there has been an unequivocal representation by those with the conduct of the investigation or prosecution of a case that the defendant will not be prosecuted and (ii) that the defendant has acted on that representation to his detriment. Even then, if facts come to light which were not known when the representation was made, these may justify proceeding with the prosecution despite the representation." 26. In the present case, first, no point has been taken here or below as to the authority of Mr Linehan to make the statement he made on behalf of the Crown. Secondly, there can be no doubt that the statement by the prosecution in relation to future prosecutions was intended to relate to the position of this appellant, and was understood by everyone in court to do so. It was an unequivocal statement on behalf of the Crown that the appellant would not be prosecuted for perjury. 27. Thirdly, so far as the approaches propounded in Bloomfield and Abu Hamza are concerned, we note that neither was intended by the court adopting it to be a comprehensive binding rule. In Bloomfield Staughton LJ expressly stated that the court was not seeking to establish any precedent or any general principle in regard to abuse of process. Similarly in Abu Hamza Lord Phillips CJ emphasised the difficulties of propounding a test of abuse of process, and the formulation adopted in that case is expressed in terms that conduct would be unlikely to constitute an abuse of process unless certain criteria were satisfied. He was certainly not laying down requirements which would be indispensable in any case. The reason for this is clear: the courts are here concerned with considerations of fairness and they must be free to respond to the circumstances of each case. 28. It is not difficult to see why, exceptionally, in the particular circumstances of Bloomfield , the court concluded that to continue with the prosecution would be an abuse of process, notwithstanding the absence of any detrimental reliance on the part of that appellant. The ultimate question will be whether to proceed with the prosecution would be an affront to justice. 29. Fourthly, turning, therefore, to the particular circumstances of this case, it is not suggested that this appellant did rely on Mr Linehan's representation to her detriment. As the judge pointed out, her decision did not change after she first admitted giving false evidence. It remained the same as in 2005 when she made her second statement, as in 2006 when she gave evidence before the Court of Appeal, and as in 2008 when she gave evidence at the retrial. 30. Fifthly, the question for us, therefore, is whether in the absence of any detrimental reliance by the appellant this prosecution was nevertheless an abuse of process. In our view it was not. We do not attach any particular significance to the fact that the representation was made in other proceedings and before the appellant was charged with perjury. However, we do consider it highly significant that the appellant was not aware of the representation until after she had been arrested for this offence. The representation was made in court in proceedings in which she had been a witness. She was not present when it was made, nor was it made in the presence of anyone representing her. Her understanding remained, no doubt, that she could be prosecuted for perjury. That remained her understanding until she was arrested. 31. Sixthly, the fact that the Crown's statement was made in public before the court is, of course, a matter of importance. It is clearly undesirable, and a matter of concern, that the Crown, having informed the court of its position, should change its stance on a matter of such importance in the absence of a good reason. We note that no reason appears to have been given at the time for the change of position, nor have we been provided with any information as to why the Crown did change its position in this case. However, in fairness to Mr Linehan we record that we have been told that he played no part in the Crown's change of position. 32. However, notwithstanding this fact and having regard to the particular circumstances of this case, to which we have just referred, we are not persuaded that to permit these proceedings to continue would be an affront to justice. 33. Finally, we note that it is clear from the judge's very careful and thorough ruling that he had firmly in mind the fact that this appellant had had to live with the potential consequences of her decision since 2005 when she made her second statement. Those matters are matters which he very properly took into account in passing sentence. 34. I would add that the Sexual Offences Amendment Act 1992 makes it an offence to publish the name and address of the victim, or any matter which might lead to the identification of the victim of a sexual offence identified in that Act. The anonymity of the victim in the matter of Leqeti is protected by section 1 of that Act. MR JUSTICE LLOYD JONES: Mr Grey, can I ask for your assistance on the point about the date? I understand that the charge was actually made on 13 July 2009; is that right? MR GREY: Yes, she was charged on 13 July. LORD JUSTICE LEVESON: That is the date that Mr Grey gave us. MR JUSTICE LLOYD JONES: I wrote it down incorrectly as September. Thank you very much. MISS LLOYD-NESLING: May I just say in relation to Mr Linehan, in the light of the observations of his Lordship about it being a matter of concern that the Crown changed its position, that the decision was made after obviously those representations that he made, and there is absolutely no criticism at all, as I understand it, not from the Crown's point, not from the defence, not from anyone, of Mr Linehan. The decision made to change the Crown's position was not a decision in which he had a part. LORD JUSTICE LEVESON: Thank you.
{"ConvCourtName": ["Crown Court at Shrewsbury"], "ConvictPleaDate": ["3 December 2009"], "ConvictOffence": ["perjury"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["appellant pleaded guilty"], "PleaPoint": ["the defendant then pleaded guilty."], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Shrewsbury"], "Sentence": ["52 weeks' imprisonment suspended for 18 months, with a 28-day curfew requirement."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["She"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["her flat"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["she agreed that she provided two conflicting accounts and had since corrected her first account."], "DefEvidTypeTrial": ["not acted to her detriment or been prejudiced in any way", "abuse of process of the court"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["Her understanding remained, no doubt, that she could be prosecuted for perjury. That remained her understanding until she was arrested."], "VicImpactStatement": ["data not available"], "Appellant": ["appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeals against conviction"], "AppealGround": ["abuse of process of the court", "judge failed to give any consideration to the fact that the present case could be distinguished from the position in \n Abu Hamza", "judge erred in ruling", "judge failed to give sufficient consideration to \n Bloomfield\n .", "judge failed to give consideration to the effect on the administration of justice"], "SentGuideWhich": ["Sexual Offences Amendment Act 1992"], "AppealOutcome": ["this court quashed the conviction."], "ReasonQuashConv": ["prosecuting counsel had ostensible authority to conduct the case in court, including giving indications as to the future conduct of the proceedings. Secondly, this court held that it was an abuse of process to proceed.", "in the exceptional circumstances of this case an injustice was done to this Appellant.\""], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["Crown Court At Shrewsbury"], "ConvictPleaDate": ["2009-12-03"], "ConvictOffence": ["perjury"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know", "After re-trials"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court At Shrewsbury"], "Sentence": ["52 weeks' imprisonment suspended for 18 months, with a 28-day curfew requirement."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Female"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Admits to conflicting accounts"], "DefEvidTypeTrial": ["Offender denies offence", "Question admissibility of some item of evidence"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["Her understanding remained, no doubt, that she could be prosecuted for perjury. That remained her understanding until she was arrested."], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeals against conviction"], "AppealGround": ["judge failed to give consideration to the effect on the administration of justice", "judge failed to give sufficient consideration to \n Bloomfield\n .", "judge failed to give any consideration to the fact that the present case could be distinguished from the position in \n Abu Hamza", "abuse of process of the court", "judge erred in ruling"], "SentGuideWhich": ["Sexual Offences Amendment Act 1992"], "AppealOutcome": ["this court quashed the conviction."], "ReasonQuashConv": ["in the exceptional circumstances of this case an injustice was done to this Appellant.\"", "prosecuting counsel had ostensible authority to conduct the case in court, including giving indications as to the future conduct of the proceedings. Secondly, this court held that it was an abuse of process to proceed."], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
342
Neutral Citation Number: [2014] EWCA Crim 747 Case No: 2013/03862/A6 , 2013/04457/A3 , 2013/04460/A2 , 2014/00377/A4 2013/04689/A5 , 2013/03756/A8 2013/03550/A5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/04/2014 Before: THE LORD CHIEF JUSTICE OF ENGLAND and WALES LORD JUSTICE TREACY and MR JUSTICE SIMON - - - - - - - - - - - - - - - - - - - - - Between: REGINA Respondent - and - JURANIR SILVERTRE GOMES MONTEIRO and others Appellants - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment. Copies of this transcript are available from: WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7414 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Adam Morgan for the appellant Gomes Monteiro James Murray-Smith for the Respondent in the appeal of Gomes Monteiro Edward Boateng-Addo for the appellant NT Duane Bridger for the appellant Smith Mohammed Hussain for the applicant Varey Michael Edmonds for the applicant Shakespeare Muthupandi Ganesan for the applicant RAB Henry Day for the applicant LD John Price QC and Benedict Kelleher for the Respondent in the other appeals Hearing date: 30 January 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Thomas of Cwmgiedd, CJ : 1. The court ordered these six appeals and applications to be heard together so that it could review whether the guidance given in R v Povey [2008] EWCA Crim 1261 by Sir Igor Judge CJ (as he then was) was being followed and applied, and so that it could decide whether any further guidance was required. We are very grateful to the Ministry of Justice and Mr John Price QC for the very considerable assistance they have given in obtaining the information to enable us to do this. The offences 2. The principal offences in relation to offensive weapons are those under s.1 of the Prevention of Crime Act 1953 (as amended) (the 1953 Act) and s.139 and s.139A of the Criminal Justice Act 1988 (CJA 1988). 3. In addition on 3 December 2012 amendments to the 1953 Act to add s.1A and to the CJA 1988 to add s.139AA came into force. S.139AA of the CJA 1988 provides for a mandatory minimum sentence on those over 18 of six months imprisonment (save where it was unjust to do so) for using a knife to threaten in a public place or school. Provision is also made for a similar minimum sentence of four months for those aged 16 and 17. S.1A of the 1953 Act makes broadly similar provision in relation to offensive weapons. The guidance in R v Povey 4. In R v Povey , Sir Igor Judge made clear the dangers caused by carrying knives and the escalation that had occurred in the number of offences involving knives and in particular the carrying of knives in public places. He made clear that sentences passed by courts must focus on the reduction of crime, including its reduction by deterrence and the protection of the public. This court in further judgments and the subsequent guidelines issued by the Sentencing Council have made clear the seriousness with which the use of a knife or similar weapon in any crime must be treated. 5. It is evident, from appeals before this court from the Crown Court and in the appeals before us, that in the Crown Court the guidance given by Sir Igor Judge and repeated by him in other cases is being followed. No further guidance is required. 6. However for offences that either do not come to court where cautions are administered or are dealt with in the Magistrates’ Court and Youth Court, the position is more complex, particularly in relation to those between 10 and 15 and those aged 16 and 17. 7. This is illustrated by some of the matters that arose in the appeals before us. For example, a caution was given to one of the appellants (Gomes Monteiro) for possession of a flick knife at a school when he was 15 – see paragraph 31 below. Another appellant (RAB) had at the age of 14 received in accordance with the statutory regime a nine month referral order for possession of a lock knife in a public street – see paragraph 84 below. A co-defendant of another appellant (Smith) who was nine months younger than Smith had received a youth supervision order for the offence for which Smith received a sentence of 30 months imprisonment - see paragraphs 56 to 59 below. A Magistrates’ court had imposed a community order on another appellant (Varey) for a second offence of carrying a knife whilst stealing from shops - see paragraphs 66 and following below. 8. We therefore asked for information about the way in which the police, the Magistrates and the Youth Court approached the imposition of cautions and sentencing respectively. ACPO Guidance on the use of cautions 9. Cautions in relation to knife crimes are issued by the police in accordance with Guidelines issued by ACPO entitled Guidelines on the investigating, cautioning and charging of Knife Crime Offences issued in July 2009. It states: “The starting point for police will be an expectation to charge 16 and 17 year olds (unless there are exceptional circumstances) in all cases. In the case of any young person aged 15 or under in the cases of simple possession with no aggravating factors, the starting point will be the issuing of a warning” 10. Account is also taken of the ACPO Youth Offender Case Disposal Gravity Matrix; its guidance is: “It is recommended that forces follow a national agreement to interpret Knife-Crime offences as follows: The first arrest of a youth under 16 for simple possession of an Offensive Weapon or Sharp Pointed Blade, with no aggravating factors, will result in the first instance with a youth conditional caution. This must be supported by an appropriate YOT intervention, preferably with elements focussed on anti-knife crime education. A youth aged 16 or over will normally be charged. The second arrest of a youth under 16 for simple possession of an Offensive Weapon or Sharp Pointed Blade will result in a charge (unless, in exceptional circumstances, 2 years have passed and it is considered appropriate to give another youth conditional caution). The first arrest of a youth of any age for simple possession of an Offensive Weapon or Sharp Pointed Blade, with aggravating factors, will result in the first instance with a charge.” 11. The most recent version of this matrix was issued in March 2013. It is essentially unchanged (save to make reference to youth conditional cautions in place of warnings). It makes clear, however, that an offence under s.139A or s.139AA of the CJA 1988 or under s.1A of the 1953 Act committed by a youth aged 16 or over should normally result in a charge and should not be dealt with by an out of court disposal. The Magistrates Courts and the Youth Court 12. The Guidance for Magistrates was revised in August 2008. Although that Guidance referred to the earlier decision which R v Povey followed, the timing meant Povey had not been handed down and the original guidance did not refer to the increase in knife crime as set out by Sir Igor Judge in that judgment . However, the Sentencing Guidelines Council issued a Note (with effect from 4 August 2008) headed “Sentencing for possession of a weapon – knife crime”, which specifically sets out the effect of the decision in Povey on the guideline. It is therefore essential that Magistrates’ Courts strictly apply the guideline as explained in this Note in relation to knife crime and the starting point of 12 weeks custody for the lowest level of offence involving the use of knives. 13. In the Youth Court the principles are set out in the Guideline of the Sentencing Guidelines Council dated November 2009 entitled: “ Overarching Principles: Sentencing Youths”. There are also a number of statutory restrictions; for example a first time offender under 15 who pleads guilty to one of the offences relating to knives or offensive weapons can only be made subject to a referral order (as we have mentioned at paragraph 7 above). The statistics 14. In the first nine months of 2013 there were 12,132 offences under s.1 of the 1953 Act and s.139 and s.139A of the CJA 1988 Act. 18% resulted in a caution, 28% resulted in immediate custody. The results have been broadly consistent for the past 5 quarters; the 28% of cases resulting in custody can be seen as an increase from 18% current before Povey , whereas the number of cautions is falling. 15. 813 offences were committed by those between 10 and 15. 43% were given a police caution and 47% a community sentence. Only 4% were given an immediate custodial sentence. 16. We were provided with statistics for 2013 that showed that out of the 89 over 18s who had pleaded guilty or been convicted of offences under s.139AA of the CJA 1988 or s.1A of the 1953 Act, 49 had been given sentences of immediate custody; 3 had received a caution; 7 community service and 19 a suspended sentence. Three were 18, 16 and 17 year olds; 10 had been sent to immediate custody. Conclusion 17. As we have stated, no further guidance is needed in relation to the Crown Court pending the issue of a guideline by the Sentencing Council. However there are two observations we make. 18. First, it is important that the Youth Court plays the closest attention to the guidance given in Povey . Given the prevalence of knife crime among young persons, the Youth Court must keep a very sharp focus, if necessary through the use of more severe sentences, on preventing further offending by anyone apprehended for carrying a knife in a public place and to securing a reduction in the carrying of knives. Such sentences fulfil the principles applicable to the sentencing of such persons as set out in s.142A of the Criminal Justice Act 2003 and the Sentencing Council Guidelines. The appeals of NT and RAB illustrate the very serious consequences that can follow from the carrying of knives by young persons and why it is of great importance that the Youth Court maintains the sharp focus called for in Povey by imposing appropriate sentences that will contribute to preventing further offending and to a reduction in knife crime. 19. Second, it is important particularly in relation to knife crime that the guidance given in respect of cautions is aligned to the sentencing practice (as it should be in the light of our observation) in the Youth Court, the Magistrates’ Court and the Crown Court. There is an urgent need for this to be done. 20. We turn to the six cases. JURANIR SILVETERE GOMES-MONTEIRO The background 21. On 27 October 2012 there was a party to celebrate a birthday in Hackney. Many of those who attended were of the Guinea Bissau community in London. Amongst those was Jason Dos Santos. 22. Through various social networking sites others who had not been invited came to the party. Some belonged to a gang called “the Portuguese Mafia”. At the party, probably as a result of a previous incident at an earlier party, members of the gang set about one of the others. There was a serious and violent fight within the house between a number on both sides. Knives were used and at least one was seriously stabbed. Jason Dos Santos escaped from the house, most likely through the back garden, and ran down the street with others, being pursued by members of the gang. He was caught by eight members of the gang who attacked him with at least one knife and a belt, kicked and punched him. He received serious injuries which we shall describe. The incident was caught on CCTV. 23. A woollen hat belonging to the appellant, then aged 18, was recovered from the scene of the stabbing. Of all the participants in this serious violence he was the only one to be arrested and tried. On 17 May 2013 at the Crown Court at Snaresbrook before Mr Recorder Holborn and a jury he was convicted of wounding with intent contrary to s.18 of the Offences against the Person Act 1861 (the 1861 Act) and having an offensive weapon. He was subsequently sentenced by the judge on 21 June 2013 to nine years detention in a young offender institution for the offence contrary to s.18 of the 1861 Act with a concurrent sentence of one year for having an offensive weapon. He appeals against sentence by leave of the Single Judge. The seriousness of the offence 24. We consider first the seriousness of the offence. The judge found that the appellant, although he might not have been a member of the Portuguese Mafia gang, had joined in with that gang on that night at the party and involved himself in the culture of that gang. It is clear that he had had a substantial quantity of drink. He then joined in the pursuit of Jason Dos Santos down the road. 25. It is common ground on the appeal that the appellant approached the scene of the attack approximately 30 seconds after the main group chased the victim along the street. It is clear on the judge’s finding and the jury’s verdict that he joined in the attack at that stage whilst another gang member stabbed Jason Dos Santos and others subjected him to a vicious and brutal beating. The judge was satisfied that the appellant used a belt in the attack on Jason Dos Santos and stamped on him. The judge was satisfied that the jury convicted the appellant on a joint enterprise basis because, apart from using the belt and stamping on Jason Dos Santos, he was fully aware that Jason Dos Santos was being stabbed. 26. It has been submitted that those findings are open to criticism. We cannot see any basis for criticising them. The judge found first that he was a , but not the , leading member of the group that attacked Jason Dos Santos; second that he most certainly did not have a subordinate role in the attack. We again do not see how those findings can be criticised given the fact that the judge heard the evidence at the trial. The harm caused 27. We next turn to the harm caused. The judge obtained for the purposes of sentencing statements from the doctors at the hospital about the injuries sustained by Jason Dos Santos. He also had statements from two police officers who had tended him at the scene and taken him to the hospital. We see no reason to criticise the judge for taking into account all of that evidence. 28. There were a total of eleven wounds inflicted on Mr Dos Santos, three on the torso (one of which was to the chest), six on the legs and two on the scalp. They required stitching in theatre. They had a lasting physical and emotional effect on him. One of the wounds passed deeply behind the right femur. He was in hospital for two to three days. It is quite clear from the statement of the police officers that there was significant bleeding at the scene and on the way to hospital and the victim was veering in and out of consciousness. 29. Mr Dos Santos also made a victim personal statement in which he described the longer term effect of the attack on him; although he had made a good physical recovery (apart from the scarring and difficulty in bending and moving his leg) he did not go out to parties and did not trust people. The sentence 30. The judge placed the offence into category 1/category 2 of the Guideline; it was submitted on behalf of the appellant that the judge should have concluded the offending behaviour fell within category 2, principally on the ground of his lesser role; as we have set out we cannot accept this. This was, in our view, an offence within category 1. A person who has caused the injury of the type caused in this case and has the culpability of participating in an attack of this type in a leadership role, is plainly within category 1. The use of a knife in a public street is a very serious aggravating factor. 31. The appellant was only 18 both at the time of the attack on Jason Dos Santos and his conviction. Nonetheless he had a caution imposed by the Cambridgeshire Police for carrying a flick knife on school premises imposed on 29 March 2010 (when he was 15) in accordance with the guidance to which we have referred at paragraphs 9 to 11 above and a conviction for common assault on 17 January 2012 for which he had received a referral order. We take the view that a previous conviction for the possession of any bladed article, but particularly a knife such as a flick knife, is a seriously aggravating factor in a subsequent offence involving a knife for the reasons we have given. 32. The only mitigating factors were his age and his working on a part-time basis whilst also engaging in full-time education; he spoke a number of languages. He had obtained eight GCSEs with good grades and had gone on to study art as well as travel and tourism. 33. In the light of the factors we have set out, particularly his use of the belt, his knowledge of the use of the knife in the attack and his previous caution for possession of a flick knife, there is no proper ground for criticising the sentence imposed by the judge. The appeal is dismissed. NT The background 34. On the evening of Monday 18 February 2013 KW (the victim) who was then aged 14, had been at McDonald’s in Lewisham with friends. The appellant, who was born on 10 November 1999 and then aged 13, and another youth, SB, confronted the victim wanting a battery for a mobile phone. Nothing came of that but the victim and his friends went to the Ladywell Youth Club to roller skate. The appellant and his friends also went to the same club. 35. When the youth club closed at 9.15 p.m. the youths congregated outside. An argument developed between another of the appellant’s friends, TM, and a girl. TM turned on the victim. That fight descended into insults and violence between a number of those present, including the appellant. The victim hit back at TM and the appellant. The victim who was still on roller skates, then calmed down and skated a short distance away. The appellant ran after him, produced a knife and stabbed the victim twice in the chest and abdomen. The victim described the knife as a fat knife with a long blade; one witness described it as 2.5 inches wide, but not that long. Another as a kitchen knife. It was never found. TM ran off. The victim collapsed. He was taken to hospital by helicopter and underwent emergency surgery. The appellant was interviewed the following day and made no comment on the advice of his solicitors. 36. On 2 July 2013 the appellant was convicted at the Crown Court at Woolwich before His Honour Judge Moss QC and a jury of attempted murder. He was subsequently sentenced on 26 July 2013 to a 13 year extended sentence under s.226B of the Criminal Justice Act 2003, comprising a custodial term of ten years and three years extended licence. His application for permission to appeal had been referred to the court by the Registrar. We grant leave. The seriousness of the offence 37. We consider first the seriousness of the offence. On the jury’s verdict the appellant had attempted to kill the victim. The judge who had had the benefit of hearing the evidence found that the appellant had come to the youth club on that evening armed with a knife; the judge expressly rejected the applicant’s evidence that he had been given a knife at the scene. The harm caused 38. It is clear that the harm was of a very serious level. The wound was so deep that the knife entered through the chest and penetrated the kidney. He was found to have a collapsed lung, a penetrating gastric injury, a shattered spleen and very serious renal injury. He underwent emergency surgery, including the removal of the spleen. He was in the high dependency unit for two days; his wounds have healed, but he will require life-long antibiotic medication. The judge was satisfied that he was lucky to have survived. The aggravating and mitigating features 39. An aggravating feature of the case was that the applicant, despite the fact that he was then only 13, had a number of previous convictions. i) On 7 July 2011 he had been convicted of common assault at the Youth Court and received a six month referral order. He had been part of a group that had surrounded a 14 year old girl in a park; he was said to have held a knife to her throat and demanded her phone. Although he pleaded guilty to the assault he denied possession of a knife. ii) On 10 May 2012 he was convicted of assault occasioning actual bodily harm and received a nine month rehabilitation order. The case against him was that he had taken a magazine from the victim, and then assaulted the victim punching him in the face. iii) On 20 December 2012 he was convicted of disorderly behaviour and received a conditional discharge. He had used threatening and abusive language to a bus driver. As the judge rightly commented, he had a pattern of offending behaviour that was of great concern. 40. It is clear from the pre-sentence report that the applicant had had a difficult home life, living first with his mother and then for some years with his father with little contact with his mother. He developed emotional and behavioural difficulties at school and was transferred to a school to cater for children with those needs. At that school and at the secure children’s home at which he had been placed after his remand for the purposes of these proceedings, reports showed his ability to do very well at subjects but to have serious behavioural problems. An assessment carried out showed that he had suspected Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder; he had then been assessed as having moderate to high Attention Deficit Hyperactivity Disorder, Conduct Disorder and Oppositional Defiance Disorder. He was being placed on medication. The judge also had a report from the secure children’s home. 41. The appellant accepted that he had stabbed the victim. Although he continued to deny that he intended to cause serious injury or to kill the victim, the writer of the pre-sentence report accepted that the appellant showed genuine remorse for what he had done. The writer of the pre-sentence report was nonetheless of the view that the applicant presented as a high risk of causing serious harm. The finding of dangerousness 42. The judge concluded that he was a youth who met the dangerousness criteria of s.226B of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012). He considered that an extended determinate sentence was the appropriate sentence. 43. In R v Burinskas [2014] EWCA Crim 334 this court set out at paragraphs 24-30 the main features of the operation of the provisions of LASPO relating to extended sentences (s.226A) and at paragraphs 41-44 the approach that a court should follow when applying the dangerousness provisions of the Act. It is not necessary to make any separate observations in relation to s.226B in relation to this appeal. 44. On the appellant’s behalf it has been contended that the judge was not entitled to make the finding of dangerousness and should not have done so without obtaining a full psychiatric report. 45. We were provided with a more recent report from the secure children’s home at which the appellant was held. His medication had been changed and his behaviour had improved significantly; he had also shown more commitment to his learning and engagement with the staff; there has been a vast improvement in his school reports. He was responding well to the offending behaviour programmes. 46. We have carefully considered the further material before us. It does not cast any doubt on the basis on which the judge proceeded. On all the evidence the judge was entitled to make a finding of dangerousness. He had heard the evidence at the trial; the pre-sentence report and the report from the secure children’s home provided considerable information about his mental state. It was not necessary for the judge to have a psychiatric report. The length of the sentence 47. It was also contended that a custodial sentence of ten years was manifestly excessive. 48. In Attorney General’s Reference 127 of 2010 [2011] EWCA Crim 760 , [2011] Cr App R (S) 99 this court, drawing on the Sentencing Guidelines Council’s youth sentencing guidance, set out at paragraph 17 a guide to the proportion of the sentence of imprisonment for an adult prisoner a sentencing court should impose when considering such a sentence for a person of the age 15, 16 and 17, having regard to both his chronological age and his maturity. For a person of 13 that proportion will be even lower. 49. It seems to us in the light of the further information before us, particularly the effect of the medication, his real engagement with the staff at the secure children’s home and the youth of the appellant, the custodial term of ten years for a person of the appellant’s youth was too long. We propose therefore to quash the custodial term of ten years, but substitute for it a custodial term of seven years, leaving in place the extension period. We therefore allow the appeal to that extent; his sentence will therefore be an extended sentence of ten years, comprising a custodial term of seven years and an extension period of three years. RHYS SMITH The background 50. On 10 November 2011 the appellant (born on 4 May 1994 and then aged 17) and a co-defendant, Willis (born on 9 February 1995 and then aged 16), approached a group of young males and females aged about 16 at a bonfire and firework night in a park in Rye. After speaking amicably, Willis and the appellant began shouting and swearing at the group, claiming to be from a gang in London. Willis pulled out a knife and held it to the throat of one of the young people. When another of the group of young people intervened, Willis held the knife to his throat. Willis then waved the knife around at the faces of the young group, saying that he was going “to do” all of them. Willis was challenged by one of the group and then backed off shouting and swearing. 51. The appellant then asked Willis for the knife, took it from him and shouted at the group holding the knife outstretched: “Do you think I’m a prick?” He then held the knife to the face of one of the group saying “Do you think I’m a dickhead? Do you not think I will stab all of you including you two girls?” It was clear that the group of young persons was very frightened. 52. The police were called and the appellant and Willis were detained. The knife had been thrown away. The appellant told the police it was in the bin. It was a kitchen knife with a serrated blade about four inches long. 53. At his interview the appellant gave a prepared statement saying he was in drink, apologising for his behaviour and saying he would not do so again. The procedural history: the sentences passed on the appellant and Willis 54. Willis and the appellant were bailed to attend the Hastings Magistrates’ Court on 20 November 2011. Willis attended and entered a plea of not guilty; the appellant did not attend. A warrant was issued and the matter was adjourned for two weeks to 4 December 2012. At the hearing on 4 December 2012 Willis was committed for trial at the Youth Court, as the warrant against the appellant had not been executed and Willis, though only nine months younger than the appellant, was still only 17. 55. On 6 December 2012 the appellant was arrested. He was then sentenced at the Canterbury Magistrates’ Court to a period of imprisonment for other matters. On 20 December 2012, when he was 18, he pleaded guilty at Hastings Magistrates’ Court to possession of a bladed article and was committed for sentence. On 31 January 2013 in relation to the events we have described he was sentenced at the Crown Court at Lewes by His Honour Judge Kemp to 30 months detention at a Young Offender Institution. 56. Willis changed his plea on 23 April 2013 shortly before his trial that had been fixed in the Youth Court for 1 May 2013. He had convictions for malicious damage in 2007, robbery in 2009, battery in 2010, and racially aggravated intentional harassment in 2011. He was sentenced by the Youth Court at Eastbourne on 4 June 2013 to a Youth Rehabilitation Order with programme and supervision requirements. 