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Case No:
201301030 B5
Neutral Citation Number:
[2013] EWCA Crim 1781
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Isleworth Crown Court
Mr Recorder Shetty
T20121103
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
22/10/2013
Before :
LORD JUSTICE FULFORD
MR JUSTICE HICKINBOTTOM
and
MR JUSTICE LEWIS
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
- and -
Damian John Montague
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Tim Bass
(instructed by Frazer Bradshaw Solicitors) for the
Appellant
Mr W Cranston-Morris
(instructed by
The Crown Prosecution Service) for the
Respondent
Hearing dates : 27 September 2013
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Fulford :
Introduction
1.
On 25
th
January 2013 in the Crown Court at Isleworth before Mr Recorder Shetty and a jury the appellant was convicted of two counts of having articles in his possession, or under his control, for use in the course of or in connection with any fraud, contrary to
section 6(1) Fraud Act 2006
(counts 1 and 2 on the indictment he faced).
2.
On 8
th
March 2013 he was sentenced by the learned recorder to 5 months’ imprisonment concurrent on each count.
3.
He was jointly charged with others. Quincy Williams pleaded guilty to counts 1 and 2. He was sentenced to 9 months’ imprisonment suspended for 2 years with a requirement to undertake 200 hours unpaid work and to undertake education, training and employment for 10 days. Edwin Danso was acquitted of count 1. Michael Owusu pleaded guilty to count 1. He was sentenced to 4 months’ imprisonment suspended for 2 years with a requirement to undertake 80 hours unpaid work. Curtis Efole was acquitted of one count of fraud (count 3) and one count of making or supplying articles for use in frauds (count 4).
4.
The appellant was granted leave by the single judge to appeal his conviction.
5.
The short point arising on this appeal is whether the judge fairly directed the jury on the issue of joint enterprise. It is argued that the jury should have been directed that the appellant could only be convicted as a principal and that he was to be acquitted if the jury concluded he may only have had a secondary role.
The facts
6.
At around 11am on 10
th
November 2011 the police stopped the appellant, Williams, Owusu and Danso in Caxton Road, London W12. They were standing near Williams’ car. They were searched. Owusu was in possession of a Santander cash card and a United Kingdom driving licence both in the name of Mr S. Sharman (these items related to count 1, in which the appellant, Williams, Danso and Owusu were charged). The cash card had been issued to Danso and the driving licence bore the appellant’s photograph. All four were arrested and their home addresses searched. In a safe in Williams’ bedroom the police found, amongst other things, another UK driving licence in the name of Beasley with the appellant’s photograph on it and a strip of passport photographs of the appellant. The photographs were identical to the pictures on the driving licences. There were also three bank customer profile reports relating to Barclays Bank customers. These had been printed by co-accused Efole, who worked at the Sutton branch of Barclays Bank, on 9
th
November 2011. All of these latter items formed the basis of count 2 (in which the appellant and Williams were charged).
7.
In interview the appellant declined to answer the questions put to him other than to deny that he had ever been in possession of the cash card and licence relating to Sharman. That remained his defence at trial as regards all of the items set out in the two counts (although we note he was not questioned in interview about the documents in the safe).
The cases for the prosecution and defence
8.
The prosecution case was that Williams was the principal fraudster. It was suggested there was a strong inference that the four men who had been stopped on 10 November 2011 were “in this together”, in that the cash card was in Danso’s name and the driving licence had the appellant’s picture on it. The Crown’s contention was that the appellant was the only person who could have benefited from using the driving licence. Accordingly, it was argued this was a joint enterprise and the appellant’s involvement was demonstrated,
inter alia
, by his photographs on the false documents. Additionally, the prosecution maintained that the circumstantial evidence, such as the other copies of his photographs in the safe, supported the inference that he was jointly in possession or control of the fraudulent items, even if he was not physically in possession or control of them.
9.
The defence case was that the appellant was not in possession or control of any of the fraudulent items found on Owusu or in Williams’ safe. It was contended there was no evidence that he saw, handled or knew of the cards or driving licences and that if the co-accused had intended to give him the articles relating to Sharman, “possession” had not been transferred by the time they were arrested. In support of this defence, it was emphasised that Williams was the “puppeteer” in this case and exercised strict control over the fraudulent items and the appellant had ceased being possession of the passport photographs that were found in the safe.
The issues in the case
10.
Accordingly, at trial the issue for the jury in relation to the appellant was whether he was, on a joint enterprise basis, in possession of the driving licence and two bank cards (count 1) and a driving licence, a bank card, passport photographs and three customer profile printouts of Barclays bank customers (count 2), on 10 November 2011.
11.
The issues raised on this appeal are twofold. First, did the judge sum up the case on joint enterprise in a way that undermined an assurance by the prosecution and the court as to how the case was be left to the jury, with the result that the appellant elected on a false basis not to give evidence. Second, did the summing up impermissibly “all but strip[…] him of a valid defence”. The appellant maintains that his approach to the case was that he could only be convicted if he was a principal and that participation as an accessory was insufficient.
The discussions before the summing up and the draft directions
12.
The appellant was faced with some notably difficult factual circumstances because, as the judge observed to the jury, his counsel had not challenged the proposition that the driving licence and bankcard bearing his photograph were for use in the course of or in connection with fraud. In those circumstances, defence counsel, Mr Bass, during the course of his closing speech, sought to rely on the narrow defence that at the relevant time these items were not in his possession or under his control as a principal. During submissions before this court, Mr Bass accepted that prior to his closing speech it may well have been unclear that this was the limited defence the appellant was advancing, given that the Defence Statement was almost devoid of any substance. Under the heading “The General Nature of the Accused’s Defence”, it simply rehearsed that “[t]he defendant denies possessing or controlling the articles in question and was unaware of any potential or proposed fraud by others”. This bald statement would not have alerted the prosecution or the court to the importance now attached to the distinction in this case between principals and accessories that has featured prominently on this appeal.
13.
In the context of his submission of no case to answer, Mr Bass indicated to the recorder that the Crown were proceeding on the foundation that the defendant was guilty of possession of the items for use in fraud on the basis of joint enterprise liability. During his ruling, the judge referred to the possibility of the prosecution establishing the appellant’s guilt as an aider or abettor, or a counsellor or procurer, of the offences; in other words, there was the basis for drawing a reasonable inference that the appellant acted as an accessory to the crime. Mr Bass expressed his concern about the reference to secondary liability and the judge responded that this had been included simply because his ruling had been formulated before there had been focus on the precise way the prosecution put its case.
14.
Before counsel’s speeches, the recorder circulated his draft legal directions to the jury on the counts in the indictment:
Count 1 and Count 2
1.
Possession of Articles for use in Frauds consists of the following elements:
a)
Possession of articles or articles under control.
b)
For the use in the course of or in the connection with fraud.
2.
It is not in dispute that the articles were for the use in the course or in connection with fraud. Neither Danso or Montague challenge that the driving licences and the bank cards were for the use in the course or in connection with fraud. The items in count 2 were in Williams’s safe.
3.
As a matter of law, someone may also be in possession of something even if it is not physically on his person if it is part of a common pool to which he has the right draw at will – if he has the right to say what should be done with the thing – or if the possession was part of a joint enterprise – that is the defendants were working together.
4.
The prosecution case on count 1 is that four men committed this offence in a joint enterprise. In respect of count 2, it is alleged that two men committed this offence. An offence can be committed by one person or more than one person. If two or more people act together with a common criminal purpose to commit an offence they are each responsible, although the parts they play when carrying out that purpose may be different. The prosecution must prove participation by the defendant with a common purpose or intention to commit the offence and doing something to bring about a commission of that offence. Whilst participation with a common purpose implies an agreement to act together, no formality is required. The agreement can be made spontaneously any may be inferred from the defendant’s actions.
5.
Your approach to the case should therefore be as follows: if looking at the case against the particular defendant you are considering, you are sure that with the intention I have mentioned he took some part in a plan with another he is guilty. Mere presence at the scene is not enough to prove guilty but if you that the defendant intended and did play a part in the plan he is guilty.
Count 1
6.
Was Danso acting together with others with a common criminal purpose to commit the offence of possession or control of articles for the use in the course of or in connection with fraud? If you are sure that Danso was, then the verdict would be guilty. If you are not sure then the verdict would be one of not guilty.