57. We asked for enquires to be made as to whether the Youth Court at Eastbourne was aware of the sentence passed on the appellant. There was no record and no recollection that the matter had been drawn to the attention of the Youth Court. We infer that it is highly unlikely that the Youth Court was told. The CPS accepts that it was at fault in failing to draw the sentence imposed on the appellant to the attention of the Youth Court. It has resulted in serious injustice. The basis of the appeal 58. The appellant had a history of offending behaviour. In April 2009 he was given a four month referral order for theft and possession of cannabis. In March 2010 he was given a further six month referral order for battery. In November 2010 he was given an 18 month referral order for theft, but that was revoked in April 2011 when he was sentenced to a four month detention and training order. He had further convictions for theft and other dishonesty in 2012. In September 2012 he was given a conditional discharge by Magistrates for possession of a prohibited weapon – a device for the discharge of CS gas. At the time of sentence he had unpaid fines and other orders totalling £810.10 and was subject to an 18 month suspended sentence; he had not complied with the conditions; he had breached them twice and committed two offences during its operation. 59. The appellant appeals by leave of the Single Judge solely on the grounds of disparity with the sentence imposed in the Youth Court on Willis. He did not seek leave on the grounds that the sentence was either wrong in principle or manifestly excessive viewed on its own, given the seriousness of the offence and his past offending behaviour. As the Single Judge rightly observed in granting leave to appeal, though the sentence was severe, it was not manifestly excessive in the light of the offence and the previous convictions. An extension of time was granted by the Single Judge. 60. The sentence passed by the Youth Court is inexplicable given the gravity of the offence committed by Willis. He should have received a significant custodial sentence in the form of a Detention and Training Order. The disparity in their punishment, even taking into account the more serious prior offending behaviour of the appellant and the fact he was older by nine months, was unjust: see the discussion at paragraphs 7 and 8 of R v Coleman [2007] EWCA Crim 2318 . Accordingly we quash the sentence of 30 months youth custody (though entirely merited) and pass in its place a sentence of 20 months youth custody. PETER WILLIAM VAREY The background 61. In the early afternoon of 3 November 2013 the applicant was shopping at an ASDA supermarket. He was seen to put an item into his pocket, discard the other items and make to leave. When he was stopped by security guards, he produced a Stanley knife from his pocket and threatened the guards. They backed away and he ran from the store. 62. On the following day, 4 November 2013 the applicant entered Millets where he stole a North Face jacket. 63. Some days later on 26 November 2013 the applicant was seen to be acting suspiciously in Boots. He was searched and found to be in possession of a Stanley knife. He was arrested 64. On 12 December 2013 at the Crown Court at Bradford he pleaded guilty to three offences. He was sentenced by the Recorder of Bradford, His Honour Judge Roger Thomas QC, to 15 months imprisonment for threatening with a bladed article on 3 November contrary to s 139AA of the CJA 1988, to six months consecutive for the theft on 14 November and to 15 months consecutive for possession of a bladed article on 26 November contrary to s.139 of the CJA 1988, making a total of three years. His application for leave to appeal was referred to the court by the Registrar. The application for leave to appeal 65. The applicant was some 41 years of age. He had a very lengthy record of previous offending commencing in 1994. The offences were largely theft, but there were also offences of resisting arrest and breaching non-custodial orders. Much of the offending was due to his significant drug habit. It is important to note that in July 2012 he had been sentenced to six months imprisonment for being in possession of a craft knife. In March 2013 he was given a community order for theft from shops and being in possession of a craft knife. He continued to steal from shops. On 25 October 2013, shortly before the first of the present offences, the magistrates had deferred sentence on offences of theft until January 2014. 66. Although it was accepted that no complaint could be made for the sentence in respect of the offence of threatening with the knife on 13 November 2013, it was contended that the sentence for possession of a knife on 26 November 2013 was too long, as he had not then threatened anyone with it; that the sentence for theft was too long; that the sentences in total were too long. 67. We do not agree. The judge rightly identified the gravity of the offences for which the appellant was sentenced and the escalation from theft to committing such offences as carrying a Stanley knife. He had been given a short sentence of imprisonment by the Crown Court at Bradford for carrying a knife in July 2012; he had been given another chance in March 2013 when the wholly exceptional course was taken by magistrates in giving him a community order and a drug rehabilitation order for possession of a craft knife when stealing. He had not desisted. Nor, as the evidence from the probation officer made clear, had he cooperated with the probation service. A very lengthy sentence was inevitable; the total of three years cannot in any way be criticised. There is no merit in the application. It is therefore refused. HARRY WILLIAM SHAKESPEARE The background 68. In the early hours of 15 June 2013 the victim and a friend went to meet the applicant, then aged 22, to buy some cocaine. The victim approached the applicant in his car and handed him £40. The applicant did not hand over any drugs but showed the victim a large knife. He accused the victim of trying to set him up for a robbery. He got out of his car, but did not take the knife with him. He assaulted the victim, punching him numerous times about his face and head and kneeing him in the left eye. The attack caused the victim bruising and swelling to the left eye, bumps to the left side of his head and forehead and a minor cut to his nose. The applicant then got back into the vehicle. 69. The victim, fearing that the knife would be produced and used, ran back to his friend’s car. The friend drove off. The applicant who was in drink followed at high speed; he had no licence and no insurance. He rammed the car. The friend was able to continue to a police station, although followed by the applicant at high speed most of the way. 70. On 28 June 2013 the applicant pleaded guilty before the Magistrates to threatening with a bladed article in a public place, dangerous driving, theft and assault. He was committed to the Crown Court for sentence. 71. On 8 August 2013 at the Crown Court at Chelmsford before His Honour Judge Turner QC, he was sentenced to a total of 21 months imprisonment. A six month sentence was passed for threatening with a bladed article contrary to s.139AA of the CJA 1988 and consecutive sentences of 12 months, one month and two months respectively were passed for dangerous driving, theft and assault. The Single Judge refused leave to appeal. The applicant renews his application to this court. The application for leave to appeal 72. Although the applicant was 23 at the time of the sentencing hearing, he had appeared before the courts on nine previous occasions largely for drugs offences, but including one offence of possessing an air gun in a public place. In March 2010 he was sentenced to 30 months for robbery and on 13 August 2010 to a consecutive sentence of 12 months for assault occasioning actual bodily harm. He was on licence at the time of these offences. 73. Although it was accepted that it was permissible to pass a consecutive sentence for the offence of dangerous driving, it was argued that it was wrong to pass consecutive sentences for the other offences; they should have been made concurrent. 74. In our view no criticism can properly be made of the total sentence of 21 months. The sentence of 12 months for the dangerous driving was entirely justified. There was no basis for departing from the minimum sentence of six months for the offence of threatening with a bladed article under s.139AA of the CJA 1988. It would have been permissible for the judge to have passed a longer sentence for the offence under s.139AA to reflect the theft and the assault, but the way the judge sentenced the applicant made clear that he received the statutory minimum for the offence under s.139AA and received a further three months for the assault and theft. 75. The application is refused. RAB The background 76. On the afternoon of Wednesday 26 December 2012 two youths bullied a 14 year old schoolboy who, after leaving the Walworth Academy in his school uniform, was in a street near the Old Kent Road. Others joined in the bullying including the applicant, then aged 16, who lashed out at him. A knife was seen tucked into the waistband of one of them. A truancy officer intervened. Before the incident escalated further the 14 year old ran off and the youths dispersed as they saw a police van. The 14 year old telephoned a friend, Huy Pham (18 years old), and told him what had happened. Pham told the 14 year old to wait. Pham then arrived in a motor vehicle driven by Ayodele (who was 20) and Chambers (aged 21) as a passenger. The 14 year old got into the vehicle. They drove to an estate in Walworth. 77. The 14 year old recognised a group of youths standing on a balcony as those who had confronted him. The group included the applicant. Pham, Chambers and Ayodele went up to the balcony and spoke to the group about bullying their 14 year old friend. They wore hoods and their faces were masked. 78. The applicant was unable to get away. There was a confrontation. Pham hit the applicant with a belt buckle. Chambers pushed the applicant. The applicant then produced a knife and stabbed Chambers in the chest, penetrating his heart. Chambers collapsed and died. The applicant then threatened Ayodele with a knife. Pham tried to run away. The applicant caught him but Pham curled up in an attempt to protect himself. The applicant lent over and stabbed Pham in the leg. Ayodele then punched the applicant who turned and swung the knife, cutting Ayodele’s neck in such a way that the wound required five stitches. 79. The applicant was identified from YouTube footage and tried at the Crown Court at Southwark before His Honour Judge Pitts and a jury for three offences : i) The murder of Sean Chambers. ii) Wounding with intent of Ayodele. iii) Wounding with intent of Pham. 80. He was acquitted of the murder of Sean Chambers and wounding Ayodele with intent. He was convicted of wounding Pham with intent. It is clear that by the acquittals in respect of the count of murder and the s.18 offence in respect of Ayodele, the jury accepted the defence of self defence. The judge sentenced the applicant to six years detention under s.91 of the Powers of Criminal Courts (Sentencing) Act; he stated that if the applicant had been over 18, he would have received a sentence of 8-10 years. Leave to appeal was refused by the Single Judge. He renews his application to the full court. The seriousness of the offence and the harm caused 81. We first consider the seriousness of the offence. The judge who had heard the evidence was entitled to find that the applicant was carrying the knife, not because he was expecting particular trouble nor because of threats; he was carrying it for protection as part of his ordinary daily clothing, because it made him feel safer or perhaps because it added to his aura with other young people. That cannot be any justification for carrying a knife or bladed weapon. The judge found there was absolutely no need for him to have taken out his knife when he tried to get away. There was no need for him to have used the knife on Pham. The judge concluded that he was under no threat from Pham as he lay curled on the floor. The evidence was clear that the applicant leant over and deliberately stabbed him. The application for leave to appeal 82. There can be no doubt, as the judge was plainly entitled to find, that the very serious aggravating factor in this case was the fact that the appellant carried a knife on him as an ordinary part of his everyday appearance. He had deliberately used the knife on Pham when he was on the ground. It was very serious criminality. 83. As to the harm caused, the wound was a 1-2 cms long wound to the left thigh. It was closed with three stitches. 84. The applicant had had a difficult upbringing, going to Jamaica and then returning to the UK. On 22 September 2010 when was just 14 he pleaded guilty to possessing a lock knife in a public place. This related to an incident three months earlier when he was 13. He had been with a group of other youths when the police stopped them; he attempted to dispose of it, but was noticed. His sentence was a nine month referral order 85. The judge was entitled to conclude that there was little provocation in relation to the applicant’s stabbing of Pham. It was an offence which fell at the top end of category 2. His previous conviction for carrying a lock knife was a seriously aggravating factor. In our judgment, the sentence of six years, taking account of the applicant’s age, cannot be faulted. The application is refused. LD Background 86. On 31 October 2012 the complainant, a youth then aged 15, was at a party in Hitchin. The applicant, who was born on 22 June 1996 and then aged 16, and some of his friends were also at the same party. The complainant had been associating with a girl whom the applicant had hoped would become his girlfriend. The applicant felt slighted as a result of a previous incident and that he had been shown disrespect. 87. Whilst the applicant and his friends were in the kitchen he enlisted their help, put on some gloves, picked up a knife and lunged towards the complainant, aiming for his abdomen. The complainant managed to move out of the way a little but was stabbed in the inner thigh. The complainant kicked out, managed to free himself and ran out of the kitchen whilst one of his friends grabbed the applicant’s wrist to prevent him using the knife again. The complainant made his way outside and was found bleeding profusely. An ambulance attended and he was taken to hospital where his wound was stitched; the judge commented that it was good fortune that the femoral artery was not severed. The victim personal statement made clear that, although he did not have any residual pain or any other physical effects, he was still affected by the incident at home and at school; he did not go out at all. 88. The applicant was arrested some days later. He was tried at the Crown Court at Cambridge before His Honour Judge Hawkesworth and a jury on a count of wounding with intent. He was convicted of that offence on 3 May 2013. On 7 June 2013, when aged 16, he was sentenced to an extended sentence of ten years imprisonment, comprising a custodial term of six years and an extension period of four years. His application for leave to appeal was refused by the Single Judge. He renews it to this court. The application for leave to appeal 89. It is accepted on behalf of the applicant that when the judge placed the offence within category 2 of the sentencing guideline, he was correct in doing so. Greater culpability existed in view of the use of the weapon, the intention to commit more serious harm than actually resulted from the offence and the circumstances in which the crime was committed. 90. It was also accepted that the judge was entitled to find that the applicant was dangerous. There were ample grounds for doing so given his record of previous offending to which we will refer, the judge’s own assessment and the careful pre-sentence report. 91. The ground of appeal is that the custodial term was too long. It is premised upon the submission that the judge failed to give sufficient weight to the age of the applicant and to take into account his background circumstances. As was set out in the pre-sentence report, his family background was chaotic, he was beyond the control of his mother and used to getting his own way for a long time, associating with other criminals of his age and acting as a leader. 92. Although he was only 16, he had a significant criminal record. On 9 January 2008 when he was not yet 11 he was convicted of using threatening words or behaviour. He was given a referral order a few months later. On 13 August 2008 he was convicted of another similar offence and given a supervision order with a curfew and electronic tagging. Encompassed within those sentences were two further offences of malicious damage and common assault. In February 2008 he was convicted of arson, two offences of malicious damage and two offences of battery. On 13 August 2008 he was convicted of burglary and theft. On 19 November 2008 he was convicted of two offences of battery. On 5 February 2009 he was found in breach of his curfew order. On 26 March 2009 he was found guilty of theft, malicious damage and battery. On 5 January 2010 he was convicted of common assault and given his first custodial sentence of detention and training for four months. On 11 March 2010 he was found guilty of failing to comply with that order. On 1 July 2010 there were numerous further failures to comply with that order. On 1 August 2010 he was found guilty of malicious damage. He was convicted of a similar offence on 9 December 2010. There were subsequent further convictions on 20 January 2011 for malicious damage. On 13 June 2011 he was involved in aggravated vehicle taking and given a further detention and training order for four months. On 15 July 2011 there was theft from a dwelling and on 15 December 2011 theft from a person. On 30 August 2012 there were two offences of battery on two females and further offences of failing to comply with orders imposed upon him. On 27 September 2012 he was made subject to a youth rehabilitation order which was in force at the time of this offence; despite his arrest and remand for this offence he was given a four month detention and training order on 10 January 2013 by magistrates for breach of the youth rehabilitation order imposed on 27 September 2012. 93. The pre-sentence report recorded that, although he had been under statutory supervision for the past five years, he had always re-offended and failed to comply with requirements. He had been placed in custody seven times. He had made no real use of the help offered, except for short periods. In his period of remand after October 2012 he had been highly disruptive and involved in violent incidents though he had in the six weeks prior to sentence been better behaved. He refused to cooperate with the writer of this pre-sentence report. He expressed no remorse. 94. In our judgment the judge’s approach to sentencing this applicant cannot be faulted. He had regard to all the relevant matters and properly discounted the sentence that would have been applicable to an adult. This application is therefore refused.
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{"ConvCourtName": ["Crown Court At Cambridge", "Crown Court At Southwark", "Crown Court At Bradford", "Hastings Magistrates’ Court", "Crown Court At Woolwich", "Crown Court At Snaresbrook"], "ConvictPleaDate": ["2013-05-03", "2013-06-28", "2013-12-12", "2013-05-17"], "ConvictOffence": ["wounding with intent", "murder", "assault", "theft", "dangerous driving", "threatening with a bladed article", "possession of a bladed article", "attempted murder", "having an offensive weapon."], "AcquitOffence": ["wounding Ayodele with intent.", "acquitted of the murder"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Remanded into custody", "Unconditional Bail", "Remanded into custody"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Lewes", "Crown Court At Snaresbrook"], "Sentence": ["'LD'", "six years detention", "two months", "one month", "consecutive sentences of 12 months", "six month sentence", "21 months imprisonment", "15 months consecutive", "six months consecutive", "total of three years", "15 months imprisonment", "30 months detention at a Young Offender Institution.", "custodial term of ten years and three years extended licence", "13 year extended sentence", "with a concurrent sentence of one year", "nine years detention in a young offender institution"], "SentServe": ["Concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["16", "22", "18", "41", "17", "13"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Had mental health problems", "Other", "Other"], "OffIntoxOffence": ["Yes-drinking"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1 of 1", "1 of 1", "1 of 1", "1 of 1"], "VicSex": ["All Male"], "VicAgeOffence": ["15", "Don't know", "1 of 1"], "VicJobOffence": ["Child"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Video identification", "Victim testimony", "Witness testimony", "Police evidence", "Medical", "Digital"], "DefEvidTypeTrial": ["defence of self defence", "Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["no remorse.", "Weapon/armed", "on licence at the time of these offences.", "record of previous offending", "produced a Stanley knife", "history of offending behaviour", "Concealment", "pattern of offending", "number of previous convictions.", "knife in a public street", "leadership role", "joint enterprise basis"], "MitFactSent": ["genuine remorse", "emotional and behavioural difficulties", "difficult home life", "his working on a part-time basis", "his age"], "VicImpactStatement": ["Yes"], "Appellant": ["Offender", "Offender"], "CoDefAccNum": ["Don't know"], "AppealAgainst": ["Other (e.g., application for extension of time to appeal)", "against sentence"], "AppealGround": ["term was too long.", "sentences in total were too long.", "[on co-defendant]", "manifestly excessive."], "SentGuideWhich": ["Powers of Criminal Courts (Sentencing) Act", "Sentencing Guidelines Council’s youth sentencing guidance", "Person Act 1861", "Prevention of Crime Act 1953", "Criminal Justice Act 1988"], "AppealOutcome": ["Dismissed-Failed-Refused", "Dismissed-Failed-Refused", "Dismissed-Failed-Refused", "quash the sentence of 30 months", "Allowed&Sentence Replaced by More Lenient Sentence", "Gomes-Monteiro"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["ten years for a person of the appellant’s youth was too long."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["[learned judge]\n'LD'", "Rab [the sentence]", "no criticism can properly be made of the total", "judge rightly identified the gravity", "no proper ground for criticising the sentence"]}
53
Neutral Citation Number: [2004] EWCA Crim 1981 Case No: 2004/2759/D IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BRISTOL CROWN COURT GRIGSON J T2003337041 TO 45 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/07/2004 Before : LORD JUSTICE LATHAM MR JUSTICE GIBBS and HIS HONOUR JUDGE RICHARD BROWN DL - - - - - - - - - - - - - - - - - - - - - Between : JONES & MILLING, OLDITCH & PRITCHARD, AND RICHARDS Appellant - and - GLOUCESTERSHIRE CROWN PROSECUTION SERVICE Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - James Lewis, QC & James Hines (instructed by The Stokoe Partnership ) for the Appellants Jones & Milling Vaughan Lowe & Alison McDonald (instructed by Bindman & Partners ) for the Appellants Olditch & Pritchard Keir Starmer, QC & Hugo Charlton ( instructed by The Stoke Partnership ) for the Appellant Richards Prof Malcolm Shaw QC , Mark Ellison & Peter Blair (instructed by the Crown Prosecution Service ) for the Respondent Hearing dates : 29/30 Jun 04 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Latham: Introduction 1. These appeals arise out of rulings given by Grigson J at a preparatory hearing under the provisions of Section 29 of the Criminal Procedure and Investigations Act 1996 on the 12 th May 2004. Those rulings relate to a common issue raised in the three prosecutions with which we are concerned, namely the extent to which the defendants in the proceedings can rely on their beliefs as to the lawfulness of the United Kingdom’s actions in preparing for, declaring, and waging war in Iraq in 2003. The background facts. 2. i) R –v- Jones and Milling These defendants are jointly indicted with conspiring together, contrary to Section 1(1) of the Criminal Law Act 1997 on the 13 th March 2003, to cause criminal damage. At about 2145hrs on that day, the defendants were discovered together by a senior USAF airman in the secure fuel installation complex inside the perimeter fence of RAF Fairford, which was at the time a 24 hour operational military airbase and NATO stand-by base, as well as being home to Allied US visiting forces. They were in possession of tools which had enabled them to enter the airbase, and which they intended to use to cause damage to equipment on the airbase. By the time that they were apprehended, they had damaged three refuelling trucks, two munitions trailers and their tractor units. When arrested they both stated that it was their intention to prevent the United States and the United Kingdom from using the base for what they described as a launching pad for war crimes. ii) R –v- Olditch and Pritchard These defendants are charged with two counts. The first count is conspiracy contrary to Section 1(1) of the Criminal Law Act 1977 between the 16 th and 19 th March 2003 to cause criminal damage. The second is having articles in their custody or control on the 18 th March 2003 intending to destroy or damage property in a way which they knew was likely to endanger the lives of others contrary to Section 3(b) of the Criminal Damage Act 1971 . At about 5.25am on the 18 th March 2003, the defendants were discovered lying in the grass inside the perimeter of RAF Fairford. They both had rucksacks in their possession containing items which were clearly intended to cause damage, although no damage had in fact been occasioned before they were arrested. Each of them asserted in prepared typed statements that they were intending to take action against the bombers on the airbase in such way as to immobilise them if possible on the grounds that the United Kingdom and the United States of America were acting unlawfully. iii) R –v Richards. This defendant is charged with three counts. The first count is attempted arson on the 18 th March 2003 being reckless as to whether the life of another would thereby be endangered. The second is having articles in his custody or under his control on the same date intending that they should be used to destroy or damage property in a way which he knew was likely to endanger the lives of others contrary to Section 3(b) of the Criminal Damage Act 1971 . And the third is Criminal Damage contrary to Section 1(1) of the Criminal Damage Act 1971 . The defendant was discovered at 0210hrs on the 18 th March 2003 just outside the perimeter fence of RAF Fairford close to where a section of the perimeter fence had recently been cut. He was in possession of a rucksack in which petrol and washing-up liquid was found mixed together, which he said were intended to set fire to the wheels of a bomber. He stated that he had intended to take this action in order to stop a crime in that the bombers were taking part in an illegal war. The Preparatory Hearing 3. The defence statements for the purposes of the trials were based on the assertion that the attack on Iraq was an unlawful act which they were attempting to prevent. As a result, each submitted that they were entitled to rely upon three defences: a. duress of circumstance/necessity; b. the defence of lawful excuse under Section 5(2)(b) of the Criminal Damage Act 1971 , which provides as follows: “A person charged with an offence to which this section applies shall …. be treated as having a lawful excuse – …. (b) if he destroyed or damaged or threatened to destroy or damage the property in question, or in the case of a charge of an offence under Section 3 above, intended to use or cause or permit the use of something to destroy or damage it, in order to protect property belonging to himself or another or a right to an interest in property which was or which he believed to be vested in himself or another at the time of the act or acts alleged to constitute the offence he believed – (i) that the property, right or interest was in immediate need of protection, and (ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances: (3) For the purpose of this section it is immaterial whether a belief is justified or not if it is honestly held.” c. the prevention of crime under section 3 of the Criminal Law Act 1967 , which provides: “A person may use such force as is reasonable in the circumstances in the prevention of crime.” 4. The prosecution sought rulings from the judge in relation to the following questions: “(i) Can a defendant facing criminal proceedings in an English court challenge the legality of the use of force by the UK Government and/or the government of the USA and other states, against Iraq in March 2003 in reliance upon UN Security Council Resolutions? (justiciability)” a) If the answer to question 1 is “No”, is the defence of necessity available to the defendant as a matter of law, on the most favourable view to him on the material available and likely to be available? b) If the answer to question (i) is “No”, is the defence of use of reasonable force in the prevention of crime under Section 3 of the Criminal Law Act 1967 available to either of the defendants on the most favourable view to them on the material available or likely to be available? i) Is the defence of lawful excuse under Section 5 of the Criminal Damage Act 1971 available to the defendant on the most favourable view to him of the material available or likely to become available? ii) Does the defence provided by Section 3 of the Criminal Law Act 1967 extend to the reasonable use of force by them against the person?” 5. The judge declined to give a ruling on the basis of any assumptions as to the facts. No one suggests that he was wrong to take that course. As far as the question relating to Section 3 of the Criminal Law Act was concerned, that confined itself in argument to an issue of what, if any, crime or crimes could be relied upon by the defence. The judge’s decision 6. The judge concluded that the issue of the legality of the war was not justiciable in domestic courts on the basis that the United Kingdom government was exercising its prerogative powers in relation to foreign policy and the deployment of the armed forces, which were issues into which the courts would not enquire. As far as the defence under Section 5 of the Criminal Damage Act 1971 was concerned, he concluded that the only matters which were relevant were those expressly set out in the sub-section, so that a defendant had a lawful excuse if he acted in order to protect property, and at the time he so acted he believed that the property was in immediate need of protection and that the means adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances as the defendants believed them to be. He ruled that there was no requirement that the damage to the property which the defendants sought to prevent was the result of an illegal act. As far as Section 3 was concerned, he ruled that this must mean a crime in domestic law. He rejected the defendants’ submissions that there was an international crime of aggression which was triable in domestic courts. But he ruled that under the International Criminal Court Act 2001 , certain war crimes committed by individuals were triable in domestic courts, so that the defendants were entitled to argue that they had not acted unlawfully in so far as they were able to establish that they believed that any force they used was reasonable force to prevent such offences from being committed. As to necessity or duress of circumstance, he said as follows: “49. As it seems to me, for the defence of necessity to be available, a defendant must show: (i) that he committed what would otherwise be an offence of criminal damage in order to prevent an act of greater evil. There is no requirement that the act of greater evil should be unlawful, nor that it take place within the jurisdiction. (ii) that the greater evil was directed to those whom the defendant reasonably believed he had responsibility or for whom the situation made him responsible. It would be a matter for the jury to decide whether a defendant could reasonably believe he was responsible for the citizens of Iraq against whom his own government had decided or might decide (in the exercise of prerogative power) to use force. (iii) that the actions were reasonable and proportionate to the evil to be avoided. (iv) that on the facts the defendants believed them to be he was driven to act as and when he did to avert harm that was about to happen.” 7. He concluded that the actual legality or illegality of the war against Iraq was accordingly not a relevant issue in the trial. He gave leave to each of the defendants to appeal against his ruling on justicability, and gave leave to both the prosecution and the defence to appeal his rulings on the specific defences. The Appeals 8. The defendants have appealed against the judge’s ruling on justiciability and his conclusion that the alleged crime of aggression is not a crime for the purposes of Section 3 of the Criminal Law Act 1967 . The prosecution has appealed against his ruling in relation to the defences of duress of circumstance and lawful excuse under Section 5 of the Criminal Damage Act 1971 in so far as that permitted the jury to take into account in determining the reasonableness of the defendants actions the inevitable consequences of a declaration of war. The prosecution do not appeal against the judge’s ruling that the jury is entitled to consider a defence based upon the prevention of alleged offences under the International Criminal Court Act 2001 . The Issues 9. We have heard extensive argument on domestic and international law, a substantial proportion of which has been directed to the issue of justiciability. That is a difficult and controversial topic which has already been the subject of a decision of this court in relation to what was then the threatened war in Iraq in The Campaign for Nuclear Disarmament –v- The Prime Minister of the United Kingdom & Others [2002] EWHC 2759 (QB) . The Campaign for Nuclear Disarmament sought to obtain in judicial review proceedings a declaration as to the true meaning of Resolution 1441 adopted by the United Nations Security Council on the 8 th November 2002 and a declaration as to whether or not it authorised States to take military action in the event of non-compliance by Iraq with its terms. A Divisional Court of three, presided over by Simon Brown LJ, dismissed the application. The Court held that the questions raised by the allegation were non-justiciable. Simon Brown LJ gave as his reasons, firstly that the court had no jurisdiction to declare the true interpretation of an international instrument which had not been incorporated into English domestic law and which it was unnecessary to interpret for the purposes of determining an individual’s rights or duties under domestic law; secondly that the court would in any event decline to embark upon the determination of an issue if to do so would be damaging to the public interest in the field of international security or defence. 10. Maurice Kay J gave as his principal reason for rejecting the claim the fact that the subject matter of the application was one which was within forbidden area for the courts, citing a passage from the speech of Lord Fraser in CCSU –v- Minister for the Civil Service [1985] AC 374 at page 398: “Many of the most important prerogative powers concerned with the control of the armed forces and with foreign policy and with matters which are unsuitable for discussion or review in the Law Court.” 11. Richards J considered that the claim was an attempt to limit the Government’s freedom of movement in relation to the actual use of military force, so that took it squarely into the fields of foreign affairs and defence. He said at paragraph 59: “In my view it is unthinkable that the national courts would entertain a challenge to a government decision to declare war or to authorise the use of armed force against a third country. That is a classic example of a non-justiciable decision.” 12. This echoes a comment by Simon Brown LJ at paragraph 15: “CND must inevitably recognise that any future decision to take military action would plainly be beyond the courts’ purview.” 13. These passages neatly identify the respective arguments put before us. The defendants submit that unlike the CND, they are not asking for a declaratory judgment, but are seeking to obtain the court’s ruling on matters which affect their rights or duties under domestic law. It is accordingly necessary for the court to enquire into the lawfulness of the government’s actions in declaring war; or to be more exact, it will be necessary for the judge to direct the jury as to the ingredients of the international crime of aggression, which is the basis of the defendant’s contention that the Government’s action was unlawful, so as to enable the jury to determine whether or not the defendants’ beliefs as to the facts justify the conclusion that that crime was about to be committed. It is further submitted that to assert that that enquiry was non-justiciable on the grounds that it related to the exercise of the executive’s undoubted prerogative powers in relation to foreign affairs and the disposition of armed forces would be, in effect, to grant the executive immunity from the criminal law. The prosecution on the other hand submit that this would involve the court through the respective roles of the judge and the jury in the trial, in enquiring into subject matter which is quintessentially incapable of being explored by the courts for the reasons given by the judges in the CND case. 14. There is, it seems to us, considerable force in the argument that the CND case does not, in itself, provide the answer to the issue of justiciability in the present case for both of the fundamental reasons advanced by the defendants. But that issue simply does not arise if the judge’s other rulings are correct. If he is right that under Section 3 of the Criminal Law Act 1967 , a crime must be a crime in domestic law and the alleged international crime of aggression was not part of domestic law, that answers the question in relation to the proposed defence under Section 3 . If he is right that the lawfulness or otherwise of the executive’s actions were irrelevant to the jury’s considerations under Section 5 of the Criminal Damage Act, and in relation to the defence of duress of circumstance, again the issue simply does not arise. It seems to us, therefore, that it is essential to determine the correctness of those parts of the ruling by the judge in order to determine whether the issue of justiciability is one which needs to be addressed, and if so its context. Section 3 of the Criminal Law Act 1967 15. The first question is whether or not the word “crime” in Section 3 means a crime in domestic law, or has some wider meaning. Mr Lewis, QC on behalf of Jones and Milling submits that we should give a broad meaning to the word. He has referred us to Smith and Hogan’s Criminal Law, 10 th Edition, in which Sir John Smith cites at page 19, from the judgment of Lord Atkin in Proprietary Articles Trade Association –v- A-G for Canada [1931] AC 310 at 324: “The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: is the act prohibited with penal consequences?” 16. Further on at page 22, Sir John Smith says that when asking the question how, in effect, is a judge to determine whether or not any actions are criminal; the answer must be: “Surely, only by ascertaining whether the legislature (or the courts in the case of a common law crime) have prescribed that the proceedings shall be criminal; and this must depend, primarily, upon whether it is intended to be punitive.” 17. It seems to us that the citation from Smith and Hogan begs the question. Whilst accepting that an international crime may exist independently of any procedure proscribed by general consent or treaty for their trial and punishment, it can only be a crime if the consequences to the perpetrator amount to punishment, which can only be the case if what is described as the international crime is, in the absence of any international tribunal given jurisdiction in relation to that crime, triable and punishable in domestic law. 18. There is no definition of “crime” in the Criminal Law Act. But is seems clear to us that the section, which gives protection in domestic law to those acting to prevent crime can only have intended that protection to apply where a criminal offence in domestic law is involved. If it were otherwise, it is difficult to see how any satisfactory definition of the word “crime” could be arrived at. It could not be intended to refer to something which would amount to a crime in another jurisdiction, for that would give extra territorial effect in England to the criminal laws in another jurisdiction. In the case of an alleged international crime, it could only amount to a crime on Sir John Smith’s formulation if it were punishable somewhere. If it was punishable in another jurisdiction but not in the United Kingdom, this would give rise to the same objection. 19. Whether the alleged international crime of aggression is a crime in domestic law depends upon the effect of public international law rules in English Law. Sir William Blackstone in his Commentaries on the Laws of England (1769) (Book 4 Public) Chapter V at page 66 deals with what he describes as Offences against the Law of Nations: “The law of nations is a system of Rules, deducible by natural reason, and established by universal consent among the civilised inhabitants of the world, in order to decide all disputes to regulate all ceremonies and civilities and to ensure the observance of justice and good faith, in that intercourse which must frequently occur between two or more independent states, and the individuals belonging to each. This general law is founded upon this principle, that different nations ought in time of peace to do one another all the good they can; and in time of war do as little harm as possible, without prejudice to their own real interests. And, as none of these states will allow a superiority in the other, therefore neither can dictate or prescribe the rules of this law to the rest. But such rules must necessarily result from those principles of natural justice, in which all the learned of every nation agree: or they depend upon mutual contact or treaties between the respect of community, in the construction of which there is also no judge to resort to, but the law of nature and reason, being the only one in which all the contracting parties are equally conversant, and to which they are equally subject. In arbitrary states this law, wherever it contradicts, or is not provided for by the municipal law of the country, is enforced by the royal power: but since in England no royal power can introduce a new law, or suspend the execution of the old, therefore the law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be part of the law of the land.” 20. In West Rand Central Gold Mining Company –v- Rex [1905] 2 KB 391 at page 406, Lord Alverstone CJ said: “The second proposition urged by Lord Robert Cecil, that international law forms part of the law of England, requires a word of explanation and comment. It is quite true that whatever has received the common consent of civilised nations must have received the assent of our country, and that to which we have assented along with other nations in general may properly be called international law, and as such will be acknowledged and applied by our municipal tribunals when legitimate occasion arises for those tribunals to try questions to which doctrines of international law may be relevant. But any doctrines there invoked must be ones really accepted as binding between nations, and the international law sought to be applied, must, like anything else, be proved by satisfactory evidence, which must show either that the particular proposition put forward has been recognised and acted upon by our own country, or that it is of such a nature and has been so widely and generally accepted, that it can hardly be supposed that any civilised state would repudiate it.” 21. In Trendtex Trading –v- Bank of Nigeria [1977] 1 QB 529 it was accepted that the principles of international law relating to sovereign immunity were part of English law. The debate was over the extent to which that was a static concept. 22. In that context, Lord Denning said at page 554 G: “Seeing that the rules of international law have changed – and do change – and that the courts have given effect to the changes without any Act of Parliament, it follows to my mind inexorably that the rules of international law, as existing from time to time, do form part of our English law.” 23. And finally, if any further citation on this were necessary, Nourse LJ said in Maclaine Watson & Co –v- Department of Trade [1988] 3 WLR 1033 at page 1115 H: “For up to two and a half centuries it has been generally accepted amongst English judges and jurists that international law forms part of the law of this country. In all events if it can be shown there is an established rule which, first, is derived from one or more of the recognised sources of international law and secondly, has already been carried into English law by statute, judicial decision or ancient custom.” 24. There is no doubt, therefore, that a rule of international law is capable of being incorporated into English law if it is an established rule derived from one or more of the recognised sources, that is a clear consensus, evidenced by the writings of scholars or otherwise, or by treaty. The second requirement referred to be Nourse LJ, namely that it has been carried into English law by statute, judicial decision or ancient custom is, it seems to us, more doubtful. Whilst clearly its recognition by statute will ipso facto, give it effect, in so far as it is suggested that there must be either a previous judicial decision or ancient custom, in other words, in effect, some clear acceptance by the court of the existence of the rule as part of English law, that would emasculate the principle. It would in effect prevent any clearly established rule of international law becoming part of English law other than by statute. In our view, the question as to whether or not a rule of international law forms part of English law is governed by the principle of certainty; and the question as to whether or not it constitutes a crime depends upon an analysis of whether or not a breach of the rule can properly result in penal consequences. The mere fact that an act can clearly be established to be proscribed by international law, and is described as “a crime” does not necessarily of itself determine its character in domestic law unless its characteristics are such that it can be translated into domestic law in a way which would entitle domestic courts to impose punishment. 25. The defendants submit that there are essentially five recognised international law crimes which fall into that category. These are war crimes, crimes against humanity, crimes against peace, which include the crime of aggression, piracy and torture. It is submitted that these are all crimes which are recognised in domestic law and are, accordingly, crimes for the purposes of Section 3 of the Criminal Law Act. 26. The defendants have only, however, been able to identify one case as support for the proposition that any of those “crimes” is, merely by virtue of international law, a crime in English law. That is the case of In re Piracy jure gentium [1934] AC 586 . That case arose out of charges of piracy brought against Chinese Nationals who had pursued and attacked a cargo junk. They were indicted in Hong Kong for the crime of piracy and found guilty subject to the following question of law: “Whether an accused person may be convicted of piracy in circumstances where no robbery has occurred.” 27. The full court of Hong Kong came to the conclusion that robbery was a necessary ingredient of the offence of piracy and the accused were acquitted. The question of the correctness of that order was submitted to the Privy Council, which concluded that a frustrated attempt to commit piratical robbery was equally piracy jure gentium. 28. In considering that question, the Board approached the question on the basis that the offence that was charged was not the domestic offence of piracy as defined in domestic law that is, the statutory laws applying to Hong Kong, but was the international law of piracy. Viscount Sankey stated that the question therefore had to be determined by reference to the principles of international law. He said at page 589: “With regard to crimes as defined by international law, that law has no means of trying or punishing them. The recognition of them as constituting crimes, and the trial and punishment of criminals, are left to the municipal law of each country.” 29. And later at page 594, having considered domestic authorities in relation to the definition of piracy, he said: “These, however, are immaterial for the purpose of this case, because it must always be remembered that the matter under present discussion is not what is piracy under any municipal Act of any particular country but what is piracy jure gentium.” 30. We accept that this case is authority for the proposition that a rule of international law is capable of being incorporated into domestic law so as to found an indictment which, if proved, can result in punishment. To that extent we accept the submission that international law is capable of being incorporated into English law so as to create a crime punishable in domestic law. That is clearly so in relation to piracy, which has a history of proscription in international law which was established as early as the 16 th Century. For our purposes it is important to note that the decision of the Board was based upon the analysis and development of the concept of piracy over the centuries, so that early statements of the law which suggested that an actual robbery should be proved were no longer valid. At page 600 Viscount Sankey said: “A careful examination of the subject shows a gradual widening of the earlier definition of piracy to bring it from time to time more in consonance with situations either not thought of or not in existence when the older juris consultances were addressing their opinions.” 31. This is an example of the principle which Lord Denning affirmed in Trendtex, namely that English law reflects the state of international law from time to time, and does not apply the principle of binding precedent to a determination of its content. 32. On the basis of that authority, the defendants submit that the English courts can and should recognise the international crime of aggression as a crime in domestic law. They submit that it is clearly established as a crime, above all by the proceedings of the Nuremberg Tribunal which was established by the Agreement and Charter which was the exercise of the sovereign and legislative power of the countries to which the German Reich unconditionally surrendered. In the decision as to jurisdiction given by the Nuremburg Tribunal, reported in 41 AJIL (1947) 172, the Tribunal, having set out the provisions of the Kellogg-Briand Pact which was binding on the 63 signatories, including Germany, Italy and Japan, and renounced war as an instrument of national policy, said at page 218: “In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy, necessarily involves the proposition that such a war is illegal in International Law; and that those who plan and wage such a war, with its inevitable and terrible consequences are committing a crime in so doing.” 33. There was debate before us as to the extent to which the Tribunals which were set up thereafter to try individuals were exercising jurisdiction as courts exercising jurisdiction under the Agreement and Charter, or were domestic courts applying international law principles. We were referred, for example, to the decision of the British Military Court in Holland in the case of In Re Sandrock and Others 13 International Law Reports 297. It was submitted that this was a court constituted under an Order in Council and was accordingly a domestic court. 34. We do not consider that we need to resolve that issue for the purposes of the present case. For there is no doubt that international law has moved on from the position immediately following the Second World War. The legal landscape is now very different. Pursuant to the Rome Statute of the International Criminal Court, that court has jurisdiction under Article 5 over the crime of genocide, crimes against humanity, war crimes and the crime of aggression. Genocide, crimes against humanity and war crimes are defined. The crime of aggression is not. An introductory note to a press release from the court dated the 16 th July 2003 states: “The court cannot exercise jurisdiction over alleged crimes of aggression until the crime is defined and the conditions for the exercise of jurisdiction are set out.” 35. This reflects the position which had been reached in September 2003 when the report of the Second Session of the Assembly of States Parties to the International Criminal Court set out in Annexe II a discussion paper on the definition and elements of the crime of aggression prepared by a working group. The definition of the crime of aggression was put forward for debate in the following terms: “1. For the purpose of the present Statute, a person commits a “crime of aggression” when, being in a position effectively to exercise control over or to direct the political or military action of a state, that person intentionally and knowingly orders or participates actively in the planning, preparation and initiation or execution of an act of aggression which, by its character gravity and scale, constitutes a flagrant violation of the Charter of the United Nations. Option 1: Add “such as” particular war of aggression or an act which has the object or result of establishing a military occupation of, or annexing the territory of another state or part thereof.” Option 2: Add “amounts to a war of aggression or constitutes an act which has the object or the result of establishing a military occupation of or, annexing, the territory of another state or part thereof. Option 3: Neither of the above. 2. For the purposes of paragraph 1, “acts of aggression” means an act referred to in United Nations General Assembly Resolution 3314 (XXIX) of 14 December 1974 which is determined to have been committed by the state concerned, Option 1 : Add “in accordance with 4 & 5” Option 2 : Add “subject to a prior determination by the Security Council of the United Nations. …..” 36. The present position in domestic law, so far as statutory provisions are concerned, is that the International Criminal Courts Act 2001 has brought into effect in the United Kingdom the offences defined under the Rome Statute. This Act, accordingly, gives a statutory basis for the incorporation of those three crimes in domestic law in the same way as the Geneva Conventions Act 1957 did in relation to breaches of the Geneva Convention, and the Criminal Justice Act 1988 sections 134, and 135 did in relation to the international crime of torture. 37. We were referred by both the defendants and the prosecution to the decision of the House of Lords in R –v- Bow Street Metropolitan Stipendiary Magistrate and Others ex parte Pinochet Ugarte [2000] 1AC 61 , sometimes described as Pinochet No 3 , in the context of the crime of torture. The defendants submitted that properly understood, the decision in this case depended on the extra territorial provisions of the Criminal Law Act 1988 which was the basis for the recognition that charges relating to matters after the passing of that Act laid in Spain were capable of constituting offences under domestic law. The House recognised at least implicitly that torture was an international crime capable of constituting a crime under domestic law, albeit subject to common law jurisdiction or limits. In fact only Lord Millett expressly asserted that torture was always an international crime having effect in domestic law. 38. We accept entirely that the majority of their Lordships in Pinochet No 3 decided the issue with which we are concerned on the basis that it was only when the Criminal Law Act came into force that domestic law had extra-territorial effect. And we also accept that Lord Hope, with whose speech Lord Hutton agreed, appeared in a passage at page 237 D to accept that the international crime of torture was a crime in domestic law albeit without extra-territorial effect prior to the Criminal Law Act. The decision did not, however, answer the question as to the status of the international crime of aggression, or its effect in domestic law. 39. The only modern domestic law decision to which we have been referred which deals with the effect of a rule of international customary law in this context is the case of Hutchinson –v- Newbury Magistrates Court (2000) ILR 499 . In that case the appellant was convicted of criminal damage to a fence at the Atomic Weapons Establishment at Aldermaston. Her conviction was upheld on appeal by the Crown Court; and she appealed by way of case stated to the Divisional Court. She maintained that she had acted in order to halt the production of Trident nuclear warheads at Aldermaston and contended that the threat or use of nuclear weapons was contrary to customary international law as reflected in the Advisory Opinion of the International Court of Justice in the Case Concerning the Legality of the Threat or Use of Nuclear Weapons (1996) 110 ILR 161 . 40. In giving the judgment of the Divisional Court, Buxton LJ, having set out the relevant parts of the Advisory Opinion, concluded that there was no clearly established rule, but nonetheless went on to discuss what would have been the effect in domestic law had such a rule been capable of identification. At page 506 he said: “ The English Rule . It is agreed that a rule of international customary law, if it is sufficiently agreed in international law to be such, is translated automatically into English domestic law. The question however is how it should be characterised once it arrives here? Mr Mercer contended, after some hesitation, that the rule that he had formulated was in English law a rule of substantive criminal law, making conduct by the Crown or British Government in contravention of it a criminal act. That is a very striking submission in view of the context of the rule in its terms. I say nothing in passing as to the susceptibility of the Crown to criminal process. It is also in my view impossible to reconcile that contention with the debate Pinochet No 3 which concluded, illuminatingly subject to the specific dissent on this point by Lord Millet, that although state torture had long been an international crime in the highest sense (to adopt the formulation of Lord Browne-Wilkinson [2000] 1AC page 198 A-F) and therefore a crime universally in whatever territory it occurred, it was only with the passing of section 134 of the Criminal Justice Act 1998 that the English Criminal Courts acquired jurisdiction over “international”, that is to say extra-territorial, torture. I hold, therefore, that Mr Mercer is wrong on this point, and that the unlawfulness of the United Kingdom Governments conduct that is established in English Law by the transformation of the rule of International Law is unlawfulness of a more elusive nature than is to be found in the substantive criminal law. What exactly that nature is was never satisfactorily explained to us, despite the courts efforts to seek elucidation.” 41. Domestic courts have, however considered the effect of a gross breach of international law in English civil law in the case of Kuwait Airways Corporation –v- Iraqi Airways Company (Nos 4 and 5) [2002] 2AC 883 . The English courts were there concerned with the effect in English law of an Iraq decree after the annexation of Kuwait by Iraq as to the ownership of certain assets of the Kuwait Airways Corporation in an action for conversion. The question arose in the context of the public policy rule as to the recognition of the provisions of foreign law. It was accepted that the courts of this country could take into account infringements of human rights as an exception to the general rule that the courts of this country would not enquire into the legality of decrees of a foreign state. But it was submitted that that did not extend to breaches of international law. The House of Lords held that the English court could do so where there had been a breach of an established principle of international law committed by one state against another when the breach was plain, and indeed acknowledged: see the speech of Lord Nicholls at page 1081A. In determining that question, the House had regard to the fact that the Iraqi invasion of Kuwait was a clear breach of the United Nations Charter and that the actions of the Iraqi government in passing the relevant decree were clear breaches of a number of resolutions of the United Nations Security Council. The House therefore held that it was entitled to conclude that to give effect to the decree would be contrary to public policy. 42. Although not spelt out expressly as being justified on the grounds that Iraq had been guilty of the international crime of aggression, that was the effect of the decision. It seems to us that this case is therefore authority for the proposition that the rule of international law underlying the concept of the international crime of aggression is capable of having effect in domestic law. But the case does not, it seems to us, go further than acknowledge in accordance with the principles that we have already discussed, that the rules of international law have effect in domestic law. The question that we have to determine is whether or not the relevant rules have effect so as to create a crime of aggression in English law. That requires us to consider the extent to which the rule or rules in question can be said to have been recognised in such a way as to give rise to criminal liability in circumstances such as the present. In determining that question, it seems to us that we have to have regard to the way in which the international community has approached the issue in the context of an individual’s responsibility for breaches of such rules and his or her amenability to criminal sanctions. 43. In that context it is necessary to return to the discussion paper to which we have referred in paragraph 31 above. As we have already noted, this is the paper which identified some of the problems which prevent the International Criminal Court from having jurisdiction over the crime of aggression. One of the preconditions to the exercise of the Court’s jurisdiction in the definition is, by paragraph 4, that the prosecutor has to ascertain whether the Security Council has made a determination of an act of aggression committed by the state concerned. By paragraph 5, one option for discussion enquires whether or not the court can proceed with the case in the absence of any determination by the Security Council or whether it has to dismiss the case. It is difficult to see in these circumstances how it can be said that there is, accordingly, a firmly established rule of international law which establishes a crime of aggression which can be translated into domestic law as a crime in domestic law, where there is no consensus as to an essential element of the crime. It follows that, whatever other effects the international rules as to the crime of aggression may have, they cannot constitute a crime for the purposes of Section 3 of the Criminal Law Act, and the judge was right to rule accordingly. Section 5(2) (b) of the Criminal Damage Act 1971 44. The relevant provisions of this sub-section have been set out by us in paragraph 2 above. The effect of the provisions is that a person is treated as having a lawful excuse if: i) he acted to prevent damage to property, whether his own or another’s. This test requires an answer to the question: “Could the act done be said to be done in order to protect property?” see R –v- Hunt 66 Cr App R 105 , ii) at the time he acted, he believed that property was in immediate need of protection, and iii) he believed that the means adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances. iv) In determining the answers to ii) and iii), it is immaterial whether the belief was justified, provided that it was honestly held. 45. It is self evident that this provision, on its face, gives considerable latitude to those who are minded to take direct action in the honestly held belief that in so doing they are protecting the property of others. As we have indicated in i) above, the only objective element which the jury would have to consider is whether it could be said that on the facts, as believed by the defendant, the criminal damage alleged could amount to something done to protect another’s property: see the judgment of Lord Lane, approving this courts judgment in R –v- Hunt in R –v- Hill and Hall (1989) 89 Cr App R 74 at page 79. 46. Professor Shaw QC on behalf of the prosecution has sought to persuade us that there is a further objective requirement, namely that, on the facts as believed by the defendant, those facts would establish that the threat was of unlawful damage to his or another’s property. He submits that the defendant would not be entitled to take action to prevent damage which would be the inevitable consequences of warfare, provided always that that damage did not amount to a war crime. If it were otherwise, he submits the person could invoke the defence under Section 5 if he damaged or attempted to damage any equipment being used by, for example, a local authority in order to exercise its lawful powers to abate a public nuisance. 47. Whilst there are clearly strong policy arguments for imposing such a further restriction on the availability of the defence, the fact is that the statute does not so provide. Subject to the one objective element to which we have referred, the court and the jury are concerned simply with the question of a defendant’s honestly held beliefs. It follows that no issue can arise in relation to this defence which involves consideration of the legality of the war in Iraq. Necessity. 48. This defence has consistently given rise to difficulties in its application. As Professor Glanville W Williams said in Criminal Law , The General Part at page 570: “The peculiarity of necessity as a doctrine of law is the difficulty or impossibility of formulating it with any approach to precision.” 49. Despite that difficulty, it is a long established defence; and the court has to grapple with the problem of how its essential elements are to be applied in any given case. One of the difficulties for us is that Grigson J declined to give his rulings on the basis of any assumed facts; and neither the prosecution nor the defendants have sought to appeal against his decision on the basis that that approach was wrong. It follows that the argument must, of necessity, be at the level of generalities, which will need to be applied by the judge at the trial to the facts as they emerge. 50. The general principles were stated by Simon Brown J giving the judgment in the court of Appeal in R –v- Martin (Colin) [1989] 1 All ER 652 at 653 to 654: “First, English law does, in extreme circumstances, recognises a defence of necessity. Most commonly in this defence arises as duress, that is pressure on the accused’s will from the wrongful threats or violence of another. Equally, however it can arise from other objective dangers threatening the accused or another. Arising thus it is conveniently called “duress of circumstances”. Second, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury. Third, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions: first, was the accused, or may he have been, compelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result; second, if so, would a sober person of reasonable firmness showing the characteristics of the accused, have responded to that situation by acting as the accused acted? If the answer to both those questions was Yes, then the jury would acquit; the defence of necessity would have been established.” 51. This definition was adopted by Rose LJ in R –v- Abdul-Hussain [1999] Crim LR 570. In that case, the court identified eleven propositions. These were that: i) Unless Parliament provides otherwise, the defence of duress, whether by threats or from circumstances is generally available in relation to all substantive crimes except murder, attempted murder and some forms of treason. ii) The courts have developed the defence on a case-by-case basis and its scope remains imprecise. iii) Imminent peril of death or serious injury to the defendant, or those to whom he has responsibility, is an essential element of both types of duress. iv) The peril must operate on the mind of the defendant at the time when he commits the otherwise criminal act, so as to overbear his will, and this essentially is a question for the jury. v) But the execution of the threat need not be immediately in prospect. vi) The period of time which elapses between the inception of the peril and the defendant’s act, and between that act and execution of the threat, are relevant but not determinative factors. vii) All the circumstances of the peril including the number, identity and status of those creating it, and the opportunities (if any) which exist to avoid it are relevant, initially for the judge and, in appropriate cases, for the jury, when assessing whether the defendant’s mind was affected as in iv) above. viii) As to vi) and vii), if Anne Frank had stolen a car to escape from Amsterdam and had been charged with theft, the tenets of English law would not have denied her a defence of duress of circumstances, on the ground that she should have waited for the Gestapo’s knock on the door. ix) There is no reason of principle or authority for distinguishing the two forms of duress in relation to the elements of the defence which have been identified. x) The judgment in R –v- Martin (Colin) (supra) affords the clearest and most authoritative guide to the relevant principles and appropriate direction in relation to both forms of duress. xi) Clauses 25 and 26 of the Law Commission’s Draft Criminal Law Bill do not represent the present law (see Criminal Law: Legislating the Criminal Code: Offences against the Person and General Principles (1993) (Law Com No 218) (CM 2370) Appendix A). Accordingly reference to those provisions is potentially misleading. 52. In R –v- Shayler [2001] 1WLR 2206 , Lord Woolf CJ giving the judgment of the court, approved the statements of the law set out in both the judgments to which we have referred. In paragraph 49 the court held that from those two decisions: “We extract the following ingredients as being required for the defence of necessity to be relied on: i) the act must be done only to prevent an act of greater evil; ii) the evil must be directed towards the defendant or a person or persons for whom he has responsibility or we would add, persons for whom the situation makes him responsible; iii) the act must be reasonable and proportionate to the evil avoided. We make the addition to ii) to cover by way of example, the situation where the threat is made to set off a bomb unless the defendants performs the unlawful act. The defendant may have not have (sic) had any previous connection with those who would be injured by the bomb, but the threat itself creates the defendant’s responsibility for those who would be at risk if he does not give way to the threat.” 53. After discussing the question of whether or not there is any distinction between the concept of duress and necessity, which the court considered at paragraph 55 had “correctly, been by and large ignored or blurred by the courts”, the court said at paragraph 53: “So in our judgment the way to reconcile the authorities to which we have referred is to regard the defence as being available when a defendant commits an otherwise criminal act to avoid an imminent peril of danger to life or serious injury to himself or towards somebody whom he reasonably regards himself as being responsible. That person may not be ascertained and may not be identifiable. However, if it is not possible to name the individuals before hand, it has at least to be possible to describe the individuals by reference to the action which is threatened would be taken which would make them victims absent avoiding action being taken by the defendant. The defendant has responsibility for them because he is placed in a position where he is required to make choice whether to take or not to take the action which it is said will avoid them being injured. Thus if that is to explode a bomb in a building and the defendant does not accede to what is demanded the defendant owes a responsibility to those who would be in the building if the bomb exploded.” 54. The question that we have to determine is whether or not on the basis of these decisions, the court will have to grapple with the question of the legality of the government’s decision to declare war on Iraq. The defendants say that it is necessary because that is the “evil” which they felt impelled to do their best to obviate by their actions. Alternatively, using the terminology of Simon Brown J in R –v- Martin (Colin) , it is only available to them if from an objective standpoint, they could be said to be acting reasonably or proportionately; and a determination of the legality of the war would be necessary in order to answer that question. 55. It seems to us, however, that this approach fails to put the defence in its proper context. Necessity is potentially a domestic defence to a domestic offence. We have already held that no domestic crime is engaged. The executive’s action in declaring and waging war is, in itself, a lawful exercise of its powers under the prerogative. The court will accordingly have to consider the extent to which necessity might afford a defence to the defendants in the light of their beliefs on that basis. The extent to which their beliefs as to the facts will enable the defendants to establish any of the elements of the defence, in particular the requirement that they should be so acting in relation to people for whom they could reasonably regard themselves as being responsible is not a question we are called upon to answer. Conclusion. 56. For the reasons we have given and save to the limited extent to which we have referred in the last paragraph, the question of the legality of the war in Iraq is not therefore a matter which arises in these cases. It is not, therefore necessary in order to deal with the rulings, to consider whether or not that issue is non justiciable. We will hear counsel as to what the consequential orders, if any, should be.