NB You do not have to be satisfied that Danso was acting together with others with a common criminal purpose to commit the offence of possession or control of articles for the use in the course or in connection with fraud? If you are sure that Montague was, then the verdict would be guilty. If you are not sure then the verdict would be one of not guilty.
Was Montague acting together with others with a common criminal purpose to commit the offence of possession or control of articles for the use in the course of or in connection with fraud? If you are sure that Montague was, then the verdict would be guilty. If you are not sure then the verdict would be one of not guilty.
NB You do not have to be satisfied that Montague was acting together in respect of all the items (a driving licence and two bank cards). Being sure about one item would suffice.
Count 2
6.
Apply the same question above to Montague in respect of the articles in count 2.
(The numbering follows the original)
15.
Having received this document, there was no application from Mr Bass either to call his client or for the discharge of the jury.
16.
After the Crown’s closing speech, Mr Bass again raised his concern that the appellant should not be at risk of conviction on the basis of joint possession solely because he had provided Williams with his photographs. He accepted, however, that the jury could take this evidence into account on the issue of control (given the way the Crown put its case). The prosecution reiterated that it was proceeding on the basis of joint possession and control, as opposed to secondary liability. Mr Cranston-Morris, for the prosecution, rehearsed that the essence of the Crown’s case against the appellant was that he had been part of a fraudulent gang. He had contributed to the creation of the false documents by providing his photographs and he had been with the other members of the criminal enterprise at the time of their arrest. The prosecution was proceeding on the basis that “the joint enterprise plan manifested itself on 10
th
November by the four defendants meeting together with the documents […] in West London. Mr Montague knew about the items that were fraudulently created. He was in control of the items that were fraudulently created. The inference that that is in fact the case, the Crown say, starts with the fact that he had provided the photographs […]”. On this basis, it was alleged the appellant was jointly in possession or control of the fraudulent items, even if he was not physically in possession of them, as “a fully participating member of the joint enterprise”.
17.
However, notwithstanding this formulation of the prosecution’s case, Mr Cranston-Morris correctly submitted that “aiding, abetting, counselling and procuring are merely methods by which an individual may participate in a joint enterprise plan” and that the Crown did not need to distinguish between primary and secondary parties, as long as it was able to prove participation in the plan – in this instance, to possess the articles for use in fraud – with the necessary
mens rea
.
18.
The judge stated that his interpretation of the Crown’s closing speech was that the fact that the appellant handed the photographs to Williams was relied on as circumstantial evidence that could lead the jury to conclude that the appellant was in joint possession of the fraudulent items. He suggested there was no need to go beyond that when directing the jury and counsel for the appellant indicated that he was content with a direction in those terms.
19.
After speeches, Mr Bass indicated that he did not object to the contents of paragraphs 2 and 3 of the written directions (he proposed a slight amendment on an unrelated issue), but he suggested that paragraphs 4 and 5 left open the possibility that the appellant was guilty solely on the basis that he handed the photographs to Williams in order to produce false documents. Mr Bass conceded that if the appellant had “some control” over one or more of the items in question “even if it [was] not in his possession, he would be guilty of the offence”. The recorder agreed that he needed to direct the jury that the mere fact that the appellant gave Williams the photographs did not itself prove guilt, and he accepted Mr Cranston-Morris’s submission that the Crown had to prove “joint intent and […] joint possession and control”. Mr Bass indicated he was content with this approach.
The summing up
20.
The judge summed the case up on counts 1 and 2 as follows:
“So let us go through these directions and I will deal with count 1 and count 2 first of all, because these relate to the same charge, albeit to different items. Possession of articles for use in frauds consists of the following elements. The first is possession of articles or articles under the control and the second part is for the use in the course or in connection with fraud.
Now, members of the jury, it is not in dispute that some of the articles in this case i.e. the bank cards and the driving licences were for the use or in the connection of or in connection with fraud. The reason for that is quite obvious, is it not, because we know that driving licences had the wrong name for the wrong person, so did the bank cards of Beasley and Sharman and neither Mr Danso or Mr Montague’s counsel challenged that those driving licences and the bank cards were for the use in the course of or in connection with fraud.
These items in count 1 were found in Owusu’s possession and the items in count 2 were found in Mr Williams’ safe. So that is the distinguishing fact between the items specified in count 1 and the items specified in count 2.
Now, as a matter of law, someone may also be in possession of something even if it is not physically on his person, if it is part of a common pool to which he has the right to draw at will, if he has the right to say what should be done with the thing or if the possession was part of a joint enterprise. That is the defendants working together.
The prosecution case on count 1 is that four men committed this offence in a joint enterprise and in respect of count 2 it is alleged that two men committed this offence in a joint enterprise. An offence can be committed by one person or more than one person. If two or more people act together with a common criminal purpose to commit an offence they are each responsible, although the parts they play when carrying out that purpose may be different.
The prosecution must prove participation by the defendant with the common purpose or intention to commit the offence and doing something to bring about the commission of that offence. Whilst participation with a common purpose implies an agreement to act together, no element of formality is required. The agreement can be made spontaneously and it may be inferred from the defendant’s actions.
Your approach to this case should therefore be as follows: if looking at the case against the particular defendant you are considering you are sure that, with the intention I have mentioned, he took some part in a plan in the possession or control of the items with another he is guilty. Mere presence at the scene is not enough to prove guilt. But if you find that the defendant intended and did play a part in the plan to possess or control he is guilty.
Now, count 1, just focusing in on that, the question I hope I have refined for you, after you have come to your conclusion of facts is, was Danso acting together with others with a common criminal purpose to commit the offence of possession or control of articles for the use in the course of or in connection with fraud? If you are sure that Danso was, then the verdict would be guilty. If you are not sure, then the verdict would be one of not guilty.
And a little note is that, you do not have to be satisfied that Mr Danso was acting together with others in respect of all of the items i.e driving licence and two bank cards. Being sure about one item would suffice.
Moving on to Mr Montague, the question, I hope, is as follows – this is after you apply the facts: was Montague acting together with others with a common criminal purpose to commit the offence of possession or control or articles for the use in the course of or in connection with fraud? If you are sure that Montague was, then the verdict would be guilty and if you are not sure, then the verdict would be one of not guilty and, of course, the same considerations apply with regards to those items.
Count 2, members of the jury, is exactly the same question, but only in respect, of course, of the articles in count 2. Those are the ones that were found in the safe.
I also, members of the jury, remind you that, for example, if one looked at the photographs that were found in the safe the strip photographs, it would not be enough for you to find that just because, for example, they were given over a week or two weeks or a few days before 10
th
November, that must mean that Mr Montague was in possession of items in the context of this case
.”
The submissions
21.
Mr Bass submits the judge misdirected the jury at paragraphs 3-5 of the written directions and thereafter during the summing up on the issue of joint possession and control in that he gave a joint enterprise direction that, in effect, permitted the jury to convict on the basis of aiding and abetting or counselling and procuring. In particular, it is highlighted that the charge was one of possession and not a conspiracy alleging the creation and supply of articles for use in fraud. It is suggested that the prosecution had given a clear indication that its case was that of “joint possession and control” and that it did not seek a conviction on the basis of secondary participation and the judge had informed counsel he would not be directing the jury on that alternative basis. As a result, the appellant decided not to give evidence, although if he had known how the case was to be left to the jury it is “likely” he would have testified.
22.
The prosecution contends that the criticisms of the judge’s directions are unfounded. In particular, it is suggested the recorder did not equate involvement in the creation of the items with possession and control of them at the relevant time. Instead, it is suggested the appellant’s contribution at this earlier stage was a material consideration in determining whether he was in possession of them, either personally or on a joint enterprise basis. The prosecution maintains the jury were entitled to conclude that the appellant and his co-accused were “in it together”. In all the circumstances, it is suggested that the Crown did not change its case after the close of the evidence or at any other time.
Discussion
23.
Although the difference in law between principals and accessories is of considerable importance in our system of justice in terms of defining the criminal liability of the individual concerned (see
R v A and others
[2010] EWCA Crim 1622
at [9]), in the vast majority of cases – as presented to juries – the distinction tends to be unimportant. This is particularly the case given that pursuant to
section 8 of the Accessories and Abettors Act 1861
, an accessory is liable to treated as a principal offender. Indeed, it is not unusual for it to be unclear whether the defendant’s role was that of a principal or a secondary. In those circumstances this issue can be left on an alternative basis if the prosecution can properly allege that if the defendant is not liable to be convicted on one basis (
e.g.
as a principal), he must be liable on the other (
e.g.
as a secondary).