{"ConvCourtName": ["BRISTOL CROWN COURT"], "ConvictPleaDate": ["12th May 2004"], "ConvictOffence": ["having articles in their custody or control on the 18th March 2003 intending to destroy or damage property", "to cause criminal damage.", "attempted arson"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["BRISTOL CROWN COURT"], "Sentence": ["data not available"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["discovered together by a senior USAF airman"], "DefEvidTypeTrial": ["a.Copy link to this paragraphduress of circumstance/necessity;b.the defence of lawful excuse", "c.the prevention of crime under section 3 of the Criminal Law Act 1967"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["The defendants have appealed", "The prosecution has appealed", "Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["The defendants have appealed against the judge’s ruling"], "AppealGround": ["namely the extent to which the defendants in the proceedings can rely on their beliefs as to the lawfulness of the United Kingdom’s actions in preparing for, declaring, and waging war in Iraq in 2003."], "SentGuideWhich": ["International Criminal Court Act 2001", "Section 29 of the Criminal Procedure and Investigations Act 1996", "Section 3(b) of the Criminal Damage Act 1971", "Section 1(1) of the Criminal Law Act 1997"], "AppealOutcome": ["It is not, therefore necessary in order to deal with the rulings, to consider whether or not that issue is non justiciable."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["the question of the legality of the war in Iraq is not therefore a matter which arises in these cases. It is not, therefore necessary in order to deal with the rulings"]}
{"ConvCourtName": ["Bristol Crown Court"], "ConvictPleaDate": ["2004-05-12"], "ConvictOffence": ["attempted arson", "having articles in their custody or control on the 18th March 2003 intending to destroy or damage property", "[conspiracy to]"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Bristol Crown Court"], "Sentence": ["Don't know"], "SentServe": ["Don't know"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Authority evidence"], "DefEvidTypeTrial": ["Self-defence or Justified Action", "Self-defence or Justified Action"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Other", "Offender", "Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Sentence"], "AppealGround": ["namely the extent to which the defendants in the proceedings can rely on their beliefs as to the lawfulness of the United Kingdom’s actions in preparing for, declaring, and waging war in Iraq in 2003."], "SentGuideWhich": ["International Criminal Court Act 2001", "Section 3(b) of the Criminal Damage Act 1971", "Section 1(1) of the Criminal Law Act 1997", "Section 29 of the Criminal Procedure and Investigations Act 1996"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["the question of the legality of the war in Iraq is not therefore a matter which arises in these cases. It is not, therefore necessary in order to deal with the rulings"]}
219
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. No. 201902662 B4 IN THE COURT OF APPEAL CRIMINAL DIVISION [2020] EWCA CRIM 1801 Royal Courts of Justice Monday, 7 December 2020 Before: LADY JUSTICE SIMLER MR JUSTICE GOSS HIS HONOUR JUDGE JEREMY RICHARDSON QC ( THE RECORDER OF SHEFFIELD ) REGINA V MUNER AL-JARYAN __________ Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] _________ MR T. SLEIGH-JOHNSON appeared on behalf of the Appellant. MR S. WARD appeared on behalf of the Crown. _________ J U D G M E N T LADY JUSTICE SIMLER: Introduction 1 On 19 March 2020 the conviction of Muner Al-Jaryan for possession of a prohibited firearm contrary to s.5(1)(aba) of the Firearms Act 1968 was quashed and a retrial was ordered by this court (myself, Goss J and the Recorder of Sheffield). Judgment was handed down the following day. An order preventing reporting of the judgment until the conclusion of the trial was made under s.4(2) of the Contempt of Court Act 1981. We shall refer to Mr Al-Jaryan as the defendant. 2 The order of this court was that the indictment should be served within one month and that the defendant should be re-arraigned within two months. The indictment was promptly served and uploaded to the Digital Case System. However, the defendant was not arraigned on that indictment within the two-month period specified, and it was not until 14 October 2020 at a PTPH in respect of a fresh matter that the mistake was appreciated by HHJ Connell who conducted that hearing. He correctly observed that the case would have to return to this court. The consequence is that the prosecution now apply for permission to arraign the defendant just under nine months after his conviction was quashed by this court. The application is made pursuant to sections 8(1) and 8(1B)(a) of the Criminal Appeal Act 1968 (the 1968 Act). The application is opposed by the defendant who seeks an order that we set aside the order for retrial and direct a verdict of not guilty, pursuant to section 8(1B)(b) of the 1968 Act on the indictment. 3 It is unnecessary for us to set out the full background and circumstances of the case giving rise to the appeal, or the reasons why the conviction was quashed, save in the barest of outline. We do however need to set out the chronology of events leading to this application in some detail. The facts 4 On 1 February 2017 police attended the defendant's address at Flat 11 Coopers Court, the Woodlands in Isleworth where he lived alone. Cannabis plants were being cultivated there, and when police entered the flat the defendant and another man were present. The rear windows of the flat were open, and officers saw two men running from the flat, having jumped out of the window. The defendant was arrested and his flat was searched. An eight-millimetre, blank-firing, self-loading pistol was found underneath the sofa cushion at the flat. There was no dispute that this was a firearm. 5 The defendant pleaded guilty to production of a Class B drug on 30 January 2018. He was subsequently tried for the firearm offence (which he denied) at Isleworth Crown Court in June 2019 and was ultimately convicted. At trial the disputed issue for the jury was whether the defendant knew the firearm was hidden under the sofa cushion. Significant reliance was placed by the prosecution on his confession in interview under caution that he knew that the firearm was in his flat and on the fact that he was able to provide a description of it in interview. That interview, however, took place without a solicitor present, though this was at the defendant's own election; and no appropriate adult was present notwithstanding the defendant’s clinical depression, which is a mental health disorder. 6 On appeal the defendant challenged the conviction as unsafe because (among other reasons) he said the jury should have been warned of the "special need for caution before convicting the accused in reliance on the confession" (section 77 Police and Criminal Evidence Act). We allowed the appeal given the centrality of the confession, holding that the firearm OPUS 2 DIGITAL TRANSCRIPTION confession was unsafe given the defendant's mental health vulnerability and in the absence of the appropriate warning. The firearm conviction was accordingly quashed on 19 March 2020 and we directed a retrial with reporting restrictions in place until after that retrial. 7 The papers were sent back by the Court of Appeal Criminal Division to Isleworth Crown Court, and the deadline for re-arraignment was 19 May 2020. On 20 March 2020 a Crown Prosecution Service (“CPS”) lawyer was allocated to the case and given instructions concerning preferment of a new indictment and the deadline for re-arraignment. 8 On 23 March 2020 a new indictment was uploaded to the Crown Court Digital Case System and Isleworth Crown Court was written to by the CPS advising of the deadline for rearraignment. On 27 March 2020 a follow-up letter was sent by the CPS to the court asking for an urgent listing. On 2 April 2020 the case was listed at Isleworth Crown Court for a bail application. Bail was not then opposed by the prosecution and the defendant was granted conditional bail. He was not produced either in person or remotely, and could not, therefore, be arraigned on that date. The prosecution was ordered to upload a new indictment by 15 April 2020, notwithstanding that this had already been done. The CPS re-uploaded the new indictment later that day. 9 A further order was made that the defendant was "to be arraigned by 18 May 2020". That was the day before the deadline expired. A record made by the listing officer at Isleworth Crown Court on 2 April 2020 in respect of that same hearing reads as follows: " Parties to arrange a convenient date for the defendant to be arraigned. " It is clear from that record that the listing officer placed the onus on the parties to ensure a suitable date was fixed for arraignment and that it was understood by the court that this was to be by 18 May 2020. 10 Notwithstanding that understanding and the words used by the court in the order made at the hearing on 2 April 2020, it appears that the CPS misunderstood the order to mean that the defendant was to be arraigned on 18 May 2020. That understanding was held, despite the fact that counsel who appeared for the prosecution sent the CPS an attendance note in terms that might be regarded as making the position crystal clear. The attendance note, so far as material and with emphasis added, reads as follows: "Attendance note for 2 April 2020. 1. This case was listed for a Skype hearing in court 9 before HHJ Wood in respect of an application for bail following the quashing by the Criminal Division Court of Appeal of MAJ's conviction for possession of a prohibited firearm [...] 6. HHJ thereafter in effect treated the case as a case management hearing and made the following orders: (i) Crown to upload a draft fresh indictment by 4.00 pm 15.4.2020. (ii) MAJ to be arraigned by 18.5.2020 . (iii) PTR on same day as arraignment. (iv) On date of PTR and arraignment MAJ to be on video at defence counsel's chambers or solicitor's office." 11 There was an application by the defendant thereafter to vary bail conditions and this was dealt with administratively on 17 April 2020. The "widely-shared comments" on the Crown Court Digital Case System have the following note: "This case is awaiting retrial and arraignment of the defendant. On application of the defence and with consent of prosecution bail residence condition varied". 12 There then followed almost a month between 17 April 2020 and 15 May 2020, when nothing whatever occurred. Counsel who appeared for the CPS on 2 April 2020 emailed the CPS at 3.02 pm on 15 May 2020. That was the Friday before Monday 18 May 2020. The email reads as follows: "Dear Louise, this case is being listed on Monday for PTR and arraignment, according to my attendance note for 2 April 2020. Is there anything I need to know? Are we still proceeding? I presume we are, unless told otherwise. Keep safe. Best regards, Robert." The reviewing lawyer replied immediately, saying, "We are indeed, and all of the evidence should hopefully have been copied across to the case, so like before we are good to go ...". 13 18 May 2020 came and went and nothing whatever occurred. The case was not listed and there is no evidence that anyone, whether counsel or the lawyer at the CPS, did anything to seek to understand why not or to make alternative arrangements. On 19 May 2020 the case was updated on the CPS computer system. The next hearing date was recorded as 8 June 2020. Thereafter, at regular intervals the case was updated on the CPS computer system with what are referred to by Mr Ward in his chronology, as “dummy dates", reflecting that the CPS was waiting for the court to provide a new date. The CPS however, did nothing in this period. 14 On 4 September 2020 the defendant appeared before the Uxbridge Magistrates' Court charged with new offences, including possession of an imitation firearm. He was remanded in custody for a PTPH at Isleworth Crown Court due to take place on 30 September 2020. That hearing was adjourned administratively to 14 October 2020. Meanwhile, the CPS computer system continued to update with new “dummy dates” and 17 October 2020 was recorded as the new dummy date. 15 On 14 October 2020 there was a PTPH at Isleworth Crown Court in relation to the new matter. During the course of the hearing the retrial was mentioned because the two cases were regarded as capable of joinder. At the end of the hearing the judge made the following comment explaining the orders made: "In this case the Court of Appeal ordered a retrial and the defendant was meant to have been arraigned before 18 May 2020. That did not happen even though there was a bail application on 2 April 2020 where the need for arraignment was raised. The Crown will need to go back to the Court of Appeal to get leave for a new indictment. If successful, the Crown are to upload any application for joinder by 4 November 2020. The defendant is remanded in custody on this matter but on technical bail on the [retrial], which will also be listed on that date. NB I have asked for the log of 2 April 2020 where his Honour Judge Wood granted bail and [raised] the issue of the need for arraignment to be uploaded to the bail section of the digital case system." 16 It is against that background and in those circumstances that the prosecution make the present application under section 8 of the 1968 Act. The legal requirements for re-arraignment out of time 17 Section 8 of the 1968 Act provides as follows: " 8. Supplementary provisions as to retrial. (1) A person who is to be retried for an offence in pursuance of an order under s.7 of this Act shall be tried on a fresh indictment preferred by direction of the Court of Appeal, ... but after the end of two months from the date of the order for his retrial he may not be arraigned on an indictment preferred in pursuance of such a direction unless the Court of Appeal give leave. (1A) Where a person has been ordered to be retried but may not be arraigned without leave, he may apply to the Court of Appeal to set aside the order for retrial and to direct the court of trial to enter a judgment and verdict of acquittal of the offence for which he was ordered to be retried. (1B) On an application under ss.(1) or (1A) above the Court of Appeal shall have power— (a) to grant leave to arraign; or (b) to set aside the order for retrial and direct the entry of a judgment and verdict of acquittal, but shall not give leave to arraign unless they are satisfied— (i) that the prosecution has acted with all due expedition; and (ii) that there is a good and sufficient cause for a retrial in spite of the lapse of time since the order under s.7 of this Act was made." 18 The prosecution application is made by Mr Ward on behalf of the CPS under section 8(1B) of the 1968 Act. The defendant, who is represented by Mr Sleigh-Johnson, opposes that application, as we have indicated, and an application is made on his behalf under section 8(1A) for an order that the order for retrial be set aside and a direction for the entry of a judgment and verdict of acquittal. 19 The prosecution has two hurdles to surmount in making this application. Both must be overcome. The first is to demonstrate that they have acted with all due expedition. The second is to demonstrate that there is a good and sufficient cause for a retrial in spite of the lapse of time. If the prosecution fail in relation to one or both hurdles the defence application must succeed. 20 For the prosecution Mr Ward submits, in essence, that there was no failure by the prosecution in this case to grip the needs of the case or to ensure that all due expedition occurred. Those concerned with this matter did not fail to register that there was a statutory deadline. Instead, the CPS acted immediately upon learning of the Court of Appeal's order that the defendant was to be retried, and were fully aware of their duties and of the deadline. He relies on the prompt uploading of the new indictment and submits that the failure to re-arraign was due to a misunderstanding held by counsel and the CPS of the court order made on 2 April. The CPS mistakenly thought that re-arraignment had been fixed to take place on 18 May 2020, rather than that arraignment was to be listed by action of the parties by 18 May 2020. Once that misunderstanding occurred, Mr Ward submitted that it was liable to persist. In those circumstances it was reasonable for the CPS to proceed on the assumption or belief that arraignment did in fact take place on 18 May 2020 and the rolling “next hearing” dates appearing on the CPS computer system were simply to be expected where a defendant on bail was awaiting trial, particularly given the delays and difficulties experienced in respect of communication with crown courts and staff as a consequence of the COVID-19 pandemic. So far as the misunderstanding in particular is concerned, he relied on the email exchange between counsel and the CPS on 15 May 2020 which reveals the fact of the misunderstanding and supports the conclusion that it was reasonable in all the circumstances. 21 As for the second hurdle, Mr Ward submitted that there is plainly good and sufficient cause for a retrial notwithstanding the lapse of time since the Court of Appeal's order in the seriousness of the offence, the ability of a fair trial to take place and the absence of any real prejudice. 22 For the defendant, Mr Sleigh-Johnson submitted that the CPS's understanding or belief that the defendant was to be arraigned on 18 May 2020 was not reasonably held given what is recorded both by counsel and by the listing officer at Isleworth Crown Court. The cause of the misunderstanding can reasonably be described as a breakdown in communication and as exemplifying the fact that those concerned simply failed to register the strictness of the statutory deadline and failed to take any or adequate steps to comply with it. He submitted that the CPS plainly did not act with all due expedition. Due expedition would have involved the CPS taking active steps to ensure attempts at arraignment long before the deadline in order to allow for repeated attempts (if necessary), particularly given the pandemic, the possibility of court closures, the increased risk of involuntary absences of defendants and the difficulties in accommodating the presence of defendants in court. The purpose of the arraignment deadline is to ensure that a retrial takes place as soon as possible, and given that purpose, even if there was some sense of certainty that arraignment would take place on 18 May 2020, passively allowing the court to fix arraignment the day before the deadline and then failing to take action between 15 and 19 May, as demonstrated by the chronology, cannot on any view be described as duly expeditious conduct. 23 So far as good and sufficient cause is concerned, Mr Sleigh-Johnson submitted that although the CPS relies on agreed or uncontested evidence, the defence case relies heavily on the recollection of the defendant and the delay has been far too long: witnesses will have to rely on fading memories of stale events. For those summary reasons, there is no longer good and sufficient cause for a retrial. Analysis and conclusions 24 It is unnecessary for us to analyse the law relating to section 8 of the 1968 Act in any great detail. We adopt the helpful summary of it provided by Gross LJ in R v Pritchard [2012] EWCA Crim 1285 , where the following was said: "5. The section has been considered in a number of authorities from which for present purposes, and focusing essentially on ss.(1B)(b)(i), we distil the following summary: (1) The purpose of the section is to ensure that the retrial takes place as soon as possible. The purpose is intended to be achieved by a focus on arraignment. Once arraignment has taken place, the case will be back under judicial control and the matter can be left to the judge to ensure that the retrial occurs at the earliest practical opportunity. (2) The section is structured in such a way that this court has no power to give leave to arraign out of time unless the cumulative requirements of ss.(1B)(b)(i) and (ii) are satisfied. (3) ‘Expedition’ means ‘promptness’ or ‘speed’. ‘Due’ means ‘reasonable’ or ‘proper’. The question of ‘due expedition’ relates to the arraignment, not to other aspects of the preparation for the retrial. Where the deadline has been missed, the court does not look simply at the end result, nor does the court conduct a minute examination of the systems employed in the offices and chambers of those involved in the prosecution. What is involved instead has been referred to as a broad ‘post mortem’. (4) The primary duty to ensure that the arraignment takes place within the time limit lies with the Crown Court concerned. However, all parties to the proceedings are also under a duty to co-operate to ensure that the defendant is re-arraigned within the two month time limit. (5) The requirement that the prosecution should have acted with ‘all due expedition’ is less exacting than that for the extension of a custody time limit (where the requirement is with ‘all due diligence and expedition’). See R v Colman (1992) 95 Cr App R 345 ; R v Kimber [ 2001] EWCA Crim 643 ; R v Jones ( Paul Garfield) [2002] EWCA Crim 2284 , [2003] 1 Cr App R 20 ; and R v Dales [2011] EWCA Crim 134 . Further citation of authority is unnecessary." 25 We too have considered the other cases to which Gross LJ referred. Given the circumstances of this case, we consider it appropriate to underscore the following points that emerge from those cases: (1) Given that the future trial is a retrial so that inbuilt delay has occurred, it is important that it should take place swiftly. (2) Very little will usually need to be done in terms of further preparation for trial as the case is to be retried. The prosecution papers will have been served earlier and the defence should be ready for trial. (3) Two important stages must be accomplished with some speed: first service of the indictment, and secondly, arraignment. The focus of section 8 is upon arraignment to ensure judicial control and oversight. (4) Arraignment engages active judicial oversight in order to ensure the case can be listed for trial at the earliest practical opportunity. (5) When this is not done, this court only has power to permit arraignment out of time when the cumulative requirements of section 8(1B)(b)(i) and (ii) are met, that is to say the prosecution must have acted with ‘all due expedition’, and there must be a ‘good and sufficient cause’ for a retrial in spite of the lapse of time since the order of the Court of Appeal was made. (6) The expression ‘due expedition’ means reasonable speed in relation to securing arraignment. (7) The primary duty to ensure that arraignment takes place within the time allowed is upon the crown court. Both the prosecution and the defence are required to be proactive in this regard, but ultimately it is the duty of the court to ensure the case is listed within time. Orders of the Court of Appeal usually arrive in the court office within a short space of time following the decision of the court, and prompt action by court staff is generally to be expected thereafter. 26 So far as this particular case is concerned, it is clear from the chronology to which we have already referred that there can be no criticism of the prosecution's compliance with the duty to upload the indictment for the retrial to the Digital Case System. That was done promptly on 23 March 2020, just four days after the decision of this court. We do not know from the chronology when the order of the Court of Appeal Criminal Division was officially received at the Isleworth Crown Court, but at all events, the CPS sought an early listing as shown by the emails dated 23 and 27 March 2020. There was then a bail application heard and determined by HHJ Wood on 2 April. We recognise that 2 April was during the early stages of the COVID-19 pandemic, and we understand that the hearing was conducted in less than ideal circumstances. The judge directed that arraignment should take place by no later than 18 May 2020, and we observe that it is unfortunate that a date was not fixed there and then. The problems would have been avoided had that been done. What is clear, however, is that what occurred thereafter and the confusion that ensued as to who had the responsibility for securing compliance with the direction of the judge led to the situation with which this court is now concerned. 27 It seems to us, on any view, that 18 May 2020 was far too late a date to take as a final listing deadline. What should have happened is that the parties in consultation with one another and with the court should have secured a much earlier listing. We agree with Mr Sleigh-Johnson that this was particularly so in the circumstances of the pandemic. However, that did not occur, and indeed, nothing occurred until Friday 15 May 2020. As we have observed, there was an inquiry by counsel instructed on behalf of the prosecution of the CPS as to whether the case was listed on 18 May 2020. The assumption was made that it was so listed without any action having been taken to check, whether by the CPS reviewing lawyer or by counsel, that this was in fact the case. 28 As circumstances transpired, the case was not listed on 18 May 2020 and at some point that must have become clear to counsel for the prosecution and/or the reviewing lawyer. But notwithstanding that, once again, nothing whatever occurred. There is nothing to suggest that counsel who attended court contacted the CPS lawyer to say that the case was not in the list, nor that the lawyer contacted the Crown Court to query why the case was not in the list, given the significance of 18 May as the last day before the deadline. Had urgent action been taken even at that point, no doubt an urgent listing could have been made for 19 May 2020. Mr Ward was unable to explain why nothing at all appears to have happened on 18 May 2020. It is clear to us that no alarm bells were sounded in either Isleworth Crown Court or the CPS then or in the weeks and months that followed. Equally, it is right to say that the defence did nothing to alert the court to the fact that nothing had been done to secure compliance with the deadline for arraignment. From the chronology with which we have been provided, it is clear that the CPS computer system simply showed on at least six occasions that the case was either not listed or had been given dummy dates. The critical deadline set by the Court of Appeal was therefore missed without any alarm having been raised, and it was only on 14 October 2020, when the defendant appeared before Isleworth Crown Court on a new charge and indictment, that this case was spotted as having been missed. On that occasion it became apparent that the case had been overlooked and the judge correctly observed that the parties would need to return to this court in order to seek permission for arraignment out of time. 29 In simple, terms it seems to us that nothing was done beyond 2 April 2020 by the Crown Court or the CPS, or indeed the defence, to secure a date for arraignment in court. Even when 18 May 2020 approached, it appears that nothing was done to alert the court to the fact that an important deadline was imminent. Even after the deadline passed, nobody sought to remedy the situation. Months passed before the problem was noted by a judge who was dealing with a new and unconnected case which happened to be in the same crown court and involving this defendant. 30 We appreciate that Isleworth Crown Court and all the parties in this appeal were labouring in difficult circumstances, as we have observed, during the early stages of the response to the COVID-19 pandemic. That may account for some of the failings, but simply to overlook the deadline and thus a mandatory order of the Court of Appeal is unacceptable, and we have concluded that it cannot be characterised as anything approaching reasonable speed on the part of the prosecution. Accordingly and for these reasons, we are not satisfied that the mandatory requirement within section 8(1B)(b)(i) is met. We are not satisfied that the prosecution acted with all due expedition. In our judgment, the prosecution should have taken urgent and purposeful steps to call the attention of the court to the absence of a firm date for arraignment well before 15 May 2020, but at the very latest on 15 May 2020. The conduct after that date reveals the absence of any semblance of urgency. 31 Given that conclusion, it seems to us that we do not have to consider whether there is good and sufficient cause for a retrial within section 8(1B)(b)(ii), and since any conclusion we express would be academic, we prefer to express no view in relation to this hurdle. 32 Accordingly, we refuse leave to arraign the defendant outside the two months permitted by section 8(1) of the 1968 Act. Furthermore, we grant the application made by the defendant, pursuant to section 8(1A) of the 1968 Act to set aside our order for a retrial dated 19 March 2020. We direct Isleworth Crown Court to enter judgment and verdict of acquittal on count 2 of the original indictment, which is the count upon which he was to be retried. 33 Finally, we consider it might be helpful for us to give some guidance as a means of endeavouring to avoid any repetition of the delay that has occurred in this case and that has led us to accept the submissions of the defendant. Firstly, we emphasise that it is the duty of the CPS to upload the new indictment to the Digital Case System at the first reasonable opportunity after the decision of the Court of Appeal Criminal Division. Secondly, once the notification from the Registrar of Criminal Appeals arrives at the crown court, usually within a very short time after the conclusion of the case, and usually accompanied by the order of the full court, the crown court should list the case before a judge for directions or pre-trial review on a fixed day within one month of the order of the Court of Appeal Criminal Division to enable arraignment to take place. Thirdly, the date so fixed should not be altered or adjourned without the express permission of the Resident Judge, and only then to a date within two months of the order of the Court of Appeal. It is recommended this be no later than several days before the expiry of the deadline. If the above regime is adopted, that will mean that there is proper judicial oversight and control of the date for arraignment and will lead to securing the earliest reasonable trial date. Should there be any lack of expedition on the part of either party, it can be corrected by the intervention of the court at an early stage. The second and third stages are pivotal to the efficient operation of the retrial process when that is what has been directed by the Court of Appeal. 34 In conclusion, for the reasons we have given, we refuse the application by the CPS to allow arraignment nine months after we ordered a retrial. We grant the application of the defence to direct an acquittal of the defendant. We lift the order made under s.4(2) of the Contempt of Court Act 1981, and this will enable our judgment handed down on 20 March 2020 to be reported. _________________ CERTIFICATE Opus 2 International Limited hereby certifies that the above is an accurate and complete record of the Judgment or part thereof. Transcribed by Opus 2 International Limited Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] This transcript has been approved by the Judge.
{"ConvCourtName": ["Isleworth Crown Court"], "ConvictPleaDate": ["30 January 2018"], "ConvictOffence": ["possession of a prohibited firearm"], "AcquitOffence": ["verdict of acquittal on count 2 of the original indictment, which is the count upon which he was to be retried"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Isleworth Crown Court"], "Sentence": ["data not available"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["his"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["defendant's address at Flat 11 Coopers Court"], "OffMentalOffence": ["defendant’s clinical depression, which is a mental health disorder"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["blank-firing, self-loading pistol was found"], "DefEvidTypeTrial": ["the firearm offence (which he denied)"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["conviction as unsafe", "who seeks an order that we set aside the order for retrial and direct a verdict of not guilty"], "AppealGround": ["conviction as unsafe"], "SentGuideWhich": ["sections 8(1) and 8(1B)(a) of the Criminal Appeal Act 1968", "s.4(2) of the Contempt of Court Act 1981", "section 77 Police and Criminal Evidence Act", "s.5(1)(aba) of the Firearms Act 1968"], "AppealOutcome": ["quashed and a retrial was ordered by this court", "refuse the application by the CPS to allow arraignment nine months after we ordered a retrial. We grant the application of the defence to direct an acquittal of the defendant. We lift the order"], "ReasonQuashConv": ["Accordingly and for these reasons, we are not satisfied that the mandatory requirement within section 8(1B)(b)(i) is met. We are not satisfied that the prosecution acted with all due expedition."], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["Isleworth Crown Court"], "ConvictPleaDate": ["2018-01-30"], "ConvictOffence": ["possession of a prohibited firearm"], "AcquitOffence": ["Possession of a prohibited firearm"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Isleworth Crown Court"], "Sentence": ["data not available"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Had mental health problems"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Police evidence"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["conviction as unsafe", "Conviction"], "AppealGround": ["conviction as unsafe"], "SentGuideWhich": ["section 77 Police and Criminal Evidence Act", "sections 8(1) and 8(1B)(a) of the Criminal Appeal Act 1968", "s.4(2) of the Contempt of Court Act 1981", "s.5(1)(aba) of the Firearms Act 1968"], "AppealOutcome": ["Dismissed-Failed-Refused", "quashed and a retrial was ordered by this court"], "ReasonQuashConv": ["Accordingly and for these reasons, we are not satisfied that the mandatory requirement within section 8(1B)(b)(i) is met. We are not satisfied that the prosecution acted with all due expedition."], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
129
Neutral Citation Number: [2015] EWCA Crim 1816 Case No: 201401869 C2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM His Honour Judge Radford Snaresbrook Crown Court Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/11/2015 Before : LORD JUSTICE BURNETT MR JUSTICE KENNETH PARKER and MRS JUSTICE ELSABETH LAING DBE - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Adeel Khan Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - David Josse QC (instructed by EBR Attridge Solicitors ) for the Appellant Jonathan Sandiford (instructed by CPS Special Crimes Division ) for the Respondent Hearing dates: 11 November 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Burnett: 1. The appellant appeals with leave of the single judge against a sentence of 15 years detention in a Young Offender Institution imposed on 17 April 2014 in the Crown Court at Snaresbrook by His Honour Judge Radford following his earlier conviction on 14 March of the attempted murder of Ismail Khan . The appellant also renews his application for leave to appeal against conviction relying exclusively upon fresh evidence which is said to undermine the safety of the conviction. Lengthy grounds of appeal against conviction were rejected by the single judge. They focussed on alleged shortcomings in the conduct of the defence. None of those grounds is relied upon any longer. The Conviction Application 2. These proceedings came before the full court on 12 June 2015. The “fresh evidence” comprises a statement referring to a short exchange of BlackBerry electronic messaging between Sohil Choudhury, who was a witness for the prosecution at the trial, and someone we shall call Jane. At the hearing we made an order that there shall be no publication of any material that identifies who Jane is or provides details which could lead to her identification as being concerned in these appellate proceedings. No detail is available in Jane’s statement or in a statement from the appellant’s solicitor reporting a further conversation with Jane of when the exchanges are said to have occurred. The appellant submits that the exchanges suggest that Choudhury falsely stitched him up as responsible for the attack. He relies also on a number of images said to have been taken from Choudhury’s Instagram profile, similarly undated, which suggest that he had a criminal lifestyle. The evidence produced is limited to screenshots of the material exchanges and pages which were apparently downloaded via a school computer. There was no evidence available in June to provide any credible link between that evidence and Choudhury himself. It was in those circumstances that the matter was adjourned for further investigation. By paragraph 2 of its order 12 June the court “Directed the applicant within a period of ten days, to present to the Crown Prosecution Service (CPS) such material as would enable the CPS, through the offices of the police, to look at the material with a view to assisting in the investigation of its alleged provenance” 3. The grounds of appeal are: “i. The evidence produced by [Jane] which indicates that [the appellant] had been falsely implicated in the attack should be before the Jury on any re-trial of the case that may be ordered. ii. The evidence showing that [Choudhury] was involved in the sale of drugs would have allowed the defence to put forward a credible motive to lie, and to implicate the Applicant. In addition such material would have assisted the making of a s100 application.” Mr Josse QC, who appears for the appellant, has not pressed the second ground because it was squarely before the jury that Choudhury was a drug dealer and it was also clear from their verdicts relating to other defendants that they did not accept much of his evidence. 4. The court’s concern in June was that in the absence of any demonstrable link between Choudhury and the material in the screenshots, the evidence could not carry the proposed appeal anywhere. We note that the Crown’s argument is, come what may, that the material does not undermine the conviction. The two issues which arise on the relevant statutory provisions in the Criminal Appeal Act 1968 [“ the 1968 Act ”] relating to fresh evidence may be summarised as: i. Is the evidence reliable or as section 23(2)(a) of the 1968 Act puts it “capable of belief”; and ii. Does it appear that it may afford a ground of appeal: section 23(2)(a) . 5. On 1 December 2014 the appellant’s solicitor was contacted by his mother who indicated that a witness, Jane, had fresh evidence to give. A colleague, Krystle O’Donnell, made arrangements to see Jane. They met on 19 and 30 December. At the second meeting some documents were provided to Ms O’Donnell with the balance being sent on 13 January 2015. Thereafter a statement was drafted and sent to Jane for signature. It was returned on 2 February. There appears to have been no attempt to secure any device which might provide proper evidence in the sense of being able to demonstrate that the messages and images of which Jane had provided screenshots came from Choudhury. 6. In her statement Jane said that she was a Facebook friend of Choudhury. She had seen a photograph on his Facebook page which included someone she knew as “Ads” who she had not seen around for a while and asked Choudhury who he was. She had never spoken to Ads. Why she had an interest in Ads is unexplained. Ads is the appellant. The first exchanges were via Facebook. A single page has been copied which does not contain the whole exchange but includes Jane saying “I need to talk to you about something rt please”. RT usually means “real talk”. The screenshot shows a BlackBerry PIN number in the reply and records, “Sent 6 Apr”. That cannot be a reference to 2015. If it refers to 2014, it would appear that Jane initiated this contact between the dates of conviction and sentence. There is nothing on the screenshots of the BlackBerry messaging exchange to indicate when it occurred. In her statement Jane indicated that the BlackBerry exchange followed the Facebook exchange. She exhibited the BlackBerry messages and added “I do not remember the exact time of this conversation but it was a few months ago.” She produced “examples” of photographs of Choudhury from his Instagram profile supporting what she said were his boasts of “cannabis, large amounts of money and weapons”. Rather enigmatically she added “I have given these documents to a previous solicitor but I do not know if they were used”. There is no explanation of that anywhere in the material before us. 7. Following the hearing in this court in June, Ms O’Donnell met Jane. Her statement explains Jane’s evidence relating to both the Blackberry and her Facebook account. At that meeting the screenshots already referred to were provided by Jane to the solicitor on a USB stick with an explanation that they had been downloaded using a school computer. Jane said that her BlackBerry broke in about February 2015 and was taken from her by her parents. She could not recall the phone number. She thinks it was a pay as you go phone and was registered with another relative. Jane could not remember her PIN or the associated messaging account. The timing and circumstances in which she downloaded the screenshots to a memory stick from a school computer and how the images got onto that computer are not explored or explained. So far as her Facebook account was concerned, Jane said she used Facebook until about February or March this year. The implication is that she stopped doing so then, although there is no indication why. She provided her user name and an associated email address, but could not remember her password. Jane said she had not deleted any content from her Facebook account. 8. Jane’s parents were unaware of her contact with the solicitor and would not have approved of her contacting Choudhury via BlackBerry or social media. 9. No doubt the expectation of both this court and the parties was that the BlackBerry would be provided and subjected to proper analysis; and also that Jane would enable access to her Facebook account to provide some prospect of an investigation whether the images said to come from Choudhury’s Facebook and Instagram postings in fact do so. PC Mark Evans, a specialist investigator of electronic evidence, was made available to examine whatever was produced by the appellant in compliance with this court’s order. He made a statement which was sent to the appellant’s solicitors under cover of a letter from the Crown Prosecution Service dated 15 August 2015. 10. He identified the issue he was concerned with as whether the BlackBerry messages came from Choudhury. He observed that BlackBerry are ‘not very helpful and have in the past ignored all requests.’ He then made a series of points relating to the BlackBerry. 1. A BlackBerry Messenger account is easy to set up by buying a pay as you go BlackBerry. A BlackBerry Messenger account is unique to the phone, but anyone can set up a BlackBerry Messenger server and use it to transfer messages untraceably. 2. Photographs of the kind shown in the screenshots can be copied in from various sources, which include Facebook and other social media sites or uploaded from the internet. The screenshots appear to be from a mobile phone, but carry no date or time, and no confirmation of who the message is from. 3. There is no evidence that Choudhury sent the messages. Neither the fact that the account appears to be in Choudhury’s name, nor the fact that he is in the pictures provides such evidence. 4. Without access to the telephone or to the BlackBerry Messenger account, it is not possible to check which BlackBerry Messenger PIN number was used to send any message, or when it was sent, or to whom that PIN belonged. A person can set up many accounts and ‘talk’ to him or herself. 5. The reference to a PIN in the body of the message does not take matters further. It appears to have been superimposed on the message, rather than being part of it. The fact that the PIN is in a message does not show that it is the PIN from which the message came. Choudhury’s BlackBerry Messenger PIN would be known to anyone who communicated with him via BlackBerry. 11. PC Evans found Jane’s Facebook account but it was completely locked down. All that was visible was the opening page with a photograph posted on 12 April 2014. No content was visible. 12. This survey of recent events and the nature of the evidence relied upon by the appellant leads to the conclusion that matters are no further forward than they were in June. It is in those circumstances that Mr Josse applies for the application to be adjourned once more to enable further investigations to be undertaken. He submits that an adjournment is necessary to allow one of three things to happen: for this court to (i) exercise the power conferred by section 23A of the 1968 Act to direct the Criminal Cases Review Commission [“CCRC”] to investigate the evidence of Jane and report back to the court, before deciding the question of leave; or (ii) direct the CPS to make further inquiries; or (iii) authorise public funding to enable the appellant’s solicitors to make further inquiries. Mr Josse submits that the first of these options is the most appropriate in the circumstances of this case. 13. The scheme of section 23A allows the Court of Appeal to direct the CCRC to investigate in connection with an application for leave to appeal against conviction. It may do so if the matter to be investigated is relevant to the determination of the application and ought, if possible, to be resolved before the application is determined. Further, that the matter cannot be resolved without an investigation by the CCRC. The “matter” which Mr Josse invites us to refer for investigation is the question whether the BlackBerry messages and other social media content came from Choudhury. If the CCRC route were not adopted, it is the same matter that he submits needs investigation by either the CPS or solicitors. 14. We see an insuperable difficulty with any and all of these suggestions. Jane has provided a series of screenshots but the lack of supporting information is such that any meaningful investigation is impossible. Mr Josse submits that the language of PC Evans does not conclusively shut out the possibility that BlackBerry itself might be able to help and inquiries might be made of Facebook. The lack of response PC Evans reports is familiar to the court. Both BlackBerry and Facebook are American corporations, which further circumscribes the scope for seeking assistance. But in any event, the absence of critical information to identify the relevant accounts provides an effective block. 15. We are not persuaded that a further adjournment is justified to allow further investigation of the authenticity of the screenshots because there is no reason to suppose that it would advance matters at all. 16. Mr Josse advances a subsidiary argument, namely that we should adjourn to enable Jane to attend to give evidence orally de bene esse to help inform the question whether her evidence is credible, albeit that she would be unlikely to shed any light on the authenticity of the communications she says she received. Mr Sandiford, for the Crown, submits that would be a pointless exercise because Jane cannot deal with the important question of authenticity, even if her evidence is otherwise capable of belief. 17. The circumstances in which Jane’s evidence came to light, coupled with the loss of the phone and memory failures regarding PIN numbers, passwords etc for both BlackBerry and Facebook coupled with the striking lack of detail in her statement leads us to doubt whether her evidence is capable of belief. But it is unnecessary to reach a conclusion on that question because the fundamental problem with the evidence, canvassed before the court in June, remains. The screenshots could not be admitted as second-hand evidence from Choudhury because of the impossibility of establishing that he was the author of their content. For the purpose of section 23 of the 1968 Act that content does not appear to be reliable. 18. We decline the application for an adjournment. Mr Josse realistically submits that absent the adjournment he is not in a position to advance the application for leave to appeal against conviction. We agree. In those circumstances, it is unnecessary to explore in detail the alternative submission advanced by Mr Sandiford, namely that the very short extracts from the BlackBerry messages relied upon (if from Choudhury) do not support the contention that Choudhury falsely accused the appellant of involvement in the attack. It is sufficient to record that there is substance in that submission. Additionally, Mr Sandiford reminded us that the Crown’s case against the appellant did not rely at all upon the evidence of Choudhury. His identification of the appellant came as a surprise. He had not identified him in either of his ABE interviews and did not mention him to the police as being involved in the attack upon Ismail Khan. There was powerful evidence from the victim who identified the appellant from an unusual scar on his lip and nose (visible despite wearing a head covering) and striking gait when he ran away. The appellant’s alibi was demonstrated to be false. Cell-site evidence placed him at the scene and his telephone ceased to be used straight after the attack and was then disposed of. This was a strong case without Choudhury. 19. The application for leave to appeal against conviction is refused. The Sentence Appeal 20. Ismail Khan, who was 15, was attacked with a hammer in a residential street in East London on the evening of 7 October 2012 by two assailants who had covered their heads. They ran off. He was with Choudhury. Ismail Khan was struck a number of times and suffered a fractured skull in three places. The appellant had just passed his seventeenth birthday. He and Ismail Khan were both pupils at Kingsford Community School. The year before Ismail Khan and the appellant’s younger sister had formed a relationship of some sort and went missing for 24 hours. There was concern that the appellant might seek retribution against Ismail Khan. A meeting was arranged which involved teachers, the police, both sets of parents and two boys. The meeting was heated and the appellant threatened Ismail Khan. 21. The head injury was serious and required extensive surgical intervention with substantial short-term problems with walking, blurred vision and loss of hearing. Those resolved but, as the judge recorded, Ismail Khan suffered “long term effects in terms of the psychological effect on his personality and his ability to enjoy life, to progress in his education, as has been said so clearly in the statements, the victim personal statements that I have read and considered.” As is so often the case with head injury, the immediate physical consequences resolve or substantially diminish but long-term significant psychological, personality and intellectual problems remain. 22. This was a planned revenge attack about a year after the incident which had offended the appellant. The appellant continued to deny the offence after his conviction. The mitigation available to him was that he was only 17 when he committed the offence and that he had no previous convictions. Mr Josse submits that in arriving at a sentence of 15 years the judge failed to give sufficient weight to the youth of this appellant and, although reciting the background, failed to appreciate that there were cultural issues in play which must have imposed subtle pressure on the appellant to do something. 23. The prosecution had advanced this case before the jury on the basis that it was “an attempt at a so-called honour killing”. The qualification “so-called” is very important. Normally when the word “honour” is used it conveys a sense of something noble or worthwhile. Attacks on women or girls, or the boys or young men with whom it is said they have behaved inappropriately, have nothing to do with honour. They are vile crimes, nothing less. We do not accept that an adult committing a revenge attack of this sort could suggest that such motivation provided any mitigation whatsoever. The position may be less clear-cut with a child or young person, just as it is when sentencing judges are dealing with young or vulnerable offenders who have genuinely been put under tangible and substantial pressure into committing any crime by identified family members or older friends. In this case there is no evidence at all that the appellant was put under any pressure to do what he did. On the contrary, when the events involving his sister and Ismail Khan occurred the previous year the evidence suggests that the pressure exerted was entirely the other way, including by his parents. A vague appeal to “cultural pressures” cannot assist any more than it would, for example, were a 17 year-old to beat someone up in a revenge attack for a perceived insult to his girlfriend and then said his response was the normal way of dealing with such matters in his family and social circles. 24. The judge directed himself correctly by reference to the Definitive Guideline relating to attempted murder. Mr Josse accepts that the judge located this offending at the right place within the guideline. This was a level 2 offence on the cusp between the bracket appropriate for “serious and long-term harm” (17 – 25 years’ custody) and “some physical or psychological harm” (12 – 20 years’ custody). The age of the victim was an aggravating factor and, as the judge recognised, the age of the appellant a mitigating factor. In arriving at a sentence of 15 years’ detention it is apparent that the judge allowed a significant discount to reflect the appellant’s youth. We do not agree that the sentence can properly be described as manifestly excessive. It was an appropriate sentence for this attempted murder. Conclusion 25. We dismiss both the application for leave to appeal against conviction and the appeal against sentence.
{"ConvCourtName": ["Crown Court at Snaresbrook"], "ConvictPleaDate": ["17 April 2014"], "ConvictOffence": ["attempted murder"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["continued to deny the offence after his conviction."], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Snaresbrook"], "Sentence": ["15 years detention in a Young Offender Institution"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["his"], "OffAgeOffence": ["seventeenth"], "OffJobOffence": ["pupils"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["He and Ismail Khan were both pupils at Kingsford Community School"], "VictimType": ["Ismail Khan, who was 15,"], "VicNum": ["Copy link to this paragraph Ismail Khan, who was 15,"], "VicSex": ["Ismail Khan,"], "VicAgeOffence": ["15"], "VicJobOffence": ["pupils"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["fractured skull in three places", "He identified the issue he was concerned with as whether the BlackBerry messages came from Choudhury. He observed that BlackBerry are ‘not very helpful and have in the past ignored all requests.’ He then made a series of points relating to the BlackBerry.1.A BlackBerry Messenger account is easy to set up by buying a pay as you go BlackBerry. A BlackBerry Messenger account is unique to the phone, but anyone can set up a BlackBerry Messenger server and use it to transfer messages untraceably.2.Photographs of the kind shown in the screenshots can be copied in from various sources, which include Facebook and other social media sites or uploaded from the internet. The screenshots appear to be from a mobile phone, but carry no date or time, and no confirmation of who the message is from.3.There is no evidence that Choudhury sent the messages. Neither the fact that the account appears to be in Choudhury’s name, nor the fact that he is in the pictures provides such evidence.4.Without access to the telephone or to the BlackBerry Messenger account, it is not possible to check which BlackBerry Messenger PIN number was used to send any message, or when it was sent, or to whom that PIN belonged. A person can set up many accounts and ‘talk’ to him or herself.5.The reference to a PIN in the body of the message does not take matters further. It appears to have been superimposed on the message, rather than being part of it. The fact that the PIN is in a message does not show that it is the PIN from which the message came. Choudhury’s BlackBerry Messenger PIN would be known to anyone who communicated with him via BlackBerry."], "DefEvidTypeTrial": ["continued to deny the offence after his conviction"], "PreSentReport": ["data not available"], "AggFactSent": ["an attempt at a so-called honour killing", "appellant threatened Ismail Khan.", "head injury was serious and required extensive surgical intervention with substantial short-term problems with walking, blurred vision and loss of hearing.", "age of the victim was an aggravating factor", "long term effects in terms of the psychological effect on his personality and his ability to enjoy life, to progress in his education,", "planned"], "MitFactSent": ["17", "previous convictions"], "VicImpactStatement": ["victim personal statements"], "Appellant": ["appellant appeals with leave of the single judge against a sentence"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against a sentence", "leave to appeal against conviction"], "AppealGround": ["safety of the conviction", "arriving at a sentence of 15 years the judge failed to give sufficient weight to the youth of this appellant and, although reciting the background, failed to appreciate that there were cultural issues in play which must have imposed subtle pressure on the appellant to do something.", "The evidence showing that [Choudhury] was involved in the sale of drugs would have allowed the defence to put forward a credible motive to lie, and to implicate the Applicant. In addition such material would have assisted the making of a s100 application.”", "The evidence produced by [Jane] which indicates that [the appellant] had been falsely implicated in the attack should be before the Jury on any re-trial of the case that may be ordered."], "SentGuideWhich": ["Definitive Guideline relating to attempted murder"], "AppealOutcome": ["dismiss both the application for leave to appeal against conviction and the appeal against sentence."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["arriving at a sentence of 15 years the judge failed to give sufficient weight to the youth of this appellant and, although reciting the background, failed to appreciate that there were cultural issues in play which must have imposed subtle pressure on the appellant to do something."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["judge located this offending at the right place within the guideline.", "We do not agree that the sentence can properly be described as manifestly excessive. It was an appropriate sentence for this attempted murder."]}
{"ConvCourtName": ["Crown Court At Snaresbrook"], "ConvictPleaDate": ["2014-04-17"], "ConvictOffence": ["attempted murder"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court At Snaresbrook"], "Sentence": ["15 years detention in a Young Offender Institution"], "SentServe": ["data not available"], "WhatAncillary": ["Don't know"], "OffSex": ["All Male"], "OffAgeOffence": ["17"], "OffJobOffence": ["Student"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Male"], "VicAgeOffence": ["15"], "VicJobOffence": ["Student"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["medical evidence", "expert witness"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["age of the victim was an aggravating factor", "an attempt at a so-called honour killing", "planned", "long term effects in terms of the psychological effect on his personality and his ability to enjoy life, to progress in his education,", "head injury was serious and required extensive surgical intervention with substantial short-term problems with walking, blurred vision and loss of hearing.", "appellant threatened Ismail Khan."], "MitFactSent": ["previous convictions", "young offender (17)"], "VicImpactStatement": ["Yes"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Other (e.g., application for extension of time to appeal)", "against a sentence"], "AppealGround": ["judge did not account for mitigating factors correctly when sentencing", "The evidence showing that [Choudhury] was involved in the sale of drugs would have allowed the defence to put forward a credible motive to lie, and to implicate the Applicant. In addition such material would have assisted the making of a s100 application.”", "The evidence produced by [Jane] which indicates that [the appellant] had been falsely implicated in the attack should be before the Jury on any re-trial of the case that may be ordered.", "conviction was unsafe"], "SentGuideWhich": ["Definitive Guideline relating to attempted murder"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["judge did not account for mitigating factors correctly when sentencing"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["We do not agree that the sentence can properly be described as manifestly excessive. It was an appropriate sentence for this attempted murder.", "judge located this offending at the right place within the guideline."]}
592
Neutral Citation Number: [2011] EWCA Crim 871 Case No: 201002571 C5 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CARDIFF His honour JUDGE NICHOLAS COOKE QC, the recorder of cardiff T20097519 Royal Courts of Justice Strand, London, WC2A 2LL Date: 07/04/2011 Before : LORD JUSTICE AIKENS MR JUSTICE KENNETH PARKER and SIR GEOFFREY GRIGSON - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - AARON LEE DAVIES Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Patrick Harrington QC for the Appellant Mr David Aubrey QC (who did not appear below) and Mr Leighton Hughes for the Crown Hearing dates : 11 th March 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Aikens : 1. This is our reserved judgment concerning an appeal against conviction by Aaron lee Davies, who is now aged 25. The appeal is made with the leave of the single judge. 2. On 12 April 2010, after a 3 week trial before the Recorder of Cardiff, HHJ Nicholas Cooke QC, and a jury in the Crown Court at Cardiff, Aaron Lee Davies was convicted of the manslaughter of Gareth Davies, aged 26. On 6 May 2010 the Recorder of Cardiff sentenced the appellant to 3 years imprisonment less 24 days spent in custody on remand. 3. We heard the oral argument of Mr Patrick Harrington QC on behalf of the appellant and Mr David Aubrey QC on behalf of the Crown (who did not appear in the court below) on Friday 11 March 2011. Having considered the matter most anxiously we have concluded that the appeal must be allowed and the conviction quashed, for the reasons we set out below. The Facts 4. The case arises out of events shortly after 1am on Sunday, 28 October 2007, outside a pub called “The John Fielding”, which is also known as “Wetherspoons” and which is in the centre of Cwmbran. In the evening of 27 October 2007 Gareth Davies and a number of friends celebrated Halloween by visiting bars and pubs in Cwmbran. They were dressed in fancy dress outfits. Gareth Davies was wearing a white “Ghostbusters” suit. He carried a backpack and was carrying a wand or sprayer in the manner of the ghost-buster characters in the film “Ghostbusters”. Also in this group was Matthew Ballam. He wore a white “Buzz Lightyear” suit. It had a green band on the front of the top part of the suit in the manner of the character of “Toy Story”. Another member of the group, Scott Evans, wore a Hannibal Lecter costume which consisted of a pair of orange overalls. There were two other young men in the group. Sam Hoskings was wearing a lumberjack shirt and mask. Daniel Davies wore a “Sylvester the cat” outfit. With them were several young women also dressed in fancy dress outfits. 5. The appellant had been at the John Fielding pub throughout the evening of 27 October. He was in the company of a number of young women and also a young man called Dariush Naserayan. 6. The appellant is of medium height, and has a muscled physique. He has ginger hair. On 27/28 October he wore his hair very short and it was brushed slightly forward. On that evening he was wearing jeans and a brown, short sleeved t-shirt with a distinctive tree profile motif in black across the front of it. At the left breast of the t-shirt there were a number of small badges, but they were not themselves conspicuous. There was an inner white lining to the t-shirt which meant that there was an external border of white at the neckline and at the edges of the short sleeves of the shirt. 7. Dariush Naserayan is distinguishable by his olive coloured skin, (his father being Iranian) and a distinctive mis-shapen nose. On 27/28 October 2007 Mr Naserayan was wearing jeans and a long sleeved white top. 8. The evidence at the trial was that the group in fancy dress outfits were having a good time at the John Fielding. Some of them were undoubtedly drunk. Evidence from one of the doormen was that the members of this group were, however, very well behaved and caused no problems. 9. The John Fielding pub has main doors at the front of the premises. It also has side doors. It is the practice of the pub to close the main front doors late each evening before closing time. Thereafter, the side doors are used for entering and leaving the premises. Immediately outside the side doors is a small courtyard area. On the left of the doors (if one faces out with the premises behind) there is a set of steps which leads up to a “smoking area” where there are tables and chairs. Straight ahead of the side doors is another set of steps which leads towards a car park. The premises have CCTV. This covers the inside of the pub, the courtyard outside and, from separate cameras, parts of the car park and its curtilage in the raised areas beyond the exit steps. CCTV recorded some, but by no means all of the events just outside the pub. They did not record what occurred in the external car park. None of the crucial, later, events which we are about to describe were recorded on any CCTV cameras. 10. Closing time for the John Fielding on 27/28 October was 1am. It is agreed that the sequence of events leading to Gareth Davies’ death started after 1 am, in the area at the top of the steps. One of the fancy dress outfit group, Sam Hoskings, elbowed or slapped the appellant in the back of the neck or head. It was probably not a hard blow, but, in the circumstances, it might have appeared to be provocative and, as events turned out, it was certainly foolish. The appellant was surprised by the blow. His reaction, as recorded on the CCTV images, was to turn round and confront Sam Hoskings. After a tussle between the two of them others intervened and parted them. The appellant and Sam Hoskings were then escorted from the premises by the licence holder, Mr Andrew Kempson. 11. The subsequent events were very much in dispute at the trial. The case for the prosecution was that the appellant, who, it claimed, was already in an aggressive mood that evening, then behaved aggressively towards others in the fancy dress group apart from Sam Hoskings. The prosecution alleged that the appellant aimed a blow towards at least one person, aimed a head butt at another and ended up grappling on the ground with Daniel Davies, who was dressed as “Sylvester the cat”. The prosecution alleged that the appellant then stood up and made his way towards Gareth Davies. 12. The prosecution case was that the appellant used his right fist to strike Gareth Davies on the left hand side of his face, which caused Gareth Davies to fall over backwards and slightly to the right, hitting his head on the tarmac surface of the car park. It was not in dispute that Gareth Davies lost consciousness immediately but came round quite soon thereafter. He refused to go to hospital and went to the house of Natalie Richards, a witness who had been in the group he was with that evening. Gareth Davies went up to bed, having been sick. Later the same morning Miss Richards tried to wake him but he could not be roused. He was taken to hospital but he never regained consciousness. On 30 October 2007, Gareth Davies died. The cause of death was severe brain damage resulting from fractures to his skull. At the trial the pathologist’s evidence suggested that the fatal impact leading to brain damage was to the right hand side of the back of Mr Davies’ head. The pathologist stated that, at the post mortem, he found injury to the left side of the face consisting of deep bruising in the tissues which was consistent with a punch. The crucial identification evidence at the trial 13. The principal issue at the trial was that of identification. There were three witnesses whose identification evidence was of crucial importance. Two were taxi drivers called Janet Edwards and Mark Brennan. They were in their taxis outside the pub and witnessed the assault on Gareth Davies. They subsequently identified the appellant at “Promat” identification procedures which took place in early November 2007. We will have to return to that procedure. 14. The third identification witness was Andrew Kempson. He described seeing a man fall to the ground following an assault by a man who fitted the description of Dariush Naserayan. It was the prosecution’s case that what Mr Kempson witnessed was a separate, earlier assault on Matthew Ballam, another person in the fancy dress outfit group. Andrew Kempson’s evidence at the trial is of key importance to this appeal. Events leading to the trial: the decision not to prosecute the appellant in December 2007 15. The appellant was arrested and interviewed on 29 October 2007. He was re-arrested on suspicion of manslaughter following the death of Gareth Davies. He was interviewed at length and in the course of the interview he placed himself at some distance from the incident involving the deceased. He also said that he had been attacked during the disturbances and had suffered injuries to his ribs and head. 16. The case was considered by the Crown Prosecution service. The advice of counsel was sought on whether the appellant should be prosecuted for manslaughter. There was a conference with counsel and he produced a short written advice the day after the conference. The advice confirmed his view that a successful prosecution could not be brought. The Senior Crown Prosecutor accepted this advice and endorsed it in a summary of four lines only. The appellant’s solicitors were informed of this in a formal CPS letter dated 18 December 2007. The principal and bizarre reason for the decision not to prosecute was that a defence of self-defence could not be negated. However, that defence had never been raised by the appellant in interview and was never an issue. Events leading to the trial: the Inquest and the aftermath 17. Because the CPS had decided that there would be no prosecution of the appellant, the papers were handed to HM Coroner for Cardiff and the Vale of Glamorgan, Miss Mary Hassell. On 23 May 2008, obviously as a result of the Coroner’s examination of the papers, including counsel’s advice, the Coroner’s officer requested a copy of the form MG3 which is the charging decision document in which the Senior Crown Prosecutor’s decision was recorded. The CPS refused to provide the Coroner with the form, but instead wrote to her and, in Judge Cooke’s words “… [rewrote] the original counsel’s advice in more intelligible terms demoting the clearly misconceived… “critical” self defence point to a secondary consideration appearing after the word “furthermore” and describing all of it as having been a consideration by the “reviewing lawyer ”: see page 6G of the judge’s ruling at the start of the trial, hereafter “the abuse ruling”. 18. Despite what must have been an obvious inconsistency between the terms of counsel’s advice to the CPS and the letter sent by the CPS to the Coroner, the Coroner decided that the main hearing of the Inquest into the death of Gareth Davies, which was fixed for 28 and 29 May 2008, should go ahead. But before the substantive hearing of the Inquest of Gareth Davies resumed, the Coroner saw in private two police officers who were involved in the investigation of Gareth Davies’ death. She must have been concerned at the evidence and the decision not to prosecute. The judge said (at 7C-D of his abuse ruling): “What is of some significance is that, to put it at its lowest, Her Majesty’s Coroner certainly indicated [to the two officers] that there was a very real possibility of an unlawful killing verdict and that she felt, as a preliminary paper-based view, that this case was one better suited to determination by a criminal court than by herself. Here alarm bells were sounding, an opportunity to put things right may well have been missed”. 19. The two police officers reported the Coroner’s statements to their superiors but no one seems to have sought legal advice or contacted the CPS about the matter. The only action of the police was to contact the press office so it could prepare a press-release for use in the event that a verdict of unlawful killing was returned. 20. The Inquest hearing went ahead. The appellant gave evidence. Having received the usual warning against self-incrimination he refused to answer questions that might incriminate him. It appears that two of the identification witnesses, Miss Janet Edwards and Mr Mark Brennan, were invited by the Coroner to make a “dock identification” of the appellant and did so. 21. Mr Kempson, the manager of the pub, gave evidence after Miss Edwards and Mr Brennan. He had been present in court when they had given evidence. Mr Kempson had made a very long and detailed statement to the police on 31 October 2007, that is three days after the incident. His statement to the police was that a young man who had on a “white boiler suit” was hit by another young man with a tanned complexion, short straight black hair and distinctive flat nose; a perfect description of Mr Naserayan. Mr Kempson’s statement was that the blow had been delivered with the left hand and although he did not see the punch connect, he did see the person it was aimed at falling backwards in a “rigid” manner and hitting his head hard on the ground. His statement also said that the person in the white boiler suit had been holding a pint glass with a dark liquid in it, which Mr Kempson thought was blackcurrant. 22. Mr Kempson had also attended the identification procedure also and he picked out Mr Naserayan’s image as being that of the person who delivered the blow he had seen. There is no criticism of that ID procedure. 23. At the Inquest Mr Kempson was not given the opportunity, before giving evidence, to refresh his memory of his long statement given some 6 months previously. As a result, Mr Kempson had some difficulty in recalling details and he gave evidence that was significantly inconsistent with his statement. In particular he referred to the person who had been struck by Mr Naserayan as a person wearing the “Buzz Lightyear” outfit. Despite the difference between the statement Mr Kempson had previously given and the oral evidence to the Coroner, she did not give him any opportunity to refresh his memory nor did she point out that his evidence was, in important respects, different from his previous statement. 24. The Coroner returned a finding of “unlawful killing” of Mr Davies. As is normal, the finding did not specify the person against whom the finding was made. The Coroner sent the papers back to the CPS and Gwent police. There was a review by Gwent Constabulary of the original investigation into the circumstances of the death of Gareth Davies. The review was critical of the original inquiry, although (slightly oddly in view of the letter of 18 December 2007 to the appellant’s solicitors), the police maintained that the inquiry had never actually been closed. 25. The CPS became involved again on 3 October 2008. In July 2009 the appellant was re-arrested and charged with the manslaughter of Gareth Davies. The trial: the application to stay the proceedings for abuse of process 26. At the start of the trial in March 2010, that is 2 ½ years after the incident, there was an application to stay the proceedings for abuse of process. The submission of Mr Harrington QC on behalf of the appellant was that, given the sequence of events, it would be unfair to try the appellant of the offence charged, such that the proceedings should be stayed. Mr Harrington relied on: (a) the unequivocal statement by the CPS that the appellant would not be prosecuted; (b) the way in which the inquest had been conducted and (c) the unreasonable delay leading up to a trial which turned principally on identification evidence. 27. The Recorder of Cardiff rejected those submissions. In our view it is important to note some of the specific findings of the judge made in the course of his abuse ruling. First, he reviewed the facts leading to the decision of the CPS in December 2007 not to prosecute. He concluded: (1) the advice of counsel that there should be no prosecution was a “ shoddy piece of work ” which should have been immediately recognised as “ not competent ”: page 4F. Another counsel should have been instructed to advise. (2) The decision taken not to prosecute was “ both incomprehensible and indefensible ”: page 3G. (3) That decision was “ plainly and seriously wrong ”: page 10E. 28. Secondly, the judge found that the appellant had been given an unequivocal assurance that he was not to be prosecuted. Thirdly, he found that there had been unreasonable delay on the part of the prosecution in reversing its decision not to prosecute. However, fourthly, he found that the decision to re-prosecute was “ within the ambit of a reasonable Chief Crown Prosecutor ” although it was a decision that was “ irregularly taken ” because it was, in fact, taken at a lower level, contrary to CPS legal guidance. 29. Despite these findings, The Recorder of Cardiff concluded overall that it was still possible to have a fair trial and it was fair to have a trial. He rejected the submission that the fact of an Inquest having taken place or “ anything about the way the Inquest was conducted or anything related thereto dictates that there cannot be a fair trial now ”: page 11F. We point out at this stage that the judge did not address specifically the possible detriment to the appellant at a subsequent trial that might result from the fact that Mr Kempson had not been permitted to refresh his memory of his statement before he gave oral evidence at the Inquest, and that (possibly as a result of this) his evidence had been inconsistent with his written statement made only 3 days after the fatal incident. 30. The judge recognised that the trial must incorporate strong safeguards to the defendant/appellant in relation to the effect of delay and other potentially adverse consequences of the history of the case. He also said that, in the event of a conviction, a “ reasonable observer ” would expect recognisable mitigation of sentence to reflect the delay and the fact that this appellant had been prosecuted after an assurance of no prosecution. The trial: the evidence of the identification witnesses 31. Janet Edwards described the struggles she saw whilst waiting in her taxi. She saw a person who was stockily built, had fair hair and was wearing a brownish t-Shirt. That person aimed a punch at Sam Hoskings but he ducked and so it missed him. She saw Scott Evans (in the Hannibal Lecter orange boiler suit) being punched in the face by a man with an orange t-shirt on. She believed that Dan Davies (Sylvester the Cat) was “involved” with the person in a brown t-shirt. 32. Judge Cooke summarised her evidence about who hit Gareth Davies as follows, at page 62C-D of his summing up: “ The guy with the orange t-shirt got up and punched Gareth Davies. It was a lad wearing an orange t-shirt. Gareth Davies was innocently standing there. He was in a white Ghostbusters suit, she saw it; it was right in front of her. The punch was with the right hand, she saw the contact. Yes, the contact was to the left side of the cheek near the mouth. The effect was to knock him to the floor. He went straight down and she radioed through seeking police an ambulance. He did nothing to stop himself falling, he just hit the floor”. 33. The judge recorded that she remained adamant in cross – examination that it was the man in the orange t-shirt who had punched Mr Davies. She had seen this at about 10 feet; in lighting that was good but dim but she had no difficulty in discerning different colours: page 68A of the summing up. 34. The jury heard the call that Ms Edwards made to Ms George at the taxi radio control, which Ms George relayed to the emergency services. In the course of the call Ms Edwards described the person who delivered the fatal punch as wearing an orange shirt and said he was still there. She also referred to a person in a brown shirt, but the attacker was in an orange shirt. 35. We note at this point that the judge said in his summing up that although the matter was for them, the jury might think that pale shirts and white shirts can acquire the colour of the street lighting, if, as here, it is sodium lighting, whereas dark coloured shirts cannot. He said that no one had actually said so in evidence but “ circling round some of the evidence that had been given ” was the notion that a pale white shirt in one of the more orange pools of lights might look orange and that might confuse the situation, but a brown shirt is not going to take on an orange hue under an orange light: page 48B. 36. Ms Edwards said that she had approached Gareth Davies, who gained consciousness whilst she was there, but she then left the scene and did not speak to the police at the time. We will deal with her evidence about her participation in the identification process below. 37. Ms Edwards also gave about an incident when the appellant had been a fare in her taxi some 9 to 12 months before October 2007, when she had been encouraged by someone in the back of the taxi to drive over a dog which was eating a kebab on the side of the road and she had told the passenger to get out. The young man had in fact been the appellant, although she said that she could not recall the young man’s face: summing up: page 66H. The appellant hotly disputed that he had urged her to run over the dog. 38. The second key identification witness, Mark Brennan, said that he saw a man in his early twenties, powerfully built, with long arms, who was wearing a brown t-shirt with white somewhere, attempt to head-butt another young man, who was Daniel Davies (“Sylvester the cat”) but the head-butt missed. He said that he saw a blow that led to someone being knocked to the ground; that boy was dressed in white as a Ghostbuster: page 79D of the summing up. Mr Brennan said that the punch was with the right hand and struck the victim square on the left side of the cheek at the side of the mouth and he heard the impact of the head hitting the ground, which was a really loud crack. He said that the boy with the brown t-shirt and a friend appeared to leave in the direction of McDonalds. He said that he had a full view of the person who had hit the boy who went down. The identification procedures 39. The Promat identification procedure uses images on a computer screen showing a full face view and a side face view. There is no view of clothing of the persons whose faces are seen by those taking part. A suspect will, in consultation with his solicitor, choose images from a computer maintained data base of others of a similar appearance to him so that there is a collection of 8 images of people who are similar to the suspect plus his own. Those images are then viewed by witnesses. 40. The judge set out for the jury the precise words used by the lady who was conducting the Promat process at pages 64H to 65D of the summing up. When Ms Edwards was performing the procedure that lady said: “Just to make you further aware, you are trying to identify the person who hit the male in the white suit, causing him to fall to the floor; not identifying that they were there at the scene”. Ms Edwards acknowledged that statement. Ms Edwards demanded to see certain of the images again, more than once. She then said: “I believe in my opinion it is number six”, which was the image of the appellant. The judge’s comment in summing up was that the words were “ perhaps not the most certain in how it is expressed, although the intention to identify number six is clear ”. 41. In relation to Mr Brennan’s part in the identification procedure, the judge first set out what was said to Mr Brennan by the person conducting the procedure, which was read from a pre-prepared script. The judge described the procedure as follows: “…. “You have been asked here today to see if you can,” and then the word has to be inserted because it is not in the script, “identify one of two males who you saw outside the John Fielding public house, Wetherspoons, in Cwmbran during the early hours of Sunday 28 th of October 2007. You state that you saw this male arguing with another male whom he tried to head butt. You also state that this male then began to fight with another male who had a ripped t-shirt.” That is the Sam Hoskin point, that was how he described him. “You further state that you saw this same male throwing punches and that one of these punches connected with another male wearing white clothing, causing him to fall to the ground.” …..” 42. Mr Brennan looked at all 9 images and then asked to see No 7 again. That was an image of the appellant. Then he said: “ Number 7 is the one. I certainly think I saw him there that night”. Then Mr Brennan was then asked another question by the person conducting the procedure. This was recorded by the judge at page 81E of his summing up: “ I further asked the witness whether he was confirming that he had seen male number seven at the John Fielding public house and that this male had thrown a punch which had connected with a male in a white suit”. The judge rightly described that as a compound question because it was asking whether he saw a man at the pub and whether that man had thrown the punch which connected with the male in a white suit. Mr Brennan replied: “ He punched a male who was dressed in white”. The judge’s comment was: “ so the answer at least was clear ”. The submission of no case to answer at the end of the prosecution case 43. At the close of the prosecution case, the defence submitted that the case should be withdrawn from the jury. It was argued, correctly, that this was, in essence, an identification case and that, in accordance with the principles set out in the well-known case of Turnbull, the case should be withdrawn from the jury because the identification evidence was insufficiently strong for them to reach a verdict that would be safe. In his ruling the judge considered carefully the evidence of the two taxi drivers, Mark Brennan and Janet Edwards, which constituted the foundation of the prosecution’s identification evidence. He concluded that Mark Brenan’s evidence of identification could properly be described as “ poor evidence of identification ”: ruling page 3F. He concluded that if Mr Brennan’s evidence were unsupported, that evidence “ might not be enough to be left to a jury ”: ruling page 4A. 44. The judge then considered the evidence of Janet Edwards, the other taxi driver. He said that, having carefully considered her evidence, he concluded that a “ reasonable jury properly directed could come to the conclusion that they are sure of Janet Edwards’ facial identification of the defendant and therefore [would be] able to conclude that it provides some support for Mark Brennan’s identification ”: ruling page 4E. That is hardly a ringing endorsement of the strength of her evidence. The judge accepted that there were flaws in her evidence, in particular her evidence that the assailant had been wearing an orange shirt, but the jury, properly directed, could “ glean some support ” from her identification via the Promat system. The judge also accepted that there was other support for the identification witnesses, in particular, the “ pathology-related ” evidence and also that of the eye witness Natalie Richards concerning the proximity of the appellant to the deceased when the latter was on the ground. 45. The judge therefore rejected the submission of no case to answer. The evidence for the defence 46. The trial then proceeded and the appellant gave evidence. He said that Sam Hosking (in the lumberjack shirt and mask) had hit him across the back of the head, which he had not expected and his head jolted forward. He said he thought he was being attacked so he grabbed Sam, but they were split up and he was escorted up the steps. He said that at the top of the steps he was approached by Sam Hoskings, Scott Evans (Hannibal Lecter outfit), Daniel Davies (“Sylvester the Cat” outfit) and Matthew Ballam (“Buzz Lightyear” outfit). He said that he was attacked, dragged to the ground and “given a shoeing” on the top of his head and in the ribs. His assailants were pulled off by Darius Naserayan and Rowan Nodwell. Darius had hold of a boy in orange. At some stage Darius did not have his top on. They walked up past two shops. They saw Gareth Davies on the ground in the middle of the car park but he did not go near him. He said that Natalie Richards, who had given evidence that the appellant was immediately by Gareth Davies when he was on the ground, was quite wrong in her recollection. 47. Andrew Kempson, the licence holder of the pub, gave evidence for the defence. At quite an early stage in his evidence in chief, he said that the passage of time made it more difficult to remember details and he was permitted to refresh his memory by looking at his statement of 31 October 2007. His evidence was that he separated two people fighting, one of whom was the “ginger-headed boy” who was quite aggressive “in a shocked manner”. He said that he viewed quite a lot of the fighting from a distance of some 20 to 30 yards. The critical part of his evidence is set out by the judge in his summing up as follows: “ … The man in the white boiler suit, slightly taller than me, five foot 11 inches height, to six feet, was a young boy in his early twenties. He noticed the boy with the tanned face and the distinctive nose. He started to walk towards the boy in the white boiler suit. The boy in the suit edged back, about two yards apart, so about six feet. The man with the distinctive nose pulled the arm back as though to punch, arm came forward, the boy in the white suit fell back and struck his head. He cringed, it was large or loud noise. The man who fell was holding a glass and it shattered as it hit the ground, then things went quiet. The boy with the nose turned and walked away. Others in fancy dress ran to the boy on the floor. The boy in the orange suit ran towards him and fell on top of him on the floor. “I was going to call the police or ambulance but I was told they had already been called.” The man with the nose had brought his hand back and then aimed what looked like a roundhouse punch, and you have got a point about the sort of contamination or phrases or something like that in relation to that, that is how it was described, roundhouse punch, that was a phrase that had been used by someone earlier. He didn’t see it connect. The man fell in a rigid way. He had his right arm out indicating as if to back off. He fell and caught his head on the floor. … ” 48. Mr Kempson’s said that after the punch he did not see the boy get up but later saw him standing up and talking to police with a group around him. He saw the ginger boy and the boy with the distinctive nose walk past him in the direction of Dominoes pizza shop and McDonalds. He then went inside. 49. Mr Kempson’s evidence in chief effectively conformed with his statement of 31 October 2007. 50. In cross-examination Mr Kempson was questioned at first about the contents of his statement. Effectively he stuck to it. Mr Spencer QC for the prosecution accepted that in his statement Mr Kempson had said that a lad in a white boiler suit had been hit with a left fist and had then fallen to the ground. But Mr Spencer suggested to Mr Kempson that he had been mistaken in so stating and that “the position became clear when you were answering questions at the Inquest”. Mr Spencer then questioned Mr Kempson closely by reference to a transcript of his evidence to the Inquest. It was put to him that this was quite inconsistent with his statement of 31 October 2007 and the evidence in chief he had just given, particularly as at the Inquest he had said that the person Darius Naserayan had struck with his left hand had been dressed in a “Buzz Lightyear” suit. 51. In cross-examination Mr Kempson confirmed that he had not been given the chance to read his statement before he gave evidence at the Inquest. He also said that he found that process intimidating and that he had felt uncomfortable. Mr Kempson twice rejected the suggestion that his evidence to the Coroner was accurate and that in his statement (and evidence in chief) was not saying that what he said in his statement, which was made much nearer the time, was likely to be what happened because it was then much fresher in his mind. 52. The judge reminded the jury of the parts of Mr Kempson’s statement of 31 October 2007 that had been introduced in his evidence. Effectively, the judge said that the evidence given by Mr Kempson in the witness box and that set out in his statement were the same. But, the “ complicating factor ” as the judge put it at page 112G of his summing up, was that Mr Kempson had given a different account at the Inquest: in particular that the man who was knocked down was wearing a “Buzz Lightyear” outfit. The judge summed up the effect of Mr Kempson’s evidence at the Inquest (page 115F), as put to him in cross-examination, as being “Darius hitting someone in the Buzz Lightyear outfit and not someone in the Ghostbusters outfit”. 53. There is no direct criticism of the terms of the judge’s summing-up to the jury. The judge warned the jury in firm terms that if they thought that Mr Kempson might be right in saying that Mr Davies fell other than as a result of a punch by the appellant, then they could not be sure of guilt: page 106D. The grounds of appeal and the submissions on the appeal 54. The single judge said, when granting leave: “ I think that the strongest way the appeal can be put is that the verdict is unsafe because of the delay and the weakness of the identification evidence”. Mr Patrick Harrington QC, who appears for the appellant, confirms that he will confine his submissions to that ground, although he also argues that there are facts surrounding the Inquest which are relevant to the principal argument that there were flaws in the identification evidence that make this conviction unsafe. 55. Mr Harrington points out that the judge stated, correctly in his submission, that the case against the appellant depended wholly on the correctness of two identifications of him, by Janet Edwards and Mark Brennan, which the appellant said were wrong: see summing up page 7B. It was common ground that this was a “fleeting glimpse” case, viz. the two identification witnesses only got a fleeting glimpse of the person who hit Gareth Davies and did so at night under artificial lights. 56. Mr Harrington makes the following submissions about the identification evidence of Miss Edwards and Mr Brennan. witnesses. First, he says that Miss Edwards had seen the appellant before when the appellant was in her taxi at the time of the dog incident. So this was more akin to a recognition rather than an identification. Secondly, he submitted that it was likely, although there was no proof, that Mr Brennan had seen the appellant before because he was the former boyfriend of Mr Brennan’s niece and it was likely he had seen them walking around Cwmbran whilst he was working as a taxi driver. 57. Those are not particularly good points, as Mr Harrington disarmingly accepted. More forceful is the fact that both witnesses must have seen the appellant in the course of the events leading up to the fatal blow and he was undoubtedly involved in some of the fighting that was going on, particularly with Sam Hosking, in the lumberjack outfit and with Scott Evans in the Hannibal Lecter outfit and then grappling on the floor with Daniel Davies (Sylvester the cat). But, at the identification procedure the indentification witnesses were not shown images of any other person who was present that night. The fact that both witnesses managed to identify the image of the one of the nine that was there that night made the force of the identification much less powerful, particularly as this was, as all agreed, a “fleeting glance” case. 58. Judge Cooke did give the jury a careful direction, at 64A-C, that the jury must look at the identification procedure with a very critical eye. He particularly warned them of the possibility that all the images apart from that of the appellant were of strangers who had not been there that evening and so someone who the witness had seen before would be identified as the one person who was known and hence might be misidentified. 59. Mr Harrington therefore submitted effectively, that their evidence is so weak that it cannot be rescued by so – called supporting evidence from other witnesses, such as that of Natalie Richards or the pathologist, so that case should not have been left to the jury and the conviction is unsafe. 60. The other area of the identification evidence that Mr Harrington has concentrated upon is that of Mr Kempson. Mr Harrington submitted that because of the way Mr Kempson’s evidence to the Inquest was dealt with, it meant that the force of his evidence on the identification of the person who dealt the fatal blow to Mr Davies was unfairly diminished and gave an unfair advantage to the prosecution at the trial because it was able to attack the credibility of Mr Kempson’s evidence in a way it could not have done if the Inquest had not taken place and Mr Kempson had not given the evidence he did at it. The Inquest would not have taken place but for the incompetence of the CPS and the advising lawyer in concluding that there should not be a prosecution. 