24.
By way of example, in
R v Robert Vincent Giannetto
[1997] 1 Cr. App. R. 1 the prosecution was unable to say whether the appellant was the murderer (the principal) or that someone else had murdered Julia Giannetto on his behalf (meaning the appellant was a secondary). The Court of Appeal decided that the prosecution was entitled to put its case on an alternative basis:
“[…] we are satisfied that in the circumstances of this case the trial judge was right not to direct the jury that before they could convict they must all be satisfied either that the appellant killed his wife or that he got someone else to do so. They were entitled to convict if they were all satisfied that if he was not the killer he at least encouraged the killing […].” [8F]
25.
The court went on to observe:
“There are two cardinal principles. The first is that the jury must be agreed upon the basis on which they find a defendant guilty. The second is that a defendant must know what case he has to meet. When the Crown allege, fair and square, that on the evidence, the defendant must have committed the offence either as principal or as secondary offender, and make it equally clear that they cannot say which, the basis on which the jury must be unanimous is that the defendant, having the necessary mens rea, by whatever means caused the result which is criminalised by the law. The Crown is not required to specify the means, because the legal definition of the crime does not require it; and the defendant knows perfectly well what case he has to meet. Of course, if (as will very often be so) the Crown nail their colours to a particular mast, their case will, generally, have to be established in the terms in which it is put. Our judgment should give no encouragement to prosecutors casting around for alternative possibilities where the essential evidence does not show a clear case against the defendant. But the facts of the present appeal are by no means an instance of that.” [8G – 9B]
(see also
R v Tirnaveanu
[2007] 2 Cr. App. R. 23
)
26.
One of the critical factors, therefore, is the need for clarity as regards the alleged role of the defendant. In
DPP for Northern Ireland v Maxwell
[1978] 1 W.L.R. 1350
, 1357; [1979] 68 Cr. App. R. 128 the accused had been charged in the indictment as a principal when he was a secondary, as regards offences of doing an act with intent to cause an explosion and being in possession of a bomb. Lord Hailsham emphasised it is desirable “in these cases of aiding, abetting, counselling or procuring, of drawing the particulars of offence in such as way as to disclose with greater clarity the real nature of the case that the accused has to answer”. Viscount Dilhorne put the matter thus:
“No objection could be taken to the form of these counts as by statute aiders and abettors can be charged as principals, but the particulars to each count give no indication of the case the prosecution intended to present and which the appellant had to meet. In the particulars to the first count, he is charged with placing the bomb in the Crosskeys Inn; in the particulars to the second with having had it in his possession or under his control. The prosecution did not attempt to prove that he had placed the bomb or that he had been present when the bomb was put in the inn, nor was any attempt made to establish that at any time he had the bomb in his possession or under his control. It is desirable that the particulars of the offence should bear some relation to the realities and where, as here, it is clear that the appellant was alleged to have aided and abetted the placing of the bomb and its possession or control, it would in my opinion have been better if the particulars of offence had made that clear.” [1353]
27.
Applying those principles, it follows that it was necessary that the case against the present appellant was advanced on a proper legal basis, which did not breach any substantive assurance given by the prosecution or the court as to the way the matter would be left to the jury, and that the allegation he had to meet was clearly spelt out. Additionally, we observe that if the Crown had proceeded on the entirely legitimate basis that the appellant was liable to be convicted as a principal or an accessory, none of the present difficulties would have arisen and the judge would not have needed to address unnecessary conceptual issues, in an artificial context. It will usually be preferable for the case to be presented on this alternative footing when the prosecution is entitled, on the facts, to suggest that it is open to the jury to convict the accused either as a principal or as a secondary because there is no relevant or material difference in relation to the issues in the case between the two alternatives. In those circumstances, a direction pursuant to
R v Brown (Kevin)
(1984) 79 Cr. App. R. 115 will not need to be given.
28.
Mr Bass accepts that the directions in law to the jury were entirely appropriate in a joint enterprise case of this kind, if the appellant was liable to be convicted as either a principal or an accessory (as regards the latter by aiding and abetting the possession or control of the items by another or others). Instead, as set out above, his complaint is that following the discussions in court the judge did not direct the jury to acquit unless they were sure he was a principal, in the sense that one or more of the items relevant to the count they were considering was in his possession or under his control, either by way of personal possession or on a joint enterprise basis. It is argued that as a result the jury may have convicted him as a secondary.
29.
The expression “possession and control” indicates that the individuals concerned needed to have had “actual control of the goods” (or possession of them), the test applied by the Court of Appeal in
R v Kousar
[2009] EWCA Crim 139
;
[2009] 2 Cr.App.R. 5
. Although that case concerned “possession, custody or control” of an item by a principal for the purposes of the
Trade Marks Act 1994
in the context of a marriage, it is to be noted that the Court of Appeal expressly disavowed the suggestion that an “ability to control” was sufficient to establish liability, certainly in the context of that case.
30.
As regards “joint possession”, in our judgment the approach taken in
R v Searle
[1971] Crim.L.R. 592 (a case that concerned a number of accused who were found in a touring vehicle that contained various dangerous drugs) applies equally to articles that are alleged to be in an accused’s possession or under his control for use in the course of or in connection with any fraud contrary to
section 6(1) Fraud Act 2006
. As set out in the report of the case in the Criminal Law Review:
“[…] mere knowledge of the presence of a forbidden article in the hands of a confederate was not enough: joint possession had to be established. The sort of direction which ought to have been given was to ask the jury to consider whether the drugs formed a common pool from which all had the right to draw at will, and whether there was a joint enterprise to consume the drugs together because then the possession of drugs by one of them in pursuance of that common intention might well be possession on the part of all of them: Thompson
(1869) 21 L.T. 397
.”
31.
In the written directions provided in advance of speeches ([14] above), the judge had instructed the jury that there were two relevant options as regards possession:
either
the item in question was in a common pool from which he had the right to draw at will (he had the right to say what should be done to the thing, to use the judge’s expression)
or
possession was part of a joint enterprise with the defendants working together, and that the appellant did something to bring about the commission of the offence in question. It is unnecessary to analyse the former basis because the second option potentially encompassed joint enterprise participation on the part of the appellant other than as a principal who had, either alone or with others, “actual control of the goods”. Having posed the options as alternatives, for the appellant to be convicted as a principal the judge would have needed to direct the jury that it was for the Crown to demonstrate the appellant, alone or with others, had possession or control of the articles for use in fraud, by having the necessary ability to control them. The judge’s written directions did not make this sufficiently clear.
32.
Therefore, the second option described by the judge meant the present case was left on the basis that the jury could convict if they found that the appellant was a secondary.
33.
However, that conclusion is not determinative of this appeal. Putting to one side for one moment the legal concepts of principals and secondary parties, Mr Cranston-Morris’s case against the appellant was that he had been part of a fraudulent gang, as demonstrated by the photographs he provided for the false documents and his presence with this co-accused at the time of their arrest in West London when the joint enterprise plan “manifested itself”. It was suggested unequivocally that even if the appellant was not physically in possession of the fraudulent documents, he was “a fully participating member of the joint enterprise”. There was never any doubt that this was the core of the case against the appellant, and it was suggested the prosecution was able to prove his participation in the plan – to possess or control the articles for use in fraud – with the necessary
mens rea
. Whether, strictly speaking, he was in joint possession of the items on 10 November 2011, or instead assisted others who were in possession of them, made no material difference to the prosecution case he had to meet on the facts. Indeed, this case is a paradigm of the circumstances when it is extremely difficult to determine whether a particular accused is properly to be described as being a principal or a secondary, although a jury would have been fully entitled to determine to the criminal standard that if he was not the one, he was the other.
34.
In accordance with the suggestion of Mr Bass, the judge directed the jury that the appellant was not to be convicted if he may have done no more than provide the photographs in advance of 10 November 2011 (whether found in the safe or, by implication, elsewhere) because that limited contribution to the criminal enterprise would not have established that he was in possession of them on 10 November 2011 (the date charged in the indictment). In our judgment, that direction ensured that the appellant could only be convicted on the basis that he participated in the plan – to possess or control the articles for use in fraud – on the day he was arrested with his co-accused.
35.