61. In summary Mr Harrington’s submissions were these: (1) this was a “fleeting glance” case where the evidence of the crucial identification witnesses was uncertain and the procedure for both Ms Edwards and Mr Brennan was flawed. (2) It should not have been left to the jury, even if the weak direct identification evidence could be supported by other evidence such as that of the pathologist or Natalie Richards or Mr Kempson – either positively or negatively. (3) Because of the flaws in the way Mr Kempson’s evidence had been dealt with at the Inquest, that gave the prosecution an unfair advantage in being able to attack his evidence at the trial, which in fact fully accorded with what he had said in his witness statement some 2 ½ years previously and just days after the incident. (4) As an identification case, this should have come on for trial much sooner. The fact that the trial took place some 2 ½ years after the incident meant that even more care had to be taken in deciding whether it should be left to the jury. (5) Accordingly, despite the careful directions of the judge, this conviction is unsafe. 62. Mr Harrington did not directly challenge the judge’s ruling that the trial should not be stayed for abuse of process. Nor did he directly challenge the ruling that the case should go to the jury. But, effectively, he is challenging both those decisions in order to say that the conviction is unsafe. 63. Mr Aubrey QC, for the Crown, submitted that the identification evidence of Mr Brennan was strong, apart from his equivocal answer to the compound question at the procedure. We note that this submission is at odds with the judge’s view, which was given in his ruling immediately after Mr Brennan had given his evidence, that his evidence, unsupported, “ might not be enough to be left to a jury ”. We think it clear that, if that was the only identification evidence, the judge would have been bound to withdraw the case from the jury. 64. There are problems about Janet Edward’s identification evidence for two reasons. First, there is the fact that she was sure that the attacker of Mr Davies was wearing an orange t-shirt and she herself drew a distinction between an orange t-shirt and a brown one. She was sure that the attacker was not wearing a brown t-shirt. We note what the judge said about it being unlikely that a t-shirt that was brown in a white light would appear orange in sodium lighting. If the attacker was wearing an orange t-shirt, then it seems to us unlikely it could have been the appellant. 65. However, as against that, there is her answer in cross-examination when she was shown a photograph of the appellant wearing the brown t-shirt at the pub that evening that she saw that man, in that t-shirt hit Gareth Davies, adding that it looked orange. 66. The second problem was the possibility that she recognised him because he had been in her taxi at the time of the dog incident. But she was adamant that she had not seen his face on that occasion and so it could not be a case of recognition at the time of the identification process. There is, of course, the possibility that she had recognised him as simply being someone involved in the fighting outside the pub and put two and two together. But that was for the jury to decide. 67. Mr Aubrey submits that there was other, strong supporting evidence against the appellant. The principal facts he listed were: first, there is the evidence of the pathologist that the fatal impact leading to the brain damage was to the right hand side of the back of the head, whereas the man that Mr Kempson saw fall to the ground fell to the left. Secondly, the pathologist reported injury to the left side of Mr Davies’ face which was consistent with a right handed punch to the left side of his face, as described by the two taxi drivers, but contrary to the evidence of Mr Kempson. Thirdly, the evidence of Natalie Richards and Amanda Hughes was that they saw Matthew Ballam, who was dressed as “Buzz Lightyear” lying on the ground at a time when Mr Kempson was outside watching, which was consistent with his evidence at the Inquest. However, Mr Ballam had got up by the time Gareth Davies had been struck and had fallen. Fourthly, the CCTV showed that Gareth Davies did not have a glass or bottle in his hand immediately before walking up the steps (at about 1.20 am). He was carrying his wand in his left hand and a mobile phone in his right hand. Other photos taken earlier show that, at that stage, he was not drinking blackcurrant. Fifthly, Mr Kempson’s accuracy on identification details was reduced by his statement (in his original statement) that Mr Naserayan was wearing a short sleeved t-shirt, whereas the CCTV showed that he was wearing a white long sleeved t-shirt. In his oral evidence at the trial, Mr Kempson said that Mr Naserayan was wearing a short sleeved dark t-shirt. Analysis 68. Because of the history of the proceedings prior to the trial this is a most unusual case. It has caused us deep concern. We have reached the following conclusions: first, there was plainly a prima facie case against the appellant and he should have been charged immediately after the identification procedures in November 2007. The fact that he was not cannot be blamed on him. It was the result of incompetence on the part of the CPS and advising counsel. As the judge said in his abuse ruling, the decision not to charge the appellant was “ both incomprehensible and indefensible ”. Secondly, it is obvious that if the appellant had been charged, there would have been no Inquest in May 2008. Thirdly, it is clear that the Coroner took the view that the likely verdict of the Inquest would, in the absence of a change of evidence of the main identification witnesses, a verdict of “unlawful killing”. She took the trouble to notify the police of her preliminary view, doubtless hoping that they would take the hint and charge the appellant. The police did not do so. Fourthly, we note that the Coroner did not inform the solicitors acting on behalf of the appellant of her preliminary view. In our judgment fairness demanded that she should have informed them. The judge said, in his abuse ruling, that the solicitor acting for the appellant must have appreciated that he was at risk; that is not obvious. But we have seen nothing to suggest that the interests of the appellant were safeguarded at that stage. 69. Fithly, at the Inquest it is clear that Mr Kempson was not given the opportunity to read his statement before he gave evidence. That is normal practice at a criminal trial, particularly where there is a significant delay between the events and the trial itself as there was in this case. We would have hoped it was normal at an Inquest. It is clear that Mr Kempson gave evidence at the Inquest that was at odds with his original statement. There could have been no challenge to Mr Kempson’s honesty and independence when he gave his statement on 31 October 2007. There would have been none at the trial but for his evidence at the Inquest, even if there had been a strong challenge to the correctness of his recollection. 70. Sixthly, we think it also obvious that this statement was likely to be much more reliable than oral evidence given seven months or 2 ½ years after the event. But the consequence of Mr Kempson not being able to refresh his memory before he gave his evidence at the Inquest was that, almost inevitably, he gave evidence that was inconsistent with his earlier statement. Yet he was not permitted the opportunity then to consider his statement or to explain himself. As he said in evidence at the trial, he found the experience of giving evidence at the Inquest both uncomfortable and intimidating. 71. Lastly, as a consequence of Mr Kempson giving evidence at the Inquest that was inconsistent with his contemporaneous statement, that gave the prosecution the opportunity, at the appellant’s trial, of being able to cross-examine Mr Kempson in such a way as to throw considerable doubt on his overall credibility as a witness. This meant that the one eye witness, who was honest and independent of all participants and who was capable of casting real doubt on the accuracy of the other two identification witnesses, whose identification evidence had significant flaws, would inevitably appear to the jury as a witness whose credibility was seriously in doubt. 72. The consequence of these conclusions is that we must hold that there was a very significant irregularity in the Inquest taking place in the circumstances it did. Further, the Inquest resulted in detriment to the appellant at his subsequent trial because it gave the prosecution an opportunity to undermine the credit of Mr Kempson, who was a key witness for the defence on the identification issue, in circumstances which it would not normally have had. It is clear from our reading of the cross-examination of Mr Kempson that if the prosecution had not had the Inquest material, then he would, in substance, have stuck to the evidence given in his earlier statement. The fact that the prosecution could rely on the Inquest material, means, in our judgment, that the appellant did not have a fair trial. He suffered a major disadvantage as a result of incompetence on the part of the prosecution authorities coupled with an unfortunate failure of the Coroner to give Mr Kempson an opportunity to re-read his original statement. 73. We therefore have to ask ourselves: is this conviction unsafe? Mr Aubrey urged upon us that there was powerful evidence against the appellant. This included not just the identification evidence of Ms Edwards and Mr Brennan, but the pathology evidence of a blow to the left side of Gareth Davies’ face, the evidence of Natalie Richards that the appellant was standing near to where Gareth Davies had just fallen and the CCTV evidence to contradict Mr Kempson’s evidence that Gareth Davies had a glass or bottle in his hand when hit. In addition, there were the undoubted lies of the appellant in his interview about being attacked and kicked. 74. Against all that, however, we must remind ourselves that the judge correctly directed the jury, at page 106C of his summing up: “ If you think that Andrew Kempson my be correct in saying that Gareth Davies fell other than as a result of a punch by Aaron Davies, then it follows as night follows day, that you cannot be sure of guilt”. When the jury came to consider that vital question it must have been influenced by the fact that Mr Kempson’s credibility was seriously undermined by his evidence at the Inquest. We have concluded that if that Inquest evidence had not been before them, which it would not have been if there had not been the irregularities that had occurred, then the jury might well have decided that Mr Kempson might be right. Accordingly, the conviction must be unsafe. Conclusion 75. For those reasons we must allow the appeal and quash the conviction. If the Crown wishes to apply for an order for a retrial, we order that there must be an exchange of written submissions within 7 days of this judgment being handed down. Given the basis on which we have allowed the appeal, the Crown will have to address carefully the precise basis on which any such retrial should take place. If necessary we will hear oral submissions on the question of whether there should be a retrial.
{"ConvCourtName": ["Crown Court at Cardiff,"], "ConvictPleaDate": ["12 April 2010"], "ConvictOffence": ["manslaughter"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["custody on remand."], "RemandCustodyTime": ["24 days"], "SentCourtName": ["Crown Court at Cardiff,"], "Sentence": ["3 years imprisonment less 24 days"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["manslaughter of Gareth Davies"], "VicNum": ["Gareth Davies,"], "VicSex": ["He"], "VicAgeOffence": ["26"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["drunk"], "ProsEvidTypeTrial": ["identification evidence", "pathologist’s evidence", "post mortem", "CCTV recorded some", "witness"], "DefEvidTypeTrial": ["licence holder of the pub, gave evidence for the defence", "appellant gave evidence"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against conviction"], "AppealGround": ["stay the proceedings for abuse of process"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["conviction quashed"], "ReasonQuashConv": ["Mr Kempson’s credibility was seriously undermined by his evidence"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["Crown Court At Cardiff,"], "ConvictPleaDate": ["2010-04-12"], "ConvictOffence": ["manslaughter"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["24 days"], "SentCourtName": ["Crown Court At Cardiff"], "Sentence": ["3 years imprisonment less 24 days"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Don't know"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Male"], "VicAgeOffence": ["26"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Yes-drinking"], "ProsEvidTypeTrial": ["identification evidence", "post mortem", "pathologist’s evidence", "witness", "CCTV recorded some"], "DefEvidTypeTrial": ["licence holder of the pub, gave evidence for the defence", "Offender's account"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against conviction"], "AppealGround": ["stay the proceedings for abuse of process"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["conviction quashed"], "ReasonQuashConv": ["Mr Kempson’s credibility was seriously undermined by his evidence"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
422
No: 200503004/A8 Neutral Citation Number: [2005] EWCA Crim 2252 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 17th August 2005 B E F O R E: MR JUSTICE DAVID CLARKE SIR JOHN ALLIOTT - - - - - - - R E G I N A -v- LEE MATTHEW CHIVERS - - - - - - - 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 MASON appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T 1. MR JUSTICE DAVID CLARKE: On 4th March 2005 in the Crown Court at Bristol, the appellant pleaded guilty to an offence of criminal damage. On 3rd May he pleaded guilty to a further count on the indictment of dangerous driving and a count of affray. On 1st June 2005 he was sentenced to 12 months' imprisonment for dangerous driving, 9 months concurrent for the offence of affray, and one month concurrently in relation to criminal damage. He was disqualified from driving for 5 years in relation to the dangerous driving count and until an extended re-test is passed. He appeals against the period of disqualification only by leave of the Single Judge. 2. This appellant, who is 26 years of age, was responsible for a serious road rage incident. The circumstances were that a motorist, Mr Pears, was driving his Rover motorcar in Weston-Super-Mare. He saw the appellant behind him, revving the engine of his Vauxhall motorcar. The appellant was to claim in due course that Mr Pears had entered a roundabout when he should not have done, but Mr Pears was unaware of any previous incident. 3. What the appellant did was to overtake Mr Pears. He stopped immediately in front of him, got out of his car with something in his hand shouting and swearing. Mr Pears reversed away and the appellant hit his car. Mr Pears then drove off and the appellant got back into his car and chased him. Mr Pears was too scared to stop. He drove through a housing estate at high speed, the appellant behind him. He managed to put some distance between himself and the appellant and drove into a cul-de-sac to hide. But when he emerged five minutes later the appellant was still there, spotted him and sped up. He was forced to stop at some traffic bollards and Mr Pears was able to evade him by mounting the pavement. But when Mr Pears drove towards a leisure centre he was chased by the appellant. They drove round traffic islands the wrong way. A cyclist had to jump out of the way and a woman had to pull her children out of the appellant's way. 4. When the vehicles came to a stop, the appellant got out and ran towards Mr Pears carrying a wheel brace with which he hit Mr Pears' car, shouting "fucking wanker" and then drove off. Mr Pears estimated that the pursuit lasted about 12 minutes and covered a distance of six miles. He was extremely scared. £1,000 worth of damage was caused to his car. 5. The matter did not end there, because an off-duty police officer then saw the appellant drive through a red light and followed him, noting down the registration number of the vehicle. The appellant braked sharply in front of the officer, got out and approached the officer's vehicle. The officer was concerned for his safety and the safety of his child, who was in the vehicle at the time, and he reversed back up the road but the appellant kept accelerating and then braking just in front of the bonnet of the car. Eventually the officer was able to drive away but not without the appellant shouting "fucking wanker" at him. The officer said it was the most aggressive driving he had seen. 6. The appellant, when arrested, denied using his car on that day, although he admitted it was his. He was later positively identified at an identification parade. 7. The appellant is a man of 26. He had a previous conviction as a juvenile for violence. He had a more recent community sentence in respect of dishonesty and, in 1998, served a custodial sentence for a drugs offence. But he had no previous convictions in relation to motoring or bad driving. 8. There was a pre-sentence report and a medical report before the court. The pre-sentence report showed that he accepted full responsibility for the offences. He had just lost control of himself. He had suffered a traumatic episode in April 2004 which caused him a great deal of stress. That was an incident when he had been in work, set up a home with his partner and family, but had been assaulted following being at a night club, in circumstances which he did not remember, but had woken up soaking wet and bruised with ripped clothing and believed and feared that he had been sexually assaulted, following which he became depressed and irritable, was prescribed antidepressants and seeking the assistance of a psychotherapist. He was suffering anxiety attacks. He suffered a depressive illness as a response to trauma. It was thought that he would benefit from anger management treatment. 9. The pre-sentence report emphasised the severe impact that a prison sentence was going to have on his family. 10. There is no doubt that the prison sentence for this appalling behaviour was fully merited and no appeal is brought in respect of that. He has now served the majority of the time that he has to serve but will be on Home Detention Curfew for some time on his release. 11. The learned judge gave no reasons for the length of the disqualification which he imposed. He simply said: "You're driving licence will be endorsed and you stand disqualified for 5 years until you have passed your re-test." 12. This is a man whose living is based upon his driving. He works on the docks in relation to the importation of cars. He has to drive to carry on that job. There is an important principle in respect of the imposition of periods of disqualification that they should not, except in exceptionally severe cases, be so long as to impair prospects of rehabilitation, with the impact that that can have on the family of the offender as well as on him. It does seem to us that the period of disqualification which was imposed here was substantially too high. 13. The judge had passed entirely proper sentences of imprisonment for the disgraceful driving. He gave cogent and clear reasons for the term that he imposed. But there is nothing to indicate the considerations which led him to arrive at a 5 year disqualification. In these circumstances an appeal to this Court became inevitable. 14. The two principal factors that lead us to conclude that this period was far too long are the absence of any previous motoring convictions and the absence of indication of bad driving in the past. We do not of course overlook or minimise the danger which he caused by his appalling aggressive driving on this occasion. But the sentence of imprisonment was passed in respect of that. It does appear to have been out of character for this man so far as driving is concerned. 15. The effect on him and his family is the other factor that weighs heavily with us. This family included a number of young children who need him as the breadwinner. For some time he will have to find employment which does not involve the need for a driving licence. 16. The minimum period of disqualification for dangerous driving is 12 months and we are urged to reduce this to that minimum. But the disgraceful and prolonged nature of the driving in this case albeit on that single occasion, fully justifies and indeed requires a significant uplift from that minimum. We have attempted to balance all relevant considerations. We will quash the disqualification of 5 years in this case, and substitute for it a period of disqualification of 18 months. The order for the extended re-test of course remains unaltered. The appeal is allowed accordingly.
{"ConvCourtName": ["Crown Court at Bristol"], "ConvictPleaDate": ["4th March 2005"], "ConvictOffence": ["criminal damage.", "dangerous driving", "affray"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Bristol"], "Sentence": ["12 months' imprisonment for dangerous driving, 9 months concurrent for the offence of affray, and one month concurrently in relation to criminal damage."], "SentServe": ["concurrent"], "WhatAncillary": ["disqualified from driving for 5 years in relation to the dangerous driving count and until an extended re-test is passed."], "OffSex": ["he"], "OffAgeOffence": ["26"], "OffJobOffence": ["He works on the docks in relation to the importation of cars."], "OffHomeOffence": ["home with his partner and family"], "OffMentalOffence": ["depressive illness as a response to trauma"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["a motorist"], "VictimType": ["Mr Pears"], "VicNum": ["a motorist, Mr Pears"], "VicSex": ["Mr"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["identification parade."], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["prolonged nature"], "MitFactSent": ["effect on him and his family"], "VicImpactStatement": ["data not available"], "Appellant": ["appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against the period of disqualification only"], "AppealGround": ["The learned judge gave no reasons for the length of the disqualification which he imposed."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["We will quash the disqualification of 5 years in this case, and substitute for it a period of disqualification of 18 months."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["The two principal factors that lead us to conclude that this period was far too long are the absence of any previous motoring convictions and the absence of indication of bad driving in the past."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
{"ConvCourtName": ["Crown Court At Bristol"], "ConvictPleaDate": ["2005-03-04"], "ConvictOffence": ["affray", "dangerous driving", "criminal damage."], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Bristol"], "Sentence": ["12 months' imprisonment for dangerous driving, 9 months concurrent for the offence of affray, and one month concurrently in relation to criminal damage."], "SentServe": ["Concurrent"], "WhatAncillary": ["disqualified from driving for 5 years in relation to the dangerous driving count and until an extended re-test is passed."], "OffSex": ["All Male"], "OffAgeOffence": ["26"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Had mental health problems"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Stranger"], "VictimType": ["Individual person"], "VicNum": ["1 of 1"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["identification parade."], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["prolonged nature"], "MitFactSent": ["effect on him and his family"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Sentence"], "AppealGround": ["The learned judge gave no reasons for the length of the disqualification which he imposed."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["The two principal factors that lead us to conclude that this period was far too long are the absence of any previous motoring convictions and the absence of indication of bad driving in the past."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]}
479
Neutral Citation Number: [2011] EWCA Crim 1231 Case No. 2011/01954/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Wednesday 20 April 2011 B e f o r e: LORD JUSTICE TOULSON MR JUSTICE DAVIS and MR JUSTICE EDER __________________ R E G I N A - v - CHARLIE SPENCER __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) __________________ Mr J Winship appeared on behalf of the Applicant ____________________ J U D G M E N T LORD JUSTICE TOULSON: I shall ask Mr Justice Davis to give the judgment of the court. MR JUSTICE DAVIS: 1. The applicant is now aged 19. On 8 February 2011 at the Crown Court at Woolwich he pleaded guilty on re-arraignment to affray. On 11 March 2011 he was sentenced to a term of six months' detention in a young offender institution. His application for leave to appeal against sentence has been referred by the Registrar to the full court. 2. There were a number of co-accused. Two, O'Brien and Cowling, pleaded guilty to counts of inflicting grievous bodily harm and affray and were sentenced to twelve months' detention in a young offender institution. Three others, Robinson, Strugnell and Murphy, pleaded guilty on re-arraignment to affray and received the same sentence as the applicant, that is six months' detention in a young offender institution. 3. The background facts can be very shortly stated for present purposes. The applicant had been to a night club in the O2 area of East London with his co-accused. He left the club with a number of them at around 4am on 7 March 2010. They joined up with two others who had been with them earlier that evening and went to buy some food. They then made their way to a bus stop. There were two students at the bus stop. One of them objected when one of the members of the applicant's group started to urinate on the pavement. The group went over and started to remonstrate with the student. He was kicked and punched by members of the group. His friend sought to intervene. The applicant joined in the ensuing fight after, he said, he was punched by one of the complainants. He struck at one and kicked out at another. During the course of the fight the first student was also head-butted. He was subsequently taken to hospital, where he was treated for fractures to the medial wall and floor of the left orbit. His friend sustained a cut to the chin. 4. After the attack had finished, the group walked off. A bus driver refused to let them board his bus. The police were summoned. The members of the group were found in the area and were arrested. 5. When he was interviewed, the applicant admitted becoming involved in the melee and said that he was very drunk at the time. 6. The applicant has no previous convictions of any kind. Indeed, there was documentation indicating positive good character. 7. The sentencing judge had before him a very detailed and thorough pre-sentence report which indicates that the applicant appeared genuinely shocked and empathised with the position of the victims. In dealing with his personal circumstances the pre-sentence report states: "With reference to [the applicant's] education and employment achievements, the [applicant] tells me that he left secondary education with nine GCSEs and an A level in food technology. [The applicant] states that he began an electrical engineering course at Bexley college but left in his first year due to being in fear for his safety having been the victim of a robbery in that area. In terms of employment the [applicant] stated that he has a limited work history due to his age but has previously worked as a pipe fitter at Harrods. At present [the applicant] is a registered full-time carer for his mother who suffers from epilepsy and has provided further evidence to support this in the form of Department of Work and Pensions payments. Furthermore, the [applicant] also stated that his father recently suffered a broken back and as such he also provides care for his father when needed. In light of his current family responsibilities, [the applicant] is unable to secure full-time employment. However, he plans to explore the possibility of attending university in the foreseeable future to improve his employability." There is also a reference to the applicant's partner being pregnant. We are told that she lives with the applicant and his mother. The pre-sentence report goes on to stress that what happened was totally out of character and that the risk of re-offending was low, providing that the applicant did not mix with the wrong company. The author proposed a suspended sentence with conditions and stated that any custodial sentence, if immediate, would have "detrimental implications for his family as he is the registered carer for his mother and also assists his incapacitated father". 8. On behalf of the applicant Mr Winship, realistically and rightly, accepts that at first sight there can be no complaint at a custodial sentence of this order. Indeed, it might be said that at second sight that would also seem to be so. He accepts that this application for leave to appeal may seem unusual. He rightly acknowledges that the public is fed up with this kind of prevalent and frightening public disorder. This was a group attack on people acting in a public spirited way in protesting at loutish behaviour, one of whom suffered serious injuries in consequence of being attacked, all this at night in a public place. It is ironic that the applicant should have associated himself with this group attack after his own previous experience of violence inflicted upon him which caused him to leave the Bexley area. 9. Mr Winship nevertheless submits that this sentence was too long. He was reluctant, however, to attribute the words "manifestly excessive" to the sentence: although this court can ordinarily only interfere if the sentence is manifestly excessive or wrong in principle. At the heart of Mr Winship's argument today is a plea for mercy. He submits that if mercy is shown to the applicant, as he says is justified, then the sentence either should have been, and should be, suspended, or at all events it should be reduced from the six month term imposed by the judge. Mr Winship founds himself on the applicant's guilty plea, his positive good character and his age, all of which were acknowledged by the judge. But Mr Winship's main focus of emphasis was to concentrate on the applicant's mother's position and also the position of his father and of his pregnant girlfriend. The applicant is the registered full-time carer of his mother and there is a degree of dependence on the part of the mother and it would not be right that she should be separated from him as her carer for any time longer than is necessary. 10. It appears to us that the mother is not fully dependent on the applicant in the sense of 24 hours a day. Indeed it is to be noted that for a period of time the applicant was able to attend an electrical engineering course in Bexley, he had employment with Harrods for a period of time, and he has ambitions of attending university in the foreseeable future. All that indicates that there will be a means by which his mother's needs can be catered for. Although it may be that for the applicant to serve a custodial sentence will have a detrimental impact upon her, there is nothing to indicate that the consequences of his having to serve a custodial sentence will be devastating so far as she is concerned. Indeed we are told today that the applicant's pregnant girlfriend is apparently still living with the mother. So far as the father is concerned, no doubt he has much appreciated and benefited from the applicant's support, but that is little basis for departing from what otherwise is a wholly justified sentence. 11. Mr Winship concentrates wholly and solely on the applicant's personal circumstances and the mitigation available to him, including the impact on his family. However, the court must have regard not only to the situation of the applicant, but also to the offence offence. This was a very nasty offence. It cannot possibly be said that the sentence imposed by the judge was in any way excessive or failed to have due regard to all the mitigation available. 12. Accordingly, in those circumstances this application is refused. _______________________
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{"ConvCourtName": ["Crown Court At Woolwich"], "ConvictPleaDate": ["2011-02-08"], "ConvictOffence": ["re-arraignment to affray"], "AcquitOffence": ["Don't know"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["during court proceedings"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court At Woolwich"], "Sentence": ["six months' detention in a young offender institution"], "SentServe": ["data not available"], "WhatAncillary": ["Don't know"], "OffSex": ["All Male"], "OffAgeOffence": ["19"], "OffJobOffence": ["Other"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Yes-drinking"], "OffVicRelation": ["Stranger"], "VictimType": ["Individuals"], "VicNum": ["2"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Student"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["medical evidence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Low risk of reoffending", "Don't know"], "AggFactSent": ["large number of offenders/gang"], "MitFactSent": ["young offender", "positive good character.", "The applicant has no previous convictions of any kind."], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["5"], "AppealAgainst": ["appeal against sentence"], "AppealGround": ["excessive sentence"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["sentence was not excessive and was justified"]}
563
Case Nos: 201105757 B5, 201105758 B5,201105759 B5 Neutral Citation Number: [2011] EWCA Crim 3237 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday, 14 December 2011 Before: LORD JUSTICE PILL MR JUSTICE FOSKETT HIS HONOUR JUDGE WIDE QC (Sitting as a Judge of the Court of Appeal, Criminal Division) - - - - - - - - - - - - - REGINA -v- (1) IDEAL WASTE PAPER CO LTD (2) N (3) B - - - - - - - - - - - - - Computer Aided Transcript of the Palantype Notes of Wordwave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - MR M HARRIS appeared on behalf of the Appellants MR S MEHTA (instructed by the Crown ) appeared on behalf of the Prosecution - - - - - - - - - - - - - JUDGMENT LORD JUSTICE PILL: 1 This is an appeal against a ruling made by His Honour Judge Andrew Campbell in a preparatory hearing at Kingston Crown Court on 10 October 2011. The hearing was held under Section 29 (1) of the 1996 Act. The judge declined to stay proceedings against Ideal Waste Paper Company Ltd and others ("the appellants") as an abuse of process of the court or to exclude disputed evidence under Section 78 of the Police and Criminal Evidence Act 1984. 2 The ground of the application is that the test to be applied in classifying the waste as prohibited or not is so imprecise as to offend common law and European Union law requirements for accessibility and certainty in criminal offences and/or similar requirements under Article 7 of the European Convention on Human Rights. Permission to appeal was given by the judge. 3 The statement of offence in each case provides: "Transporting waste for recovery in a country to which the OECD decision does not apply contrary to Regulation 23 of the Transfrontier Shipment of Waste Regulations 2007." ("The 2007 Regulations") 4 The particulars of offence in count 1 are that the defendants, between 11 March 2009 and 25 March 2009, transported waste specified in Article 36 (1) (b) of the European Waste Regulation 1013/2006 ("the 2006 Regulation"), and listed in Annex V, Part 3 of that Regulation, namely waste collected from households that was destined for recovery in China. 5 Count 2, in the alternative, refers to China as the country of destination and Article 36 (1) (f) is specified instead of Article 36 (1) (b) of the Regulation. 6 Counts 3 and 4 are against named individuals, alleging consent, connivance or neglect on this part in this respect as officers of the company. 7 Regulation 23 of the 2007 Regulations provides: "A person commits an offence if, in breach of Article 36 (1), he transports waste specified in that Article that is destined for recovery in a country to which the OECD Decision does not apply." It is common ground that China is such a country. Article 36 of the 2006 Regulation, under the heading "Exports Prohibition", provides, in so far as is material: "1 Exports from the Community of the following waste destined for recovery in countries to which the OECD Decision does not apply are prohibited: ..... (b) waste listed in Annex V Part 3; ..... (f) wastes the import of which has been prohibited by the country of destination; ..... " It is accepted that the same test will apply in relation to (f) as that in (b) so that there is no need, for present purposes, to give separate consideration to it or to count 2 of the indictment. 8 The Basel Convention came into force in 1992 as a global response to the growing trade in hazardous waste between developed and developing countries. It has been ratified by very many states, including the United Kingdom and China. Article 11 of the Convention provides that - "1 ..... Parties may enter into bilateral, multilateral, or regional agreements or arrangements regarding transboundary movement of hazardous wastes or other wastes with parties or non-parties provided that such agreements or arrangements do not derogate from the environmentally sound management of hazardous wastes and other wastes as required by this Convention." 9 The 2006 Regulation is such an agreement via the OECD Decision C (2001) 107 ("Decision 107") concerning the movements of waste for recovery (as amended). The concept of "green" listed wastes is in the Basel Convention. Decision 107 classifies waste according to a traffic light system, with non-hazardous waste appearing on a green list and hazardous waste appearing on an amber or red list. For present purposes the distinction need only be made between prohibited and non-prohibited waste. 10 Introductory Notes to Annex V of the 2006 Regulations state that it has three Parts and two Lists within each Part. Counsel are not agreed about the status of Introductory Notes to a Regulation such as this but the difference is not material in this appeal. The Note states that List A " ..... lists wastes which are classified as hazardous by Article 1 (1) (a) of the Basel Convention, and therefore covered by the export prohibition and List B lists wastes which are not covered by Article 1 (1) (a) of the Convention, and therefore not covered by the export prohibition." The Introductory Notes also provide that - " ..... an initial check must be made to ascertain whether the waste is listed in Part 1 of this Annex, and, if it does not, whether it is listed in Part 2, and, if it does not, whether it is listed in Part 3." 11 Part 3 of Annex V lists wastes covered by the prohibition. "Y46" appears and is defined as "waste collected from households." China has prohibited the import of Y46 waste for disposal or recovery (count 2). A footnote to Y46 permits exceptions, but they are not claimed to be relevant for present purposes. 12 List B of Part 1 to the Annex includes, as waste not covered by the export prohibition, a category at B3020 under the heading "Paper, paperboard and paper product wastes": " B3020 Paper, paperboard and paper product wastes The following materials, provided they are not mixed with hazardous wastes: Waste and scrap of paper or paperboard of: — unbleached paper or paperboard or of corrugated paper or paperboard — other paper or paperboard, made mainly of bleached chemical pulp, not coloured in the mass — paper or paperboard made mainly of mechanical pulp (for example, newspapers, journals and similar printed matter) — other, including but not limited to laminated paperboard; unsorted scrap." 13 For present purposes it is accepted that the waste in this case had been treated at a municipal recycling facility. The defendants claim that it was no longer household waste within the meaning of Y46 but was paper, paperboard and paper product wastes as defined in B3020. 14 The waste had been transported in twenty-nine 40-foot containers to Southampton. There, the containers were inspected and there is evidence that they were found to contain not only waste paper and cardboard but items of household waste, coloured and clear hard plastics, metal cans, plastic film, tetrapak cartons unopened plastic bags, a black bag containing rotting meat, polystyrene and jeans. 15 The Introductory Notes to Annex V also provide a proviso in relation to List B in Part 1 which includes B3020: "Wastes listed in List B of Part 1 ..... are covered by the export prohibition if they are contaminated by other materials to an extent which (a) increases the risks associated with the wastes sufficiently to render it appropriate for submission to the procedure of prior written notification and consent, when taking into account the hazardous characteristics listed in Annex III to Directive 91/689/EEC; or (b) prevents the recovery of the waste in an environmentally sound manner." We do not need to refer to Directive 91/689 because it is not suggested that hazardous characteristics are a feature of this case. 16 It is common ground that waste which began its waste life as household waste (Y46) may, by appropriate sorting, become waste paper within the meaning of B3020. 17 In Beside BV & Besselsen v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer [1999] Env LR 328, the European Court of Justice stated (paragraph 29): "29 It must be emphasised that, for the purpose of classifying a batch of waste the origin of the waste is not in itself decisive for the purpose of its classification in one of the lists, green, amber or red, set out respectively in Annexes II, III and IV to the Regulation. 30 Thus, waste of municipal or household origin which has been collected separately and falls within sub-heading '20 01 03 small plastics' of the European Waste Catalogue may, on the basis of its composition, come under the heading 'GH Solid plastic wastes' in the green list of waste. 31 On the other hand, such waste mixed with other waste on the green list or the amber list -and therefore not collected separately - would, if appropriate, come under sub-heading '20 03 01 mixed municipal waste' of the European Waste Catalogue and would therefore, having regard to the extent to which it was contaminated, belong to category 'AD 160 municipal/household waste' on the amber list in the Regulation. 32 Therefore, 'municipal/household waste' does not cease to be 'amber waste' and therefore does not come within the green list unless it has been collected separately or properly sorted. 33 As is clear from the introduction to the green list of waste, waste may not, regardless of whether or not it is included on that list, be moved as green waste if it is contaminated by other materials to an extent which (a) increases the risks associated with the waste sufficiently to render it appropriate for inclusion in the amber or red lists, or (b) prevents the recovery of the waste in an environmentally sound manner. 34 The answer to the first question must therefore be that the expression 'municipal household waste' referred to under AD 160 in the amber list in Annex III to the Regulation, as amended by Decision 94/721, includes both waste which for the most part consists of waste mentioned on the green list in Annex II to the Regulation, mixed with other categories of waste appearing on that list, and waste mentioned on the green list mixed with a small quantity of materials not referred to on that list." 18 The Regulations may be different, but it is accepted by the respondent that the principles there stated apply. 19 Reference has been made to a press release of the Environment Agency, dated 27 October 2008, under the heading "Environment Agency clarifies stance on export paper contamination". It states: "There is no '0% contamination' requirement for recovered paper for export the Environment Agency has confirmed." Reference is made to a conference at which the Environment Agency's spokesman was speaking, and said: "'We are not going to specify a percentage in any guidance we produce. We want to concentrate our efforts on poor or superficial sorting.'" 20 In the present context, it is accepted that the waste is either Y46 household waste or B3020 waste paper. If the case proceeds to trial, it will be for the prosecution to prove to the criminal standard that it is Y46 household waste. 21 Mr Harris, for the appellants, says that he is not alleging that the 2007 Regulations are contrary to European law or are otherwise unlawful. The defendants' case, as put in written submissions, is that the absence of guidance or the setting of a standard to enable a judgment to be made upon the basis of the operator means that proceedings amount to an abuse of process. The [Environment] Agency has realised that a minimal contamination is acceptable. It is submitted that in the absence of any specification from the Environment Agency or other authoritative UK source as to what constitutes 'minimal' contamination, those engaged in the export of paper and other recovered commodities are unable to know before they embark upon a course of conduct whether their activities are likely to be treated as criminal or not. The exporter of paper is faced with an impossible task, it is submitted, in trying to ascertain whether any particular level of contaminants in the paper is likely to attract regulatory attention. He cannot find out what acts or omissions make him criminally liable. In the absence of any standard or test, there are likely to be wholly arbitrary and subjective decisions by different juries on different occasions. 22 Mr Harris refers to the background to the Regulation. Article 10 of the Convention under the heading "International Co-operation" requires parties (at paragraph 2) - "2 ..... (a) Upon request, [to] make available information, whether on a bilateral or multilateral basis, with a view to promoting the environmentally sound management of hazardous wastes and other wastes, including harmonisation of technical standards and practices for the adequate management of hazardous wastes and other wastes." At sub-paragraph (e), under the same Article 10 (2), parties are required to: "(e) Co-operate in developing appropriate technical guidelines and/or codes of practice." 23 The 2006 Regulation provides at Article 49, under the heading "Protection of the Environment" that for the purposes of seeking guidance on environmentally sound management, the guidelines listed in Annex VIII may be considered. 24 These are international obligations of the United Kingdom. But, submits Mr Harris, they demonstrate that the international instruments contemplate that guidance will be given by Member States in applying the Convention. He referred to Annex VIII of the 2006 Regulation which lists guidelines on environmentally sound management pursuant to Article 49, and is listed is a series of technical and other guidelines. 25 Developing his submissions orally, Mr Harris submits that it would be possible, either by regulations or by guidance, to stipulate an appropriate standard, whether by weight or by whatever other standard was chosen. This was a subject susceptible to detailed technical guidance. Putting the general submission, Mr Harris argues that the standard by which his conduct is to be judged must be known to the citizen. In the absence of that, in this case, there can be no direction which a judge can properly give to a jury. Wherever the fault lies, there is no standard by which the judge can sum up for the fact-finding tribunal. It is the duty of the law to set the standard by which the jury decide the facts. A detailed legal standard is required. In this case the standard has been plucked from the air. That amounts to an abuse of process. An operator does not know whether he is breaking the law. 26 Mr Harris refers to domestic and European authority. In Fothergill v Monarch Airlines [1981] AC 251 , Lord Diplock stated (at 279): "Elementary justice or, to use the concept often cited by the European court, the need for legal certainty, demands that the rules by which the ..... citizen is to be bound should be ascertainable by him (or, more realistically by a competent lawyer advising him) by reference to identifiable sources that are publicly accessible." He submits that in the present context a lawyer will have no more idea than a lay person. 27 In Belgium v Banque Indosuez and Others and the European Community [1998] 1 CMLR 653 , the Advocate-General stated in a passage subsequently adopted by the court: "27 The principle of legal certainty is a fundamental principle of Community law which requires in particular that rules imposing charges on a taxpayer be clear and precise so that he may be able to ascertain unequivocally what his rights and obligations are and take steps accordingly ( Case C-143/93 ..... )." 28 Mr Harris submits that the same principles are found in Article 7 of the European Convention on Human Rights, of which sub-paragraph (1) provides: "(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed." In that context, he refers to SW and CR v United Kingdom (1996) 21 EHRR 363 , where Article 7 is considered: " ..... It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment." At 36/34 it is added: "However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the United Kingdom, as in the other Convention States, the progressive development of the criminal law through judicial law-making is a well entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen." 29 There is comfort for the respondent in that approach. Mr Harris submits that it is not an appropriate approach for a system of jury trial in the present context. 30 Mr Harris referred to the majority judgment of the European Court of Human Rights in Sunday Times v United Kingdom (1979- 1980) 2 EHRR 245 , paragraph 49: "49 In the court's opinion the following are two of the requirements that flow from the expression 'prescribed by law'. First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice." 31 Mr Harris converts those statements of principle into the requirements of the law of England and Wales in relation to abuse of process by reference to R v Beckford [1996] 1 Cr App R 94, a decision of this court (Lord Justice Neill presiding). He referred to the first sentence of the headnote: " ..... the court had power to stay proceedings in cases where it concluded that the defendant could not receive a fair trail or where it would be unfair for the defendant to be tried. Each case had to be considered on its own facts." 32 Reference was made by Mr Mehta, for the respondent, to R v Ibrahim [2001] 2 Cr App R 23 , where it was recognised that a stay will not be granted where the trial process is itself equipped to deal with the matters complained of. 33 Mr Harris submits that, having regard to the guidance in the authorities and to the principle involved, the defendants cannot have a fair trial in this case in the absence of a sufficiently clear and precise statement of the standard with which operators in this field are expected to comply and to which they are expected to conform. 34 Mr Mehta first refers to the difficulties of stating an appropriate standard of general application in this field. He refers to the items on the green list of non-prohibitive substances - for example, B1100 where there is a reference to the percentage of zinc greater than 90 per cent, "(›90% Zn)" - which is required for the item to come within the category B1100. In B2040 a percentage of above 20 per cent is specified in considering the iron content required in that category. In B2110 - bauxite residue - it is stated that pH saturated to less than 11.5. Thus, he submits, the drafters of the Convention and the Regulations have not forgotten the appropriateness of percentages in some situations and, where percentages can appropriately be applied, they have been considered. Parliament too must be aware of the possibility. 35 Household waste, Mr Mehta submits, presents a particular problem. He submits that there is no abuse of process in this case. It is a question of fact for the jury whether a particular consignment is household waste. They can take into account, first, that it starts as household waste. It is collected from households. They can look at photographs of the consignment. They can hear other evidence about it. They can then consider whether the sorting which has occurred is sufficient to bring the waste out of that category. The burden is on the prosecution to establish that it is still household waste, applying the criminal standard. 36 By way of example, Mr Mehta refers to the present consignment which is relevant if the case proceeds. Rotting meat was found. There could be circumstances where one had a two per cent contamination, for example by way of cellophane or crisp packets, where that could properly be treated as de minimis and a jury could acquit the exporter on that consignment. However if the two per cent was rotting meat, that would be a different situation. 37 Mr Mehta submits that the court is expected to look at the overall picture. There is clearly difficulty, he submits, in specifying by weight or percentage what degree of contamination, if any, can be permitted. He accepts the concept of minimal contamination as not preventing the waste from being regarded as waste paper, but whether any contamination is minimal depends in part on the nature of the contamination. The quality of contamination as well as the quantum of it is a material factor. He supports the approach of the Environment Agency when not attempting, in this context, to lay down detailed standards. Even if it did, those standards would not of course be binding upon a court though they would meet the point that the appropriate operators in this field would have a clearer picture of what conduct might give rise to a prosecution. 38 In the course of the hearing there was discussion about the problem arising as to whether, if at all, to sub-divide a consignment. There could be no contamination in some of the twenty-nine bales but significant contamination in others. On the basis of a single charge (as the case is now put), the jury's task would be more difficult. 39 In our judgment there is scope by way of trial management, which would have appropriate regard to the interests of the defendants, to deal with that question, but we do not minimise the difficulties involved. They are, however, difficulties which would apply whatever standard was sought to be imposed and whether the case is to be tried by a judge alone or by a judge with a jury. In our judgment that is essentially an issue for case management and the trial process. 40 Mr Mehta stresses the importance of the reason for the waste regulations, the aims and implementation of the European Union legislation and of the domestic legislation. This originates with the Basel Convention which, in its Preamble, expresses the concerns: "Aware of the risk of damage to human health and the environment caused by hazardous wastes and other wastes and the transboundary movement thereof. ..... Aware also of the growing international concern about the need for stringent control of transboundary movement of hazardous wastes and other wastes, and of the need as far as possible to reduce such movement to a minimum." He referred to Recital 1 to the European Union Regulation: "(1) The main and predominant objective and component of this Regulation is the protection of the environment, its effects on international trade being only incidental." Later, at Recital 28 it states: "(28) ..... In particular, it is necessary to clarify the list of waste to which that prohibition applies and to ensure that it also includes the waste listed in Annex II to the Basel Convention, namely waste collected from households and residues from the incineration of household waste." 41 Recital 2 of the Waste Framework Directive 2006 [states]: "(2) The essential objective of all provisions relating to waste management should be the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste." An operator in this field, he submits, must apply the highest standards or he takes the risk of falling foul of the standards as implemented in the law of England and Wales. Conclusions 42 We accept that a very high standard is required of operators in this field. We are mindful of the difficulties faced by commercial operators conducting what is an important and valuable business, not only for them but in the public interest. We are mindful of the extreme difficulty, to which reference has been made, in setting a helpful test of general application when considering and deciding what comes within the definition of household waste. We are not unmindful of the difficulties involved in juries deciding this issue. Juries are familiar with having to decide issues of fact, what evidence to accept. They are accustomed to considering the state of mind of witnesses and defendants, whether they were acting dishonestly, whether there was consent. A decision as to whether household waste has been converted into waste paper is a decision of a somewhat different kind from those they are normally called upon to make. 43 There are those who take the view that juries are not the most appropriate forum for trials in environmental cases such as this. We express no view about that, but we do not understate the difficult task of a jury in making a decision and the difficult task of a judge in summing up the case to them. 44 Having said that, we are quite unpersuaded that to proceed with a trial as to whether this particular consignment is proved to be household waste is an abuse of the process of the court. The judge will have regard to the 2006 Regulation and the 2007 Regulations when giving his directions to the jury. We would contemplate his raising the possibility of a breach being so small as to be minimal and not preventing waste from ceasing to be household waste and becoming waste paper under B3020. That will depend on the circumstances, including the nature and the quality, of the contamination and the amount of it. We are confident that a judge will be able to give sufficient directions to a jury to enable them to make the decision as to whether a particular consignment is properly described as household waste and for them to perform their task by applying that test to the facts. 45 We have referred to the possibility in the trial process of ventilating whether there should be more counts than one, and other issues. For us to say more would be inappropriate. We have no wish to interfere with or prejudice the trial process. 46 In our judgment it is within the capacity of a judge to deliver a proper summing-up to the jury and it is within the capacity of a jury to make a fair decision on it. The law is clear, that if waste to be exported is proved to be household waste then an offence is committed. 47 In saying what we have, of course, we do not rule out the possibility of co-operation between the Environment Agency and operators in this field to the mutual benefit of the public interest and the interest of the operators. In the end it is for the courts to apply the law. But we see scope for co-operation which will assist operators in knowing what they can reasonably expect to do without enforcement action being taken against them. 48 For the reasons we have given, this appeal is dismissed. 49 Are there any applications? 50 MR MEHTA : No. Suffice to say that my friend and I are both of the view that so far as any costs in the case are concerned, they can be dealt with in the trial process. 51 LORD JUSTICE PILL : Very well, yes. No directions as to when the trial [is]. That will all be dealt with at Kingston. 52 MR MEHTA : There is a hearing listed for early next year at which the trial date will be set. 53 LORD JUSTICE PILL : You have not changed your views about the absence of any need to impose reporting restrictions. 54 MR HARRIS : Confirmed in the view that they are not necessary, my Lord. 55 LORD JUSTICE PILL : No reporting restrictions.
{"ConvCourtName": ["Kingston Crown Court"], "ConvictPleaDate": ["10 October 2011"], "ConvictOffence": ["transported waste specified in Article 36 (1) (b) of the European Waste Regulation 1013/2006"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Kingston Crown Court"], "Sentence": ["data not available"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["data not available"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["evidence that they were found to contain not only waste paper and cardboard but items of household waste"], "DefEvidTypeTrial": ["defendants claim that it was no longer household waste within the meaning of Y46"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Ideal Waste Paper Company Ltd and others (\"the appellants\""], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal against a ruling"], "AppealGround": ["The judge declined to stay proceedings against Ideal Waste Paper Company Ltd and others (\"the appellants\") as an abuse of process of the court or to exclude disputed evidence"], "SentGuideWhich": ["Section 78 of the Police and Criminal Evidence Act 1984.", "Article 7 of the European Convention on Human Rights", "Article 36 (1) (b) of the European Waste Regulation 1013/2006"], "AppealOutcome": ["appeal is dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The law is clear, that if waste to be exported is proved to be household waste then an offence is committed."]}
{"ConvCourtName": ["Kingston Crown Court"], "ConvictPleaDate": ["2011-10-10"], "ConvictOffence": ["transported waste specified in Article 36 (1) (b) of the European Waste Regulation 1013/2006"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Kingston Crown Court"], "Sentence": ["data not available"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["data not available"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Authority evidence"], "DefEvidTypeTrial": ["Offender believes actions justified"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["Don't know"], "AppealAgainst": ["appeal against a ruling"], "AppealGround": ["The judge declined to stay proceedings against Ideal Waste Paper Company Ltd and others (\"the appellants\") as an abuse of process of the court or to exclude disputed evidence"], "SentGuideWhich": ["Article 36 (1) (b) of the European Waste Regulation 1013/2006", "Article 7 of the European Convention on Human Rights", "Section 78 of the Police and Criminal Evidence Act 1984."], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["Trial/sentencing judge approach and decision cannot be faulted"]}
424
Neutral Citation Number: [2021] EWCA Crim 1720 Case No: 202002937 B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LEICESTER HIS HONOUR JUDGE T. J. SPENCER QC T20187376 Royal Courts of Justice Strand, London, WC2A 2LL Date: 19.11.2021 Before: LADY JUSTICE THIRLWALL DBE MR JUSTICE ANDREW BAKER and MRS JUSTICE THORNTON - - - - - - - - - - - - - - - - - - - - - Between: AAM Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Matthew Scott appearing on behalf of the Applicant/Appellant Phil M Gibbs appearing on behalf of the Respondent Hearing dates: 27.05.2021 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties’ representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be Friday, 19 November 2021 at 10:30am. LADY JUSTICE THIRLWALL DBE: 1. This is the judgment of the court to which we have all contributed. The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offences in this case. Nothing relating to the victim of the offences 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 any of the offences. This prohibition applies unless waived or lifted in accordance with s.3 of the Act. To protect the victim’s identity the appellant’s name has been anonymised. 2. On 12th March 2020 in the Crown Court at Leicester the appellant was convicted after a trial of two counts of rape. This is his appeal against conviction which he brings with the leave of the single judge. 3. The victim of both offences was his wife. They separated in December 2014 and are now divorced. The offences took place during the latter stages of the marriage, between February 2010 and December 2014 when the appellant left the family home. The two children of the marriage remained with their mother. 4. Count 2 was a single rape. For that offence the appellant was sentenced to 7 years imprisonment. Count 3 concerned 20 occasions of rape during the period on the indictment. The sentence was 8 years imprisonment to run concurrently with the sentence on count 2. 5. The ground of appeal on which leave was given is that the judge omitted to give a bad character direction in respect of evidence of reprehensible behaviour that was placed before the jury by agreement. Leave was refused on other grounds and Mr Scott, who did not appear at trial, made no application to renew. 6. Mr Gibbs, who prosecuted at trial and on the appeal, accepts that the judge did not give any particular direction about the evidence of reprehensible behaviour and now says he should have done so. He did not make that submission at trial nor did counsel for the defence. He submits that the convictions are nonetheless safe. Background 7. The appellant originally faced an indictment of three counts covering conduct between February 2010 when the complainant was diagnosed with Multiple Sclerosis and December 2014 when the appellant left the family home for good. Count 1 was an offence of controlling and coercive behaviour over the same period contrary to section 76 of the Serous Crime Act 2015. A jury was sworn in and the case opened before it was appreciated that the Act was not in force at the time of the conduct complained of. The jury was discharged and count 1 was removed from the indictment. A fresh jury was sworn, and the trial took place on counts 2 and 3 only. All the evidence that was to have been called in support of count 1 was, by agreement, called in the trial of counts 2 and 3. We shall refer to this as evidence of reprehensible behaviour. Evidence at trial 8. At the heart of the case was detailed evidence from the complainant on counts 2 and 3. Whilst there had been a number of incidents earlier in the marriage where the appellant had overborne her will during sexual intercourse, she had felt able to and had objected. Whilst the appellant did not accept that he had acted against her will in those early days he did apologise at the time for the way he had behaved. After the diagnosis of multiple sclerosis, the complainant had minimal feeling below the waist for a prolonged period. It was her account that the appellant repeatedly raped her as she was unable to push him off. He was aggressive and on occasions caused injuries to her. In addition, he had a number of sexual preferences which she found abhorrent. 9. There was evidence of recent complaint from a long standing friend of the complainant who gave evidence of a number of occasions when the complainant told her she had been raped in the days before their conversation. It was put to the friend that most complaints were made after the marriage was over. The friend stood by her evidence that the complainant told her at the time. The complainant’s sister also gave some evidence of recent complaint. 10. Much of the sexual conduct alleged was admitted by the appellant. He was adamant that the complainant had been a willing participant in all of it. As to the allegations of rape, he said all sexual intercourse had been consensual. Save for two occasions before the children were born when they had vigorous intercourse, the complainant had never sustained injury, he said. 11. The central issue on both counts was consent and reasonable belief in consent. 12. The appellant called his current partner to say that he had never sought to have sexual intercourse without her consent, even though she had recently had major surgery and a prolonged period of abstinence. Evidence of reprehensible behaviour 13. The evidence of reprehensible behaviour fell into several broad categories including: i) Financial control and meanness ii) undermining and humiliating the complainant in front of others iii) trying to prevent her from seeing her friends iv) uncontrolled bad temper/anger with the threat of violence and some occasions of violence v) lack of care for, bullying and hostility towards her when she was suffering from multiple sclerosis. 14. Evidence about the behaviour came from the complainant, her mother, sister, father and the friend to whom we referred above, known as H. The complainant said that his behaviour was so aggressive that she and the two children of the marriage would be in a constant state of fear. They kept their heads down whenever the appellant was in the house. He kept her short of money so that she felt trapped in the relationship. Her evidence was robustly challenged in cross examination. 15. It was the appellant’s case in evidence that the allegations were either untrue or exaggerated. He accepted he could get “shouty” but did not accept that he was aggressive. He had on one occasion hit the complainant in the face by accident when, in the middle of an argument he had turned to face her, she was closer than he thought, and he struck her in the face. He denied all other violence and threats of violence. 16. As to financial meanness, it was agreed that when the complainant was diagnosed with multiple sclerosis the appellant’s immediate thought was to obtain a pay-out on critical illness insurance. The complainant wanted the money to be protected for the children. It was her account that the appellant did not agree with that. He wanted to use the money to pay off the mortgage, he said. In the event, arrangements were made for the children to benefit from the money in due course. 17. The appellant did not accept that he was in any way controlling of his wife and family. 18. Considerable emphasis was placed by the Crown upon an incident which marked the end of the marriage in December 2014. There had been an argument. The appellant lost his temper with their daughter, F, who was then aged 7. He dragged her upstairs and threw her into her bedroom. The complainant and the daughter were very frightened by this. The complainant told the appellant to leave the family home, which he did. He did not return. He said at trial that the complainant had asked him to be more involved in disciplining F and that he had been heavy handed. He did not accept that he had deliberately hit F. 19. It was the appellant’s case that the allegations of other reprehensible behaviour had been fabricated or exaggerated so that the complainant could explain why she did not complain about the rapes until a court order had been made in the divorce proceedings finalising arrangements for his contact with the children in 2017. It was his case that it was the court order that prompted the complainant to make the allegations of rape, which, he said, were also fabricated. Diaries 20. The complainant kept a paper diary for years. The appellant read it on occasion during the marriage. When cross examined about the absence of any reference to sexual misconduct by the appellant she said, “I made a diary all the way through the abusive things that happened and who witnessed it, of the physical abuse”. She said that she had “left the sexual bit out because it was so dirty. The things he did were really degrading”. 21. The appellant told the jury that he too had kept a paper diary for many years. He had recorded all the details of his sex life with his wife, in case it should ever prove necessary to refer to it. He had, he told them, mislaid the paper diary before the breakdown of the marriage, in 2014, and had reconstructed it electronically in 2017, having previously summarised it before losing it. It was not easy to follow his reasoning in respect of this and he did not produce a diary to the jury. It was the Crown’s case that in keeping the diary he was preparing for the day when his wife would eventually complain of rape. Admissibility of evidence of reprehensible behaviour 22. Subject to certain safeguards under the provisions of the Criminal Justice Act 2003 (CJA) and section 76 of the Police and Criminal Evidence Act 1984 (PACE), evidence of reprehensible behaviour/bad character is admissible if it is probative of the offence charged. 23. Mr Scott accepts that the evidence of reprehensible behaviour was all admissible as having to do with the facts of the offences, as described in section 98(a) of the CJA (i.e. not evidence of bad character). It would also have been admissible, he submits, pursuant to section 101(1)(a), evidence of bad character admitted as a result of an agreement between the parties. Mr Gibbs agrees with both of these submissions. 24. Evidence of controlling and/or coercive behaviour, if accepted, can support allegations of rape, particularly on the issue of consent and reasonable belief in consent. It can be good evidence of a tendency to override the wishes and feelings of the controlled person. It is also well understood that rape can be part of a pattern of control and coercion. 25. We are satisfied that the evidence was admissible under section 98(a) as having to do with the facts of the offences. The fact that all agreed that the evidence should go before the jury shows that it was understood by all that it was all relevant and probative of the issues before the jury. Whether, if that were wrong, it might have been admissible under the bad character provisions in the CJA matters not. 26. The issues to which all the evidence of reprehensible behaviour went were consent and whether the appellant reasonably believed the complainant was consenting. The Appeal 27. Mr Scott referred us to the judgment of this court given by Simon LJ in R v RJ [2017] EWCA Crim 1943 at para 44 in which he referred to a passage in Blackstone Criminal Practice 2018 which reads; “ As the editors of Blackstone Criminal Practice 2018 at F13.11 note the dividing line between cases involving bad character evidence and cases falling within S98 is fine: and this is a reason: “…for the Court to have in mind the safeguards attached to the former when considering the latter, and to consider appropriate directions to the jury on the use to which it should be put and, if appropriate, the weight they should attach to that evidence.”” 28. Mr Scott also relied on the decision of this court in R v MA [2019] EWCA Crim 178 a case where some evidence of violent and controlling behaviour was held properly to have been admissible under section 98 and other evidence was properly admissible under section 101 (in various subcategories). The trial judge gave a specific direction in respect of incidents of violence alleged by the complainant against the appellant in that case. He explained to them that they had heard about the violence as it was the prosecution’s case that the appellant controlled the complainant and used physical violence as part of that control. He reminded them that the case was about allegations of rape, not of physical violence, and that if they were sure the acts of violence occurred but were unsure of any of the allegations of rape they must acquit the defendant of the counts of rape. 29. This court accepted the submission that the direction was not sufficient. Irwin LJ said what was required was “a carefully crafted direction that dealt with the problems arising from the evidence, the risk of prejudice, and assisted the jury as to how to apply this evidence in reaching their conclusions.” 30. The court considered that this would be so of the case before them even were all the evidence properly to have been admitted under section 98. The suggested approach was [47] “something like the following: “[48] First that the judge should identify to the jury in a simple fashion, but clearly, what evidence they were to consider in the way he was about to indicate. [49] Secondly, to repeat the obvious point that, unless they were sure of this evidence, they should discard it. If they were unsure of part of it, they should disregard it and discard it. [50] Thirdly, to tell them that this category of evidence, however admitted, could not amount to direct proof of the guilt of the applicant. [51] Fourthly, if they were sure of the evidence, or the extent to which they were sure of it, what could it show? Here a simple direction that it bore on W’s relationship to her husband and his attitude to her would have sufficed. 31. At [52] the court dealt with specific details in that case and at [53] said that: “They then should have been told in straightforward terms, that if they accepted all this evidence, it could show it was more likely that the husband would override the lack of consent of the wife.” 32. Mr Scott, who appeared for the appellant in MA , submits that the judge in this case should have taken the approach set out in MA and failed to do so. Summing Up 33. There was no discussion before the summing up about whether specific directions over and above those conventionally given in respect of evidence of fact were necessary in respect of the evidence of reprehensible behaviour. 34. The judge gave the jury summary written directions on the law which he developed in the course of his summing up. When dealing with the respective roles of judge and jury he said “It means that you decide who said what; you decide who did what; you decide who consented to what; you decide who knew what…It means that you decide what was going on here; in specific terms, what went on in this marriage and the sexual relationship between [the appellant and the complainant], in particular during the period February 2010 to December 2014” This was followed by a direction on the burden and standard of proof and the conventional directions about setting aside emotion when considering the evidence. He reminded the jury that they did not need to decide every issue that had arisen in the case. He said, “You must determine those issues which enable you to return verdicts which are true to your oaths or affirmations.” 35. He gave impeccable guidance in respect of the behaviour of complainants in sexual offence cases. 36. He reminded the jury that they were not called on to make a moral judgment on sexual preferences. What was needed was a cool assessment of the evidence and application of the law. 37. He set out clearly and accurately the ingredients of the offence of rape. He identified that the issues were whether the complainant had consented and, if not, whether the appellant reasonably believed that she had. He set out what the prosecution needed to prove in respect of reasonable belief. 38. In the context of a very detailed and helpful direction on reasonable belief the judge told the jury to take into account “all the circumstances of this case…. … that includes but isn’t necessarily limited to, the history of their sexual relations, her illness and its effect on both her and him... There may be other things as well that you want to take into account; and if you do, do. Ultimately you decide whether there was, or may have been, a genuine belief and whether that belief was reasonable.” He said that he would point out the areas of evidence which “illustrate issues which seem to me to be either important or fundamental.” He reminded the jury that it was for them to decide what was important, not him. 39. He reviewed in detail the complainant’s evidence on the allegations of rape which had been given in chief via an edited ABE interview. She said that she had put up with the appellant’s desires because if she hadn’t there would be repercussions – financial or humiliation in front of friends. The cross examination was reviewed in detail. 40. The judge dealt with the dispute about the critical illness pay out and having summarised it he said “there is an issue for you.. That’s an issue that’s not going to decide the case for you, ladies and gentlemen, but it may affect your view of the credibility of one or the other of them, or even both. So, you’ll want to think about this aspect of the case.” 41. The judge reminded the jury that the complainant had said she felt trapped in her marriage, but she had accepted when cross examined that she had asked the appellant to leave several times, and he had done so. She also pointed out that he always came back, until December 2014, after which, despite his wish to return, she refused, and he did not return. 42. The judge dealt in detail with the incident with F. He made it plain that this would not help the jury to decide whether or not the appellant had committed rape. He said that it was a part of the background and that their views of it would help them decide on the relative credibility of the appellant and complainant. 43. The judge also dealt with the evidence of the other witnesses, including of H and the complainant’s sister in respect of recent complaint. We do not need to rehearse this nor the evidence of the appellant which the judge reviewed in detail. We have already referred to the key parts of his evidence. 44. The judge gave both limbs of the good character direction. Discussion 45. It is not disputed that the judge did not follow the approach set out in R v MA. Mr Scott submits that the failure to follow the approach in MA renders the conviction unsafe. Mr Gibbs conceded at the hearing of the appeal that particular directions about the evidence of reprehensible behaviour such as described in MA should have been given but submitted that the absence of the directions does not undermine the safety of the conviction because all the evidence of reprehensible behaviour was before the jury by agreement, it was the appellant’s case that the allegations of reprehensible behaviour were fabricated by the complainant, all the evidence was very robustly tested during a fair trial and was fairly summarised by the judge in summing up. The jury heard all the evidence and were best placed to decide. 46. Mr Scott submits that the directions were necessary not least because the prosecution case relied heavily on the evidence of reprehensible behaviour. He refers to a number of passages in prosecuting counsel’s closing speech. It is sufficient to refer to prosecuting counsel’s description of the appellant: “an egotistical, self-interested and selfish person, and he was cruel; he humiliated [his wife]”. Later in his speech when referring to the appellant’s attitude to money he described it as evidence of his selfishness. Rape being the ultimate act of selfishness, he said, “taking what you want and feeling entitled”. Leaving aside counsel’s forensic flourishes, which were unnecessary, all this came to was prosecuting counsel pointing out that on one view of the evidence the appellant routinely overrode his wife’s wishes. That was the reason he had sought to put it before the jury. Whether they accepted the evidence and considered whether it helped on the issues in the case was a matter for them as the judge made clear. 47. The evidence was before the court by agreement. It is not nor could it be suggested that this was an error of judgment by counsel for the defence. It is plain that both prosecution and defence saw the evidence as all of a piece, as did the judge. They were right to do so. It all went to the issues in the case. 48. That the parties agreed that the evidence should go before the jury does not remove from the judge the responsibility for giving appropriate directions and to sum up the case fairly, but it does not follow that a trial judge must give directions that are unnecessary. The purpose of the directions suggested in MA was to ensure that the jury did not use the particular evidence in an improper way, which would mean either (a) using disputed evidence of reprehensible behaviour without first accepting that evidence, i.e. being sure of it, (b) treating evidence of reprehensible behaviour as supporting a disputed part of the prosecution case it could not reasonably be said to support, or (c) convicting the defendant on a charge the jury were considering wholly or mainly on the basis of the evidence of reprehensible behaviour. 49. In the light of the decision in MA it would have been better had the judge given a short specific direction warning against any improper approach to the evidence of reprehensible behaviour, but we are satisfied that there was no risk of this happening here. The judge’s conventional directions were sufficient, taken together with the general direction as to the evidence to be considered in respect of reasonable belief in consent to which we refer above, and his review of the evidence, to ensure that the jury would not rely against the appellant on reprehensible behaviour that they were not sure about on the evidence, and the evidence in question was all capable, if accepted, of supporting the prosecution case on the only real issues, namely consent and reasonable belief in consent. It was also clear enough, on the judge’s summing up as a whole, that the allegations of reprehensible behaviour outside the incidents of alleged rape themselves were one element only of the prosecution case and not something upon the basis of which, or primarily on the basis of which, it could be proper to convict. 50. The judge’s common sense observations in respect of the ill health pay out and the incident with F were helpful to the defendant. Plainly a decision about either of those issues could not, of itself, help them decide the rape charges and the judge directed them only that it could assist with assessing their respective credibility. In fact, had the jury found that in either case the appellant had done what was alleged against him, they would have been entitled to put that into the balance of evidence supporting the prosecution case that he routinely overrode his wife’s wishes. Its probative value went beyond general credibility. 51. We acknowledge that there are cases where detailed directions are necessary about the use to which particular evidence of reprehensible behaviour may be put. This is not such a case. The evidence was all directed to the main issues in the case. There was no more need to identify each incident of alleged reprehensible behaviour and give a direction about the use to which it could or could not be put than there was, for example, to give such a direction about each individual allegation of rape within count 3. It was not necessary to tell the jury in respect of each allegation “this is not direct proof of rape”. They did not need to be told repeatedly that it went to the issue of consent or reasonable belief in consent. This was clear from the summing up. We are satisfied that there was no risk that the jury might have been unsure of or disbelieved the complainant on the facts of the rape counts and yet convicted because they believed her and other witnesses on the facts of some or all of the reprehensible behaviour. Such an analysis is unreal. Conclusion 52. The issues to be determined were clear. The evidence against the appellant was very strong. It was tested appropriately in the course of an eight day trial in which the appellant gave evidence. The summing up was fair. We are satisfied that the convictions are safe. The appeal is dismissed.