Whilst it is correct to observe that Mr Bass pressed for a concession that the appellant could only be convicted as a principal, it was only during his closing speech that the real reason for, and significance of, his repeated submissions on this subject were revealed. If an accused chooses not to elucidate the true nature of his defence until the very last moment (in this instance, a limited and technical defence), the court will be particularly astute in investigating whether any suggested unfairness, largely caused by the lack of clarity as regards the issues in the case, has resulted in an unsafe verdict. Rule 3.2 of the Criminal Procedure Rules places an obligation on the parties actively to assist the court in identifying the real issues in the case at an early stage, and the defence does not appear to have cooperated in this way in the present trial.
36.
In the event, we have no doubts as to the safety of the convictions on counts 1 and 2. The case against the appellant was advanced on a proper legal basis (as Mr Bass accepted), which did not breach any substantive assurance given by the prosecution or the court as to the way the matter would be left to the jury, and the entirety of the case he had to meet was clearly spelt out. We are unimpressed with the submission that it was material to his defence whether he was liable to be convicted as a principal or a secondary, and particularly the suggestion that this was significant as regards his decision on whether or not to give evidence. The reality of the allegation he had to meet was unaffected by the precise legal label attached to his participation in these two offences. Given the judge expressly withdrew the possibility of a conviction on the basis that he provided the photographs for the fraudulent documents, the appellant needed – whether as a principal or an accessory – to deal with all the other aspects of the relevant evidence, including particularly the events of 10 November 2013.
37.
To return to the words of Lord Hailsham in
Maxwell
, there was complete clarity as to the real nature of the case the appellant had to meet and no unfairness resulted from the apparent lack of precision in the summing up and in the written directions as to whether his criminal liability was limited to participation as a principal. Furthermore, once Mr Bass accepted that paragraph 3 of the written directions was a correct description of the law, it is difficult to see how the judge can be criticised credibly for summing up in the way we have set out. The appellant did not apply to be allowed to give evidence once he heard how the prosecution left the case to the jury in Mr Cranston-Morris’s closing speech; no submissions were made to the judge to amend his legal directions at the conclusion of the summing up; and no application was made at any stage to discharge the jury on the grounds of unfairness.
38.
This was a strong case against the appellant. In essence, he sought to defend himself on the basis that he had not been involved, either alone or on a joint enterprise basis, in the possession or control of the relevant items after he supplied the photographs to his co-accused. For the purposes of resolving that issue it was not of significance whether he was in joint possession of the items on 10 November 2011 (as a principal) or, instead, assisted others who were in possession of them (acting as an accessory). Accordingly, the verdicts are safe and this appeal is dismissed. | {"ConvCourtName": ["Crown Court at Isleworth"], "ConvictPleaDate": ["25th January 2013"], "ConvictOffence": ["having articles in his possession"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Isleworth"], "Sentence": ["5 months’ imprisonment concurrent on each"], "SentServe": ["concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["home addresses"], "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": ["UK driving licence", "searched"], "DefEvidTypeTrial": ["deny that he had ever been in possession"], "PreSentReport": ["data not available"], "AggFactSent": ["joint enterprise"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["Quincy Williams pleaded guilty to counts 1 and 2. He was sentenced to 9 months’ imprisonment suspended for 2 years with a requirement to undertake 200 hours unpaid work and to undertake education, training and employment for 10 days. Edwin Danso was acquitted of count 1. Michael Owusu pleaded guilty to count 1. He was sentenced to 4 months’ imprisonment suspended for 2 years with a requirement to undertake 80 hours unpaid work. Curtis Efole"], "AppealAgainst": ["appeal his conviction."], "AppealGround": ["whether the judge fairly directed the jury on the issue of joint enterprise"], "SentGuideWhich": ["section 6(1) Fraud Act 2006"], "AppealOutcome": ["appeal is dismissed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The case against the appellant was advanced on a proper legal basis (as Mr Bass accepted), which did not breach any substantive assurance"]} | {"ConvCourtName": ["Crown Court At Isleworth"], "ConvictPleaDate": ["2013-01-25"], "ConvictOffence": ["having articles in his possession"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Isleworth"], "Sentence": ["5 months’ imprisonment concurrent on each"], "SentServe": ["Concurrent"], "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": ["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": ["Documentation", "Police evidence"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["joint enterprise"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["4"], "AppealAgainst": ["appeal his conviction."], "AppealGround": ["whether the judge fairly directed the jury on the issue of joint enterprise"], "SentGuideWhich": ["section 6(1) Fraud Act 2006"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The case against the appellant was advanced on a proper legal basis (as Mr Bass accepted), which did not breach any substantive assurance"]} | 386 |
Neutral Citation Number:
[2009] EWCA Crim 1982
Case No:
200904117/A5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 17th September 2009
B e f o r e
:
LORD JUSTICE MAURICE KAY
MR JUSTICE SILBER
MR JUSTICE BURNETT
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
MATTHEW JOHN BLYTHE
- - - - - - - - - - - - - - - - - - - - -
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 O Saxby
appeared on behalf of the
Appellant
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE SILBER: Matthew Blyth appeals with leave of the single judge against sentences totalling 12 months' imprisonment, which have been imposed upon him at the Crown Court at Canterbury on 27th July 2009. The appellant had earlier pleaded guilty to counts of common assault and on rearraignment to an offence of dangerous driving. He received a sentence of 12 months' imprisonment for the dangerous driving and 4 months' imprisonment concurrent for the common assault.
2.
The appeal relates to an offence which occurred on 30th October 2000 and when a parking warden, Mr Dean Altridge, was on duty in uniform in Dover. The time came when a Subaru motorcar owned by the appellant was parked in an area where loading was not permitted. Mr Altridge noted there was nobody in it and then started to issue a penalty notice when the appellant arrived carrying some carrier bags shouting that he was going.
3.
The appellant then got into his car and reversed back several feet before winding down the window and asking Mr Altridge if he was going to give him a parking ticket. At that time Mr Altridge was taking a picture of the car and he replied in the affirmative whereupon he printed off the ticket and handed it to the appellant who had been argumentative. The appellant put the steering full lock to the right and the car lurched towards Mr Altridge who had to quickly step out of the way to avoid being hit. Mr Altridge moved to the rear of the car and again moved quickly out of the way as the appellant reversed towards him. Indeed Mr Altridge reached a point where there was a metal pollard between him and the car. At this point, the appellant got out of the car and approached Mr Altridge saying "shall we take this round the corner". The appellant put his hands on Mr Altridge shoulders and pushed him hard enough that Mr Altridge had to take a step back. A bystander shouted there was closed circuit television at which point the appellant got back into his car and drove off.
4.
There was a basis of plea put forward and the appellant accepted his guilt to dangerous driving but he did so on the basis "that he reversed in the heat of the moment, over a short distance towards in the direction of the traffic warden thereby exposing him to the risk of injury." The basis of plea stated "at no stage did he drive deliberately at a traffic warden nor was it his intention to cause the traffic warden any harm or injury".
5.
There was an impact statement from Mr Altridge, who explained he was so upset by what had happened that it affected his sleeping. He was also signed off work for a period of four weeks but he subsequently returned to work with the benefit of counselling.
6.
The appellant is now aged 36 years of age. He has 12 convictions for 21 offences and he served a number of custodial sentences mainly for drug offences.
7.
In January 2003 he received a sentence of 12 months' imprisonment for assault occasioning actual bodily harm.
8.
The pre-sentence report noted that the appellant attributed his behaviour to his agitated state and his own stupidity in parking illegally and what he perceived as overzealous officiousness. The judge in sentencing the appellant explained that the car had been used as a weapon.
9.
The basis of the plea is that the sentence was manifestly excessive and that the judge went behind the basis of plea which had not been challenged by the prosecution.
10.
We have no doubt that a custodial sentence in this case was totally justified. Car parking attendants perform a useful function and also the nature of their work means they are subject to regular abuse and vilification. Set against that background, there is a need to give them protection and to give sentences which deter people from behaving in an aggressive way towards them.
11.
The behaviour of the appellant in this case, the public case, merits custodial sentence. But the issue then is whether or not the sentence was too long. In the advice accompanying the notice of appeal counsel referred first to the decision of this court in
R v Fabian Robert Joseph
[2001] EWCA Crim 1195
, in which a motorist who dissatisfied that at receiving a parking ticket got into his vehicle and turned his vehicle towards the parking attendant and drove at him. In consequence the attendant slid onto the bonnet of the vehicle and carrying 150 yards down the road before he got off the vehicle and the appellant drove off. The attendant received a cut finger and some pain in his back. He did not require hospital treatment. An independent witness had seen the vehicle driven by the appellant with the traffic warden on the bonnet and he noted that the appellant's car was weaving and appeared to be accelerating at the same time. The appellant in that case was convicted after pleading not guilty. He was a man of previous good character, whose business had gone into bankruptcy. The sentence was reduced by this court from 15 months' imprisonment to 10 months' imprisonment.
12.
Another case relied on by the appellant's counsel is
R v Watson
[2007] EWCA Crim 1595
, in which a parking attendant had issued a ticket when the driver returned to the car and chased the traffic warden up the road and threw a stone at him. The driver threatened to "burst his arse" and he said that if he saw the parking warden again he would run him over. When the traffic warden went down the street and started to make some notes, the driver got into his car and executed a three-point turn. He then drove deliberately at the attendant. The driving of the appellant in that case was described as being very aggressive, with the driver speeding up the car and deliberately swerving towards the parking warden who was forced to jump out of the way. There was another incident a few minutes later when the car returned and drove towards the traffic warden, but he was not hit. The appellant pleaded not guilty but after conviction he was sentenced to 20 months' imprisonment. On appeal this court reduced his sentence to 12 months' imprisonment.
13.
Of course neither of those cases are guideline cases and each case depends on their particular facts. We do note that in this case, as compared with the other cases, the appellant had a bad record but, on the other hand, the degree of violence shown by him was far less. We also consider that the judge went behind the basis of plea in finding that the car had been used as a form of weapon.
14.
In our view, the appropriate sentence in this case would have been 12 months' imprisonment but, after applying the conventional discount for an early plea, the appropriate sentence should be 8 months' imprisonment. To that extent we reduce the sentence of dangerous driving to 8 months' imprisonment. The overall sentence therefore becomes 8 months' imprisonment. To that extent this appeal is allowed. | {"ConvCourtName": ["Crown Court at Canterbury"], "ConvictPleaDate": ["27th July 2009"], "ConvictOffence": ["rearraignment to an offence of dangerous driving", "common assault"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Canterbury"], "Sentence": ["12 months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["The appellant is now aged 36 years of age."], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["Mr Dean Altridge"], "VicNum": ["Mr Dean Altridge"], "VicSex": ["Mr Dean Altridge"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["was on duty"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["A bystander shouted there was closed circuit television at which point the appellant got back into his car and drove off.", "closed circuit television"], "DefEvidTypeTrial": ["hat he reversed in the heat of the moment, over a short distance towards in the direction of the traffic warden thereby exposing him to the risk of injury.\" The basis of plea stated \"at no stage did he drive deliberately at a traffic warden nor was it his intention to cause the traffic warden any harm or injury\"."], "PreSentReport": ["data not available"], "AggFactSent": ["The appellant put the steering full lock to the right and the car lurched towards Mr Altridge who had to quickly step out of the way to avoid being hit.", "signed off work for a period of four weeks", "affected his sleeping", "He has 12 convictions for 21 offences and he served a number of custodial sentences mainly for drug offences."], "MitFactSent": ["the degree of violence shown by him was far less."], "VicImpactStatement": ["impact statement from Mr Altridge"], "Appellant": ["The appellant had earlier pleaded guilty"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentences"], "AppealGround": ["sentence was manifestly excessive and that the judge went behind the basis of plea which had not been challenged by the prosecution."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["To that extent we reduce the sentence of dangerous driving to 8 months' imprisonment. The overall sentence therefore becomes 8 months' imprisonment. To that extent this appeal is allowed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["the degree of violence shown by him was far less"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Crown Court At Canterbury"], "ConvictPleaDate": ["2009-07-27"], "ConvictOffence": ["rearraignment to an offence of dangerous driving", "common assault"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court At Canterbury"], "Sentence": ["12 months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["Don't know"], "OffSex": ["All Male"], "OffAgeOffence": ["36"], "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": ["Employed"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["closed circuit television", "witness testimony"], "DefEvidTypeTrial": ["Lack of Intention"], "PreSentReport": ["data not available"], "AggFactSent": ["He has 12 convictions for 21 offences and he served a number of custodial sentences mainly for drug offences.", "signed off work for a period of four weeks", "long term effect on victim", "use of car as weapon"], "MitFactSent": ["the degree of violence shown by him was far less."], "VicImpactStatement": ["Yes"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentences"], "AppealGround": ["sentence was manifestly excessive and that the judge went behind the basis of plea which had not been challenged by the prosecution."], "SentGuideWhich": ["Don't know"], "AppealOutcome": ["Allowed&Sentence Replaced by More Excessive Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["personal mitigation"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 600 |
Neutral Citation Number:
[2011] EWCA Crim 2651
Case No:
2011/02170/C1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BRISTOL
His Honour Judge Horton
T20100139
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
10
th
November 2011
Before :
LORD JUSTICE MOORE-BICK
MR JUSTICE BUTTERFIELD
and
MR JUSTICE IRWIN
- - - - - - - - - - - - - - - - - - - - -
Between :
THE QUEEN
Respondent
- and -
VICTOR MEARS
and
HENRY MEARS
THE SECRETARY OF STATE FOR BUSINESS, INNOVATION AND SKILLS
Appellants
Intervener
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr. Geoffrey Robertson Q.C.
and
Miss Annabel Timan
(instructed by
Bishop & Light
) for
Victor Mears
Mr. Rossano Scamardella (
instructed by the
Registrar of Criminal Appeals)
for
Henry Mears
Mr. Malcolm Gibney
(instructed by
Crown Prosecution Service
) for the
Crown
Mr. Paul Ozin (
instructed by the
Treasury Solicitor)
for the
Secretary of State
Hearing date : 26
th
October 2011
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
Lord Justice Moore-Bick :
1.
In the summer of 2008 the appellants, Victor and Henry Mears, conceived the idea of promoting an attraction at Matchams Park near Bournemouth under the name ‘Lapland New Forest’. It was to be open from 28
th
November until 24
th
December in order to take advantage of the period immediately prior to Christmas. The concept was to create in a woodland area scenery of a kind similar to that which one might expect to find in the northern Scandinavian countries, with heavy snow and log cabins and various attractions including a Christmas market of the kind that take place in Germany and other continental countries. A company called Lapland New Forest Ltd, of which Victor Mears was the sole director, was used to mount the attraction. Henry Mears was responsible for marketing and advertising the venture, which was widely advertised in the local press, by posters and handbills and also on the internet. Tickets were priced at £30 each, or £25 for four, and the attraction was clearly aimed primarily at young people and particularly at parents of young children.
2.
Lapland New Forest opened to the public on 29
th
November 2008. On the following Monday (1
st
December) a very large number of complaints were received by Dorset Trading Standards Service to the effect that in a number of respects the experience provided did not match up to what had been advertised. The complaints were investigated by Trading Standards officers and the attraction quickly received a good deal of adverse attention in the media. Lapland New Forest closed on 4
th
December 2008, having been open to visitors for less than a week, and the company itself later went into liquidation.
3.
The appellants were charged with various offences under the
Consumer Protection from Unfair Trading Regulations 2008
. The Regulations, which were made by the Secretary of State for Trade and Industry under
s. 2(2) of the European Communities Act 1972
, implement Council Directive 2005/29/EC, which is aimed at unfair practices directed by businesses at consumers. It covers (among other things) both misleading acts and misleading omissions which cause, or are likely to cause, the average consumer to take a transactional decision that he would not otherwise have taken. However, Regulation 17 provides a defence in the following terms:
“(1) In any proceedings against a person for an offence under regulation 9, 10, 11 or 12 it is a defence for that person to prove—
(a)
that the commission of the offence was due to—
(i)
a mistake;
(ii)
reliance on information supplied to him by another person;
(iii)
the act or default of another person;
(iv)
an accident; or
(v)
another cause beyond his control; and
(b)
that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control. ”
4.
In this case the appellants were charged with misleading acts contrary to regulation 9 and misleading omissions contrary to regulation 10 on the grounds that they had allowed the company to give descriptions of various features of the attraction in its advertising material that were either not present at all or which fell far short of what was actually provided. Trading standards officers viewed the company’s website, obtained advertising material from local shops and visited the attraction itself. They considered that the descriptions given in the advertisements were misleading in the following respects:
(i)
The advertising material described a “magical tunnel of light” and “a breath-taking tunnel of light”, which turned out to be no more than two rows of conifers lightly dusted with fake snow and lit by coloured up-lighters. Part of the avenue was also lit from above by fairy lights, but none of the lighting showed up well in daylight. Although the effect was better at night, the advertising did not give a fair description of what was provided.
(ii)
The advertising material referred to “beautiful snow-covered log cabins” and contained pictures and descriptions of buildings of the kind that one would normally associate with that description. In addition, the website showed pictures of what were said to be the interiors of the log cabins as well as the area around them, all of which tended to reinforce the impression that they were genuine. The cabins on the site, however, bore little resemblance to traditional log cabins and were covered with very little snow. The pictures tended to reinforce the impression that the log cabins were ‘real’ when in fact they were not.
(iii)
Pictures on the website and other advertisements of “Santa’s amazing snow-covered Lapland village” showed images of deep snow, but the artificial snow used at the site, although realistic, was little more than a heavy dusting and was confined to a limited number of areas.
(iv)
“Seasonal food” was advertised, but there were only two food stalls, one selling turkey baguettes with cranberry sauce and another selling German sausages and cinnamon nuts, together with a stall selling mulled wine. The pictures and description on the website were plainly misleading.
(v)
A “bustling Christmas market” was advertised, but there were no more than two or three market stalls which quite failed to match the description given.
(vi)
The advertising material referred to an ice rink, but it was not available for use.
5.
The attraction generated a good deal of interest. A total of 8,661 transactions were processed through the company’s website between 22
nd
September and 1
st
December 2008, generating revenue from the sale of tickets of a little over £1 million and a further 1,237 transactions were processed through the company’s ‘Streamline’ facility between during November 2008 with a total value of £140,248.05.
6.
The appellants accepted that in the event various aspects of the attraction did not live up to the advertising, but they sought to rely on the defence provided by regulation 17, in some cases seeking to blame those who had contracted to supply equipment and services and in other cases blaming third parties for deliberately undermining the venture. They also said that it had suffered from negative reporting, difficulties over finances and adverse weather conditions which blew away the artificial snow. They maintained that they had exercised all due diligence to avoid the commission of the offences both by themselves and those under their control. However, on 18
th
February 2011 in the Crown Court at Bristol before His Honour Judge Horton they were each convicted of eight offences under the Regulations and were sentenced to a total of 13 months’ imprisonment. They were also disqualified from acting as company directors for 5 years. Each of them now appeals against
conviction
by leave of the single judge, who referred their applications for leave to appeal against sentence
to the Full Court.
7.
There are two quite distinct grounds of appeal in this case. The first arises out of the actions of a member of the jury who was found to have been in contact with her fiancé during the course of the trial by mobile telephone. He had been sitting in the public gallery of the court on several days and from time to time had observed proceedings which took place in the jury’s absence. The second concerns the judge’s direction to the jury on the burden of proof under regulation 17. In short, the appellants say that the regulation is to be construed as imposing an evidential rather than a legal burden on the accused and that in directing the jury that it was for the appellants to establish the facts giving rise to a defence under that regulation the judge misdirected them.
8.
In those circumstances we decided to hear full argument on the first ground before proceeding to consider the second and, having reached the conclusion at the close of the argument on the first ground that the convictions were unsafe, we announced our decision to quash them and said that we would give our reasons at a later date. As a result it became unnecessary for us to hear argument on the second ground of appeal, but we should like to record our thanks to counsel, especially counsel for the Secretary of State, for the careful preparation of that limb of the appeal and their very helpful skeleton arguments.
9.
We now set out our reasons for allowing the appeals.
10.
The trial lasted for the best part of eight weeks. During the short adjournment on the second day of the summing up Victor Mears (junior) noticed one of the female jurors meeting a man who had been sitting in the public gallery from time to time during the trial. His attention was drawn to the two of them partly because they seemed to be acting in a furtive manner, leaving the building in different directions and subsequently meeting up some distance away. His uncle’s counsel, Mr. Scamardella raised the matter with the judge and expressed his client’s concern that the juror might be discussing the case with her companion who had been present in court observing the proceedings at times when the jury were absent. After hearing submissions the judge decided to investigate the matter and the juror was brought into court. She confirmed that she did have a friend who had been sitting in the public gallery (it later became clear that he was her fiancé with whom she was living) and on further questioning she admitted that he had discussed with her various matters which the jury as a whole had not seen or heard and that she had mentioned some of them to one other member of the jury, possibly overheard by two others. As far as she could remember they included matters such as the judge raising his voice to Victor Mears (who was representing himself) and incidental matters, such as people coming in or going out, how long the jury was likely to be kept waiting and matters of that kind. On occasions she had received text messages from him when she was “downstairs”, by which we understand she meant in the jury retiring room.
11.
Not surprisingly, the disclosure that the juror had been receiving text messages from her fiancé while she was in court or in the jury room caused a good deal of concern. At the judge’s request she allowed her mobile phone to be examined and as a result we were provided with a schedule setting out what are said to be the only messages relevant to the issues we have to determine. We shall return to them in due course. The next morning the juror was brought back into court and asked whether she could identify any of the jurors to whom she had disclosed any of the matters relayed to her by her fiancé. She identified one juror by name and said that there might have been two others in the vicinity at the time whom she also identified.
12.
After hearing further submissions the judge decided to ask the remaining members of the jury whether they had received any information from extraneous sources. He had them brought into court and put the following question to them, asking them to put up their hands if the answer was ‘Yes’:
“Has any member of the jury panel mentioned or discussed, which would include texting, with you, anything which has or may have occurred at a time when you, the jury, were not sitting in open court which has or may have been passed on to that juror by a person who has been present in the public gallery for some of the case? ”
No hands went up and a second, more detailed question was asked. Again, no hands went up and the jury were asked to retire.
13.
The errant juror was then brought back into court and asked to recall the number of occasions on which she had mentioned to other jurors what she had been told by her fiancé. She found it difficult to remember, but thought that it would not have been more than five. By that time there was available the schedule of text messages retrieved from her mobile phone. Most were fairly innocuous, but there were a few which were potentially of greater significance. In particular, there was a message from the juror to her fiancé telling him to turn off his phone in case he was caught and another telling him that he was missing an interesting part of the evidence. Most significant, however, was a message sent by the fiancé to the juror during the morning of 11
th
February 2011 while the judge was summing up which simply read “Guilty”.
14.
In the light of what had been discovered an application was made to discharge the jury. The judge directed himself that the test he had to apply was whether a fair-minded, independent and informed observer would conclude that there was a real danger that the jury might be biased, that is, that its decision might be affected by information that it ought not to have received. Having reviewed the evidence he concluded that there was no evidence on which he could come to the conclusion that the juror in question had discussed any matter with other members of the panel apart from the kind of administrative matters she had described, which were not of a prejudicial nature. He expressed himself satisfied by the reaction of the jury when the matter was raised and by their response to his question that no other matters had been disclosed to them. His decision not to discharge the jury was fortified by the fact that there was still an opportunity for him to give a direction emphasising the importance of deciding the case solely on the evidence given in court; and indeed at the end of the summing up the judge did give the jury a clear direction to decide the case only upon the evidence that they had heard in the courtroom and to disregard any press recording or any opinion or comment from other sources.
15.
Mr. Robertson Q.C. and Mr. Scamardella submitted that the judge should have discharged the jury because there was a clear risk of prejudice. Although attention was directed mainly to the information that passed between the juror and her fiancé while she was in court, they submitted that there was a real possibility that they had discussed the case when alone together outside the building. In other words, the texts were, as Mr. Scamardella put it, only the tip of the iceberg. That was a point that had been raised in argument before the judge, but appears not to have weighed heavily with him. They submitted that the number and tone of the text messages suggested that the two were interested in the case and that it was a regular topic of discussion. That being so, it is highly unlikely that they did not discuss it on other occasions. Although there was no firm evidence about the days on which the fiancé had been in court, it was accepted that he had been present on several occasions and that there was a risk that he had obtained information about the appellants to which the jury should not have had access. That was particularly the case in relation to Victor Mears’ previous convictions for dishonesty. Counsel also submitted that the question which the judge put to the remaining members of the jury was confusing and that by putting it to them as a group in open court there was a serious risk that they would be inhibited from admitting the truth.
16.
Mr. Gibney for the Crown submitted that, having regard to the contents of the text messages themselves, the evidence given by the juror in question and the absence of any indication on the part of any of the other jurors that they had been told anything of relevance, the judge was entitled to reach the conclusion that no one could possibly have thought that there was any risk that they might have been prejudiced against either appellant. He acknowledged that the judge did not expressly couch his decision in terms of the view that would be taken by the hypothetical informed, independent and fair-minded observer, but that was in effect what he had decided.
17.
In
R v Hewgill
[2011] EWCA Crim 1778
a number of defendants were charged on an indictment containing seven counts of conspiracy to supply drugs. One, a woman by the name of Gloria Murray, who had been convicted on two counts, was granted bail while the jury continued their deliberations on another count involving Hewgill. She went to a nearby public house where, during the luncheon adjournment, she spoke to some of the jurors who had gone there for refreshments. Hewgill, who was subsequently convicted on the only remaining count of conspiracy to supply heroin, appealed on the grounds that there was a real risk that the jury had been prejudiced by what Murray had told them. The Crown accepted that the conversation should not have taken place and that Murray had introduced extraneous material to the jury, but argued that it was necessary to consider whether the conversation had actually had a material effect upon the decision reached by the jury. The court rejected that submission, holding that the test to be applied in cases of this kind is that derived from
Re Medicaments and Related Classes of Goods (No 2)
[2001] 1 WLR 700
and
Magill v Porter
[2002] 2 AC 357
, namely, whether a fair-minded, independent and informed observer would conclude that the jury could nonetheless reach a verdict without taking into account, even subconsciously, what they had been told.
18.
The characteristics of the fair-minded, independent and informed observer were summarised by Lord Hope in
Helow v Home Secretary
[2008] UKHL 62
,
[2008] 1 W.L.R. 2416
. Among other things, he or she is not unduly sensitive or suspicious, nor yet complacent, and knows that judges (and jurors) must be, and be seen to be, unbiased. None of that was in dispute. Nor was it in dispute that the independent observer must reach his decision on the likelihood of bias by considering the facts in their context. In this case the judge made some findings about what had, or rather had not, been communicated to the other members of the jury, but being no more than findings based on his own assessment of the evidence, they are not facts of which knowledge can be attributed to the fair-minded, independent and informed observer. He must make his own assessment of the risk of bias based on all the available raw material. Although the judge correctly identified the test to be applied, he failed properly to apply it because he substituted his own view of the facts for that of the fair-minded independent and informed observer.
19.
In our view the fair-minded independent and informed observer would have concluded that there was a real risk in this case that the jury had received information from an extraneous source which it could not put out of its mind, despite the further direction given by the judge at the close of his summing up, and which might adversely affect its view of the appellants. The errant juror’s fiancé had been sitting in court for a significant part of the trial, both when the jury were in court and when they were absent. There was therefore a significant risk that he had obtained information concerning the appellants or the proceedings to which the jury were not intended to have access. The behaviour of the errant juror and her fiancé outside court and some of the texts that she sent him suggest that they were both aware that they were acting in defiance of the instructions to jurors not to discuss the case with anyone outside their own number. The texts themselves show that on some occasions the fiancé told the juror what was going on while the jury were absent from court: for example, that the judge was raising his voice to Victor Mears. The case had been going on for quite a long time and it is reasonably clear that the fiancé was following it with some interest. It is highly likely, therefore, that the two of them regularly discussed it when they were at home or elsewhere in private and the juror’s text to her fiancé to warn him that he was missing the evidence of an important witness, Charlie Cooper, adds further support to that conclusion. That only increased the risk that information of some significance had been passed by her fiancé to the juror herself. The “Guilty” text speaks for itself and we think that one is entitled to approach with some scepticism the juror’s evidence that she had not opened it until she returned home at the end of the afternoon.
20.
The juror herself admitted that she had received texts when in the jury room and had passed on information received from her fiancé on a few occasions. She identified one person to whom she had spoken and two others who were, or may have been, in the vicinity at the time. It seems likely, therefore, that at least one other member of the jury knew that she was receiving text messages and was party to some of the information that was being received. There was no direct evidence that information or opinions derived from discussions between the juror and her fiancé had infiltrated the jury, but for the reasons we have given there was a risk that that had occurred. We do not think that concerns of that kind are capable of being allayed by the fact that when questioned by the judge none of the other jurors admitted to having been told anything. Unfortunately, the question posed by the judge was somewhat more complex than it might have been and did not make it sufficiently clear that communication of information from outside, however, apparently trivial, ought to be disclosed. It is surprising, in the view of the juror’s own evidence that there had been at least some discussion with another juror resulting from the text message traffic, that nothing was drawn to the judge’s attention. It may be, as he said, that nothing had in fact been said to any of them or that whatever was said was so trivial as to have been forgotten; but it is also possible that none of them wanted to answer the question publicly without being given a chance to think about it.
21.
In the light of all the information that had become available by the time the judge had to decide whether to discharge the jury, we reached the clear conclusion that a fair-minded, independent and informed observer, knowing that jurors must be, and must be seen to be, unbiased, would have concluded that there was a real risk that during the course of the trial the jury in this case had received information and views emanating from an extraneous source that it could not put out of its mind. In those circumstances we were satisfied that the appeal had to be allowed and the convictions quashed. | {"ConvCourtName": ["Crown Court at Bristol", "CROWN COURT AT BRISTOL"], "ConvictPleaDate": ["18th February 2011"], "ConvictOffence": ["eight offences under the Regulations"], "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": ["disqualified from acting as company directors for 5 years", "13 months’ imprisonment"], "SentServe": ["also disqualified"], "WhatAncillary": ["disqualified from acting as company directors for 5 years"], "OffSex": ["himself"], "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": ["number of complaints"], "DefEvidTypeTrial": ["Regulation 17 provides a defence"], "PreSentReport": ["data not available"], "AggFactSent": ["revenue from the sale"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellants"], "CoDefAccNum": ["appellants, Victor and Henry Mears"], "AppealAgainst": ["against conviction"], "AppealGround": ["judge’s direction to the jury", "actions of a member of the jury"], "SentGuideWhich": ["Consumer Protection from Unfair Trading Regulations 2008.", "s. 2(2) of the European Communities Act 1972"], "AppealOutcome": ["allowing the appeals.", "convictions were unsafe"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Crown Court At Bristol", "Crown Court At Bristol"], "ConvictPleaDate": ["2011-02-18"], "ConvictOffence": ["eight offences under the Regulations"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["data not available"], "Sentence": ["disqualified from acting as company directors for 5 years", "13 months’ imprisonment"], "SentServe": ["Concurrent"], "WhatAncillary": ["disqualified from acting as company directors for 5 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": ["Public complaints /witnesses"], "DefEvidTypeTrial": ["[Consumer Protection from Unfair Trading Regulations 2008]"], "PreSentReport": ["Don't know"], "AggFactSent": ["Financial gain /value"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["1"], "AppealAgainst": ["against conviction"], "AppealGround": ["judge’s direction to the jury", "actions of a member of the jury"], "SentGuideWhich": ["s. 2(2) of the European Communities Act 1972", "Consumer Protection from Unfair Trading Regulations 2008."], "AppealOutcome": ["convictions were unsafe", "allowing the appeals."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 294 |
Case No.
2005/05753/D4
Neutral Citation Number:
[2007] EWCA Crim 1743
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Wednesday 20 June 2007
B e f o r e:
LORD JUSTICE PILL
MRS JUSTICE DOBBS DBE
and
MR JUSTICE LLOYD JONES
- - - - - - -
R E G I N A
- v -
JASON YORK (NOW) LEE
- - - - - - -
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 S W LESLIE QC and MR S FERGUSON
appeared on behalf of
THE APPELLANT
MISS J MILLER QC and MR M BUTT
appeared on behalf of
THE CROWN
- - - - - - -
J U D G M E N T
LORD JUSTICE PILL:
1. On 22 April 2002, in the Crown Court at Bristol, before Maurice Kay J, Jason York (now known as Jason Lee) pleaded guilty to an offence of murder (count 1). On 30 April, before the same court, he was convicted of attempted murder (count 2). No verdict was taken on the alternative count (count 3) of wounding with intent to do grievous bodily harm. On 1 May he was sentenced to life imprisonment on count 1 and to 8 years' imprisonment concurrent on count 2. His brother, Timothy John Seviour, was convicted of murder on count 1 and attempted murder on count 2. He, too, was sentenced to life imprisonment on count 1 and to 8 years' imprisonment on count 2. The appellant appeals against conviction on count 1, notwithstanding his plea of guilty, by leave of the single judge, who also granted an extension of time of three-and-a-half years.
2. The appellant and his brother had a troubled family history and were both taken into the care of the Social Services. The appellant was aged 22 at the time of the offences and his brother slightly younger. They went to several different foster homes. They usually lived apart from each other. When the appellant was about 16 years old he went to live with Kevin York, the victim in count 2, who at the time of the offences was aged 34. They lived at an address in Trowbridge under a Social Services supported lodging scheme. York was initially the appellant's landlord, but he soon became his official foster carer.
3. The appellant was groomed by York and a homosexual relationship developed between them. There was considerable violence between them at times. In the early days the appellant had been confused about his sexuality, but had later realised he was not homosexual. He said that he felt trapped in the relationship because York had shown him love and care of which he had been short for much of his childhood. The relationship came to an end following an incident in 2001.
4. Timothy Seviour formed a brief relationship with a woman called Elizabeth Hartley (the deceased in count 1). The appellant, Seviour and the deceased were part of the same circle of friends. Seviour ended his relationship with Elizabeth Hartley, having formed one with another woman. The deceased was very upset about that new relationship and arguments took place between them.
5. On 6 May 2001, the appellant and Seviour went out drinking together in Trowbridge. The appellant told his brother what had happened to him while he was living with York. Seviour became extremely angry. They decided to visit York. They returned to the house, collected two knives and drank more alcohol. At about 9pm they entered York's house via an upstairs window and waited for him.
6. York returned home at about 11pm with Elizabeth Hartley. When York was standing at the breakfast bar, the appellant ran through the kitchen with a knife and stabbed him in the chest. Elizabeth Hartley stood up and cried out in alarm, whereupon Seviour attacked her with a knife. York pushed past the appellant and went into the bathroom. The appellant failed to get into the bathroom. He returned to the lounge, where he joined Seviour in an attack on the deceased. York ran out of the bathroom onto the stairs. The appellant and Seviour pursued him. York managed to run upstairs and escape out of the bedroom window. The appellant and Seviour travelled to Bath, where they stayed overnight in a friend's house. They told the friend that they had been involved in a fight in the course of which someone had pulled a knife on them.
7. However, the following evening the appellant telephoned the police and said that he and his brother would like to turn themselves in as they believed that they might have killed a woman.
8. The deceased woman had died from multiple stab wounds. She had suffered 25 deep stab wounds to her face and body, many of which were inflicted with a considerable degree of force and some of which had penetrated internal organs. York had suffered two stab wounds to the chest.
9. The prosecution case was that the appellant went to York's house harbouring deep-seated anger and resentment towards York. The use of a knife and the pursuit of York was evidence that the appellant had intended to kill him. Tragically, it was Elizabeth Hartley who was killed. The prosecution case against the appellant in relation to York was one of attempted murder.
10. The defence case in relation to that count was that the appellant had gone to York's house to tell him how he felt and to frighten him because of all that York had previously put him through. He had not intended to kill anyone on 6 May. It was on that basis that the charge of attempted murder was contested. As indicated, the appellant pleaded guilty to the offence of murdering Elizabeth Hartley.
11. The issue for the jury, therefore, was the narrow one of whether or not the appellant had intended to kill York because for a verdict of guilty on a charge of attempted murder an intent to kill must of course be proved. A verdict of guilty to murder may be reached if the intent is to kill or to cause really serious bodily harm.
12. York gave evidence, a summary of which we have given above. The issue we have indicated was the only one before the jury in April 2002.
13. The defence had available to them at the trial a psychiatric report on the appellant from Dr A R Tomison, a Consultant Forensic Psychiatrist, who had examined him on 6 December 2001. In such circumstances it is frequently the practice that a psychiatric report is obtained from such a source in order to consider defences or partial defences, such as diminished responsibility or provocation, to the charge of murder. Dr Tomison submitted a written report in which he expressed the opinion that the partial defence of diminished responsibility, which would have reduced murder to manslaughter, was not available. Dr Tomison had the case papers before him. He interviewed the appellant and referred to such other material as he saw fit. The trial was conducted by Maurice Kay J in a manner of which no criticism can be or was made. The appellant was represented by Mr John Royce QC (as he then was), a counsel very experienced in criminal cases. There can be no criticism of those who represented the appellant at the time for proceeding as they did and for advising the appellant that no complete or partial defence was available. It was on that basis that the appellant pleaded guilty to the offence of murder. He was found guilty of the offence of attempting to murder York.
14. While the appellant was in custody he was visited by a Christian Church worker. It was suggested that further enquiries should be made as to the appellant's mental state at the time of the killing. As a result the appellant consulted solicitors, who instructed another distinguished Consultant Forensic Psychiatrist, Dr H Needham-Bennett, to examine the appellant and to report.
15. We accept that the fact that the appeal is brought has in no way been contrived by the appellant. He has acted in good faith in the action which he has taken. It is also clear that this is not one of those cases where a tactical decision was taken not to raise the partial defence of diminished responsibility at the time because it might prejudice the overall conduct of the defence case. There was no evidence available which could have supported any such defence or could have supported a suggestion that a not guilty plea should be entered to murder on the basis of diminished responsibility.
16. Dr Needham-Bennett interviewed the appellant on 11 and 16 March 2005, about four years after the events which led to the death. He produced a report dated 4 October 2004, which deals with a possible defence of diminished responsibility and also a possible partial defence of provocation. It is clear that Dr Needham-Bennett rightly followed such avenues as he could. In the event the possibility of a defence of provocation has not been pursued, in our judgment rightly so, on the available evidence.
17. However, as to diminished responsibility, Dr Needham-Bennett's conclusion in his first report was:
"If my opinion that Mr Lee had a borderline personality disorder is correct, this mental disorder in my opinion amounts to an abnormality of mind."
We will refer to the report in more detail a little later.
18.
Section 2
of the
Homicide Act 1957
provides:
"(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing."
The burden of proving diminished responsibility is upon a defendant. If successful, it means that the conviction would be of the lesser offence of manslaughter and not of murder.
19. On behalf of the appellant Mr Leslie QC submits that, on the basis of Dr Needham-Bennett's report, there should be a retrial of the issue of murder. He further submits that, if there is such a retrial, it would also require a retrial of the attempted murder charge because otherwise the jury would be prejudiced in considering diminished responsibility by the verdict of attempted murder of which they would be made aware.
20. Having received the report of Dr Needham-Bennett, the prosecution obtained further reports from Dr Tomison. He first reported on 20 June 2006 and, following a further interview with and an examination of the appellant, on 24 October 2006. The appellant's solicitors obtained a further report from Dr Needham-Bennett. It is dated 25 February 2007 and is revised to include references on 1 May 2007. Dr Needham-Bennet comments upon the report of Dr Tomison. He also did a very considerable amount of work on the medical and social security records on the appellant. In his second report he has set out the extracts from those records, which he considers to be relevant to the present issue. He has clearly gone to great trouble in order to do that. Although he refers to the state of the records as "chaotic", he has had regard to them. Dr Tomison has submitted a further report dated 16 May 2007 in reply to that of Dr Needham-Bennett.
21. Mr Leslie's submission is that, in considering whether the appeal should be allowed, the fresh evidence of Dr Needham-Bennett should be admitted.
Section 23
of the
Criminal Appeal Act 1968
provides that the court may "if they think it necessary or expedient in the interests of justice" admit evidence such as this.
Section 23(2)
provides that, "in considering whether to receive any evidence, the court shall have regard in particular to", and there is then a list of four items. The disputed one in the present appeal is
section 23(2)
(b):
"whether it appears to the court that the evidence may afford any ground for allowing the appeal."
It is accepted by the Crown that the other considerations to which the court shall have particular regard are satisfied in this case.
22. At the invitation of Mr Leslie, the court decided to hear the evidence of both Dr Needham-Bennett and Dr Tomison de bene esse, before deciding whether it is necessary or expedient to admit that evidence in the interests of justice.
23. For the prosecution Miss Miller QC submits that the authorities place a high burden on an appellant, in circumstances such as these, in obtaining an order that evidence should be admitted. She submits that the burden has not been satisfied in this case. She has referred to the authorities which follow from this point having arisen. In
R v Borthwick
[1998] Crim LR 274, the court held that if there was overwhelming or clear evidence that a defence of diminished responsibility would have succeeded, and that it was the mental illness itself that caused the defence not to be run, the interests of justice would seem to require the substitution of a manslaughter verdict, or at