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{"ConvCourtName": ["Crown Court At Leicester"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["rape", "12th March 2020"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["data not available"], "Sentence": ["8 years imprisonment to run concurrently", "7 years imprisonment"], "SentServe": ["Concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["data not available"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Relative"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Female"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Documentation", "Victim testimony"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against conviction"], "AppealGround": ["the judge omitted to give a bad character direction"], "SentGuideWhich": ["Sexual Offences (Amendment) Act 1992"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["evidence against the appellant was very strong"]}
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Neutral Citation Number: [2018] EWCA Crim 2895 No: 201080425 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 20 November 2018 B e f o r e : LORD JUSTICE HOLROYDE MS JUSTICE RUSSELL DBE HER HONOUR JUDGE WALDEN-SMITH (SITING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A v KAY STRUGNALL Mr J Polnay appeared on behalf of the Solicitor General Ms E Thornber appeared on behalf of the Offender Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. J U D G M E N T (Approved) 1. LORD JUSTICE HOLROYDE: On 13 August 2018, in the Crown Court at Norwich, Kay Strugnalll pleaded guilty to two offences of possession with intent to supply ofa class A controlled drug, namely diamorphine, commonly known as heroin. 2. On 17 September 2018, she was sentenced on each charge to a community order for 12 months with a drug rehabilitation requirement for six months and a rehabilitation activity requirement for 15 days. 3. Her Majesty's Solicitor General, on behalf of the Attorney General, believes the sentencing to have been unduly lenient. He therefore seeks leave, pursuant to section 36 of the Criminal Justice Act 1988 , to refer the matter to this court so that the sentencing may be reviewed. 4. We express at the outset our gratitude to Mr Polnay (for the Attorney General) and Ms Thornber (here, as below, for the offender) for their very helpful written and oral submissions. 5. Ms Strugnall is now approaching her 38 th birthday. She has a number of previous convictions, starting in 2000, when she was aged 20. These include two offences of possession of cannabis resin and three of possession of heroin. All of her previous offences have been dealt with in magistrates' courts and none has resulted in a prison sentence. It is relevant to record that she has twice failed to answer to her bail and has twice had to be brought before the court for breaches of community punishment orders. 6. Her most recent previous convictions were on 11 February 2014, when she was fined for possessing heroin and possessing cannabis resin. 7. On 7 July 2017, police executed a search warrant at a property of which, as we understand it, Ms Strugnall's partner, Mr Read, was the tenant and where she lived with him. The police found two parcels of heroin with a total weight of 29.78 grams. The wholesale value of that heroin was assessed at between £1,200 and £1,800, and street value at about £20,700. In addition there was £205 in cash, digital scales, plastic snap bags and a mobile phone from which were recovered messages related to drug supply. The prosecution summarised these finds by saying that the premises appeared to be the centre of operations of a small retail distribution outlet where the drugs were no doubt intended to be bagged up. 8. Both the occupants, Ms Strugnall and Mr Read, were arrested. In interview Ms Strugnall admitted that the heroin was hers. She falsely claimed that it was for her personal use. She was released on bail for the investigation to continue. We should mention that Mr Read in due course pleaded guilty to permitting his premises to be used for supplying heroin. 9. The police returned to the premises on 5 September 2017 and executed a further search warrant. No drugs were found but £485 in cash was recovered. Ms Strugnall was not co-operative. Eventually she surrendered a Kinder egg container, which she had concealed between her buttocks, in which were found three wraps of heroin with a combined weight of 3.05 grams. The wholesale value of that was estimated as £120. The street value, though not specifically stated, must have approached £300. 10. In interview, Ms Strugnall again claimed, again falsely, that this was heroin for her personal use. She was offered help in relation to her drug use but declined the offer because she did not think it would help. 11. Some months passed whilst the drugs were analysed and the mobile phone investigated. In due course Ms Strugnall was charged and sent for trial. Initially, as a result of a prosecution error, she was only charged with the first of the two offences which we have mentioned. She was sent for trial on that charge on 4 April 2018 and made her first appearance in the Crown Court on 1 May 2018, when she entered a not guilty plea. She was not represented by counsel that day because of Bar action but her solicitors had been on the record for almost a month by that time. Her case was adjourned for trial with a warned list fixing of 13 August 2018. 12. Before that date was reached, in mid June, the prosecution gave notice that they wished to amend the indictment by adding a second charge of possession with intent to supply relating to the drugs found on the second occasion. That amendment was made at a pre-trial review on 13 August, when Ms Strugnall pleaded guilty to both counts. 13. Sentencing was adjourned so that a pre-sentence report could be prepared. That report was completed on 12 September 2018 and was available to the judge at the sentencing hearing a few days later. 14. The author of the report noted that Ms Strugnall presented as defensive and at times reticent about the detail of her offences. She said that she had been using heroin since the age of 21. She had nonetheless been able to maintain full time employment for the last 12 years, apparently using heroin before going to work and upon her return at the end of the day. 15. She told the reporting officer that she had only supplied to a couple of friends and had only been rewarded by being able to pay for her own drug use. The probation officer noted that she was reluctant to elaborate upon this account, as might well be imagined when one considers the value of the drugs recovered. She accepted that her only financial debt was a credit card debt which she was able to service from her income from her employment, and she confirmed that she had not been acting under duress. She continued to say, despite her guilty plea, that on the occasion of her second arrest the drug which she was carrying had been for her personal use. The author of the report noted that she presented as extremely anxious now that she faced the prospect of immediate imprisonment and was clearly concerned about losing her employment. 16. The author of the report assessed Ms Strugnall as being faced with a choice of continuing to use drugs or committing to abstinence. Recognising the likelihood of immediate imprisonment, he said that, if the court took the view that a suspended sentence was appropriate, he felt able to recommend the imposition of a drug rehabilitation requirement "as a means under which her heroin use can finally be addressed". The author of the report continued as follows: "This is not to say that there are no reservations as to her attitudes to drug treatment; certainly it is apparent that Ms Strugnall seems to be quite defensive and suspicious of drug treatment (she expressed for instance grievance at how, in her opinion, the drug treatment provider had apparently made her partner ill by giving him the 'blocker' drug Subutex whilst he still had heroin in his system). Furthermore, Ms Strugnall presented as an individual who was not entirely prepared to interrogate the particular historical issues that might underpin her drug misuse, instead wishing to simply take a pragmatic, in-the-moment approach. I would suggest that drug treatment will not be a comfortable experience for Ms Strugnall. However, despite her anxieties, Ms Strugnall said that she would comply in full with a DRR and understand that she will need to make herself available for monthly reviews." 17. We have been provided with a full transcript of the sentencing hearing on 17 September 2018. The prosecution, in the course of opening the facts, submitted that the finding of £485 on the occasion of the second search was a significant indication of a continued selling of class A drugs. 18. After some reflection and discussion between counsel, it was common ground at the Bar that each of the offences fell within category 3 of the sentencing guideline, being cases of supplying direct to users, often referred to as street supply, with a significant role. The guideline therefore indicated a starting point of four and a half years' custody and a range of three and a half to seven years. 19. In mitigation, Ms Thornber indicated from the outset that her submissions were aimed at persuading the court to allow Ms Strugnall a chance to be able to address her addiction. The judge responded by observing that the pre-sentence report did not suggest that Ms Strugnall was enthusiastic in terms of compliance. Ms Thornber replied that Ms Strugnall was upset that the pre-sentence report was written in the terms it was, because she had been trying her best and would be very grateful for the opportunity to address her use of heroin. Through counsel, it was indicated that Ms Strugnall would give her entire effort to the drug rehabilitation requirement, if allowed to do so. Her employer was now aware of her drug use, and her employment nonetheless continued. 20. Ms Thornber then began to submit that the court might consider a suspended sentence with a drug rehabilitation requirement. The judge intervened to observe that the problem with that submission was that, even making every allowance in Ms Strugnall's favour, the seriousness of the offending was such that the length of the appropriate custodial sentence would exceed that which could be suspended. Ms Thornber accepted that point, but submitted that, notwithstanding the guidelines, the court could take the view that Ms Strugnall was in employment and had never had a drug rehabilitation requirement, although she had been addicted since the age of 21. 21. With no further submission from Ms Thornber, the judge explained that a failure to co-operate with a community order would mean that Ms Strugnall could in the future be sentenced to a lengthy period of imprisonment and she expressed the hope that Ms Strugnall would understand that. The judge then continued with these words: "I accept, functioning drug addict, able to hold down employment, has a home and there's a lot which she loses by going into custody. But the facts of this, and the ... flamboyant re-offending on bail hardly endears her to any tribunal, and if she is to be sentenced to custody then it is a whole lot more than what might have otherwise been capable of being suspended. So, I am inclined, just about, as long as she understands and it's explained to her, to make a community order." The judge went on to refer to the aggravating feature of the previous convictions but repeated that she was "just about persuaded" to avoid the imprisonment. 22. The judge then heard briefly from counsel for Mr Read and proceeded to make brief sentencing remarks in which she pointed out to Ms Strugnall that the further offence, which she described as seeming "to cock a snook at the whole criminal justice system whilst on bail" would in the ordinary way, even allowing for guilty pleas, result in a sentence of "coming up to five years' imprisonment". The judge nonetheless indicated that she would make a community order with a drug rehabilitation requirement. Ms Strugnall expressed her willingness to co-operate with such an order. Further discussion then followed, because the judge had not dealt with the length of the community order nor with the suggested further requirement of a rehabilitation activity requirement. 23. To complete the chronology of relevant matters, we should move ahead in time and refer to a report prepared for the assistance of this court on 30 October 2018 by the responsible officer of the relevant community rehabilitation company which supervises the court's order. This report indicates that Ms Strugnall had attended all five probation appointments which had been set and that, when she attended, she had engaged well within the meetings and appeared to be open and honest in discussions. However, she had not initially responded to messages telling her to arrange appointments to start her drug rehabilitation requirement. She had not done anything to start that requirement until she was brought before the court on 18 October for the first review hearing. Since that time, the report indicates, she had twice attended for testing. On both 22 October and 29 October, the testing had proved positive, not only for heroin but also for methadone. As the author of the report observed, Ms Strugnall is not prescribed methadone. 24. The reporting officer had discussed with her the possibility of going on to a methadone prescription. The report says: "We discussed the benefits and that it will help her reduce and eventually stop if it is monitored. However, she was reluctant at first, but said that she would consider it. I explained that if she kept to the methadone then there would be no positive heroin on her tests which is a positive step to recovery. She wants to think about it. I surmise from this that she is not ready to stop using. However, we seem to have achieved something today and I may be able to get her to have a titration appointment." The report added that Ms Strugnall appeared anxious about this forthcoming hearing. 25. With that necessarily rather lengthy review of the circumstances of the case, we turn to the submissions. 26. For Her Majesty's Attorney General, Mr Polnay draws attention to the provisions of section 125 of the Coroners and Justice Act 2009 and section 174 of the Criminal Justice Act 2003 . The former provision requires that every court must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender's case "unless the court is satisfied that it would be contrary to the interests of justice to do so". The latter provision requires the court to state in open court in ordinary language and in general terms the court's reasons for deciding on a sentence which has passed, to identify any relevant sentencing guidelines, to explain how the court discharged any duty imposed by section 125 of the 2009 Act and, where the court was satisfied it would be contrary to the interests of justice to follow the guidelines, to state why. 27. Mr Polnay goes on to refer to the terms of the Sentencing Council's definitive guideline in relation to the drugs offences and in particular to a paragraph to be found on page 12 of that document, which says: "Where the defendant is dependent on or has a propensity to misuse drugs and there is sufficient prospect of a success, a community order with a drug rehabilitation requirement under section 209 of the Criminal Justice Act 2003 can be a proper alternative to a short or moderate length custodial sentence." 28. Mr Polnay goes on to refer to the provisions in the drug guideline requiring the court first to consider whether the custody threshold had been passed in a particular case and then to go on to consider whether it is unavoidable that a custodial sentence be imposed. The courts must also consider aggravating and mitigating factors and, by section 143 of the Criminal Justice Act 2003 , must treat the fact that an offence was committed whilst an offender was on bail as an aggravating factor. 29. Mr Polnay submits that the sentencing here was unduly lenient. He submits that the judge's assessment that the case merited a sentence approaching five years’ imprisonment was correct. That being so, the imposition of a medium level community order simply did not reflect the seriousness of the offence, in particular the fact that the offending continued whilst on bail. 30. He submits that the judge made no express finding as to the categorisation of the offending or as to the appropriate amount of credit for a plea and did not state why she found that it was contrary to the interests of justice to apply the definitive guideline. He submits that this was not an exceptional cases such as to justify a departure from the sentencing guideline. 31. For Ms Strugnall, Ms Thornber realistically acknowledges the aggravating feature of the previous convictions and the aggravating feature of offending on them. She relies by way of mitigation on the fact that Ms Strugnall was supplying only the drug to which she was addicted. Ms Thornber also relies on the personal mitigation available to Ms Strugnall and on her guilty pleas. Ms Thornber reminds us that a sentence can only be described as unduly lenient when it falls outside the range which the sentencing judge could reasonably consider appropriate in all the circumstances of the case. Here she argues the sentencing was not unduly lenient because it was an exceptional case which called for exceptional treatment. Whilst the pre-sentence report might fairly be described as a mixed report, the author did in the end recommend a drug rehabilitation requirement. 32. The judge had carefully decided to sentence by way of a community order rather than a suspended sentence so as to encourage compliance with the court's order and so as not to tie the hands of any future court in the event of any breach. Ms Thornber points out that this court, in the case of Her Majesty's Attorney General v Forsythe-Wilding [2018] EWCA Crim 1180 declined to attempt any definition of the phrase in the guideline "short or moderate length", stating that the meaning of that phrase would vary according to the circumstances of the case. Here, Ms Thornber submits the offences carried a maximum sentence of life imprisonment. In that context, she argues a sentence of the length which the judge indicated could fairly be described as short or moderate. 33. She goes on to argue that the judge did comply with all statutory requirements and it was apparent from all that was said during the sentencing hearing, as well as the sentencing remarks, why the judge took the course she did. 34. As an alternative submission, Ms Thornber argues that, even if this court were persuaded the sentencing was unduly lenient, it should nonetheless exercise its discretion not to vary the sentence. In this regard, Ms Thornber understandably gives emphasis to the fact that Ms Strugnall remains in employment and can continue to contribute positively to society whilst continuing to receive treatment for her drug use. 35. We have considered these submissions anxiously. We are acutely conscious of the importance of this case for Ms Strugnall. The guidelines to which we have referred make it clear that, even where the custody threshold has been passed, a custodial sentence is not inevitable. There may be a good reason for a court to exercise leniency in a different case and, if the rehabilitation of the offender has a sufficient prospect of success, a community order with a drug rehabilitation requirement may be a proper alternative to a short or moderate custodial sentence. Nothing which we say in this judgment is intended to discourage judges from taking such a course in an appropriate case. 36. However, and with all respect to the learned judge below, we are in no doubt that this was not an appropriate case for the judge to take the course which she did. Our reasons are as follows. 37. First, it is important not to underestimate the seriousness of the offending. Although the judge did not expressly say so, we infer that she agreed with counsel that each of the two offences involved Ms Strugnall playing a significant role in a category 3 offence, for which, as we have noted, the guideline gives a starting point of four and a half years custody. Each offence was aggravated by the previous convictions of drug possession. The first offence involved a significant quantity of a class A drug. It can be viewed as potentially 270 £10 pounds deals of heroin. 38. The second offence involved a smaller quantity of the controlled drug that was committed whilst on bail for the first. That was a gravely aggravating feature which the judge identified but to which she appears to have given insufficient weight. 39. There was, in our view, only limited mitigation available to Ms Strugnall. As to her personal mitigation, she was in work and she was securely accommodated. She was very far from the type of offender, sadly a familiar figure before the criminal courts, who is an addict with little more to his life than selling drugs on the street in return for sufficient to maintain his own daily need. 40. In the circumstances of this case, the two offences would usually result in consecutive prison sentences amounting in total, even after credit for guilty pleas, to a significant period in custody. 41. Secondly, we regret to say that we cannot accept Ms Thornber's submission that the judge complied with her duties in respect of the sentencing guidelines. In particular, as both counsel recognised in their oral submissions to the court this morning, it is not clear from the transcript whether the judge regarded this as a case in which it would be contrary to the interests of justice to apply the guideline or whether she purported to sentence within the guideline. 42. The sentencing guidelines exist to promote consistency in sentencing. They do not remove judicial discretion, but they do ensure that all relevant considerations are addressed in the correct sequence. The court always retains power to depart from the guideline where the interests of justice require it, but in such a situation it should not be difficult for the sentencer to explain, as statute requires him or her to do, why that is so. The importance of such an explanation is obvious. It is the means by which the offender, the public and, if necessary, this court can know why the court has departed from the guidelines. It also assists the many other offenders who have been sentenced in accordance with the guidelines to understand why a distinction has been drawn. 43. Here, if the learned judge did take the view that it would be contrary to the interests of justice to follow the guideline, she did not explicitly say so, nor did she say why. For our part, we are unable to identify any features of the case which would make it contrary to the interests of justice to follow the guideline. Of course it is a heavy blow for anyone to receive a substantial custodial sentence, particularly someone who has never before served a custodial sentence, and even more so when the consequence is likely to be loss of employment and, it may be, loss of accommodation. Those are factors to be taken into account in an offender's favour but they are not, without more, reasons why it would be contrary to the interests of justice for the offender to suffer the usual consequences of the offending. That is particularly so when the court has to sentence for two offences, one of which was committed whilst on bail for the first. 44. Thirdly, if the judge regarded this as a case which, within the sentencing guideline, came into the category for which a drug rehabilitation requirement was a proper alternative to custody, she again, with respect, did not explicitly say so nor explain why. For our part, we are unable to regard this as such a case. 45. Although the phrase "short to moderate term" is not defined, we are not immediately persuaded by Ms Thornber that it extends to a total sentence of the length which would be appropriate here. But even if Ms Thornber could succeed on that point, we cannot see how, in the circumstances of this case, a drug rehabilitation requirement could be assessed as having such a prospect of success as to make it appropriate. The relevant features are these. Community punishment orders imposed in the past have been breached. True, those breaches were some years ago, but they do not make a promising start to the court's consideration. Next, when arrested, Ms Strugnall was uncooperative and made false claims that the drugs were only for her personal use. Next, she is, as we have said, far removed from the category of addict for whom life holds very little. Nonetheless, the author of the pre-sentence report found her reluctant to commit to treatment, and sadly the passages which we have quoted from the more recent report indicate that her reluctance continues despite having heard all that the sentencing judge had to say. After her first arrest, Ms Strugnall did not seek treatment or help. She reoffended whilst on bail. None of this provides a promising setting for persuading the court to adopt a therapeutic rather than a punitive course. Ms Thornber's submissions to the learned judge were perfectly proper and were no doubt persuasively made, but they were no more than an assertion of Ms Strugnall's belated wish to take an opportunity to receive help. It was by no means a final and long sought-for opportunity. There had been opportunities in the past. 46. We agree with Ms Thornber that the judge did reflect carefully on the form of the sentence with a view to encouraging compliance and providing for an appropriate sanction in the event of non-compliance. With respect, however, the judge did not place sufficient focus upon the important antecedent question of whether there was such a prospect of compliance and successful rehabilitation as would justify a non-custodial sentence. 47. We are conscious of the pressure of work on Crown Court Judges and Recorders. We understand why the judge approached the sentencing exercise in the manner she did, engaging in a dialogue with counsel and expressing her sentencing remarks succinctly. We make no criticism at all of that. But, with respect to the judge, we regard this as a case in which no sufficient reason was expressed for her taking the course she did and we cannot see that the course which was taken was justified in the circumstances of this case. We cannot agree with Ms Thornber that this sentencing would not harm public confidence. In our view, the public would be surprised that an offender who supplied class A drugs and then did it again whilst on bail should be dealt with in this way, when the pre-sentence report was not able to offer a good prospect of rehabilitation. 48. For those reasons, we are satisfied that the sentencing was unduly lenient and that custody was unavoidably necessary. As to the total term of that custody, we infer from the judge's remarks that she had in mind a total sentence, taking account of totality, of around seven years after trial. We also infer that, if passing such a sentence, she would have been prepared to give full credit for the guilty pleas, resulting in a total term of four years eight months. That in itself would be a comparatively lenient course, but it would not be unduly lenient. In the circumstances of this case, we think that we should not go beyond that length of sentence which the offender heard indicated by the judge. 49. We therefore grant leave to refer. We quash the sentences imposed below. We substitute for them the following: on count 1, two years, four months' imprisonment; on count 3, two years, four months' imprisonment consecutive. Thus the total term is one of four years eight months' imprisonment. 50. Ms Thornber, is there any compelling reason why Ms Strugnall cannot surrender to custody by 4.00 pm today? 51. MS THORNBER: Not to my knowledge, my Lord. 52. LORD JUSTICE HOLROYDE: Are you able to assist us with the relevant local police station following her -- 53. MR POLNAY: Wymondham. 54. LORD JUSTICE HOLROYDE: You'll have to spell it, I'm afraid. 55. MR POLNAY: W-Y-M-O-N-D-H-A-M. 56. LORD JUSTICE HOLROYDE: Thank you. Then the offender must surrender to custody at Wymondham PIC by 4.00 pm today. 57. Thank you both very much.
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{"ConvCourtName": ["Crown Court At Norwich"], "ConvictPleaDate": ["2018-08-13"], "ConvictOffence": ["two offences of possession with intent to supply ofa class A controlled drug,"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No", "Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Unconditional Bail", "Unconditional Bail"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Norwich"], "Sentence": ["rehabilitation activity requirement for 15 days", "drug rehabilitation requirement for six months", "community order for 12 months"], "SentServe": ["Concurrent"], "WhatAncillary": ["rehabilitation activity requirement", "community order"], "OffSex": ["All Female"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Had mental health problems"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["data not available"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Police evidence"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["re-offending on bail", "seriousness of the offending", "value of that heroin", "failed to answer to her bail"], "MitFactSent": ["never had a drug rehabilitation requirement"], "VicImpactStatement": ["data not available"], "Appellant": ["Attorney General"], "CoDefAccNum": ["1"], "AppealAgainst": ["Sentence (is unduly lenient)"], "AppealGround": ["unduly lenient."], "SentGuideWhich": ["totality", "Criminal Justice Act 2003", "Sentencing Council's definitive guideline in relation to the drugs offences", "Criminal Justice Act 1988,"], "AppealOutcome": ["total term is one of four years eight months' imprisonment.", "quash the sentences"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["underestimate the seriousness"], "ReasonDismiss": ["data not available"]}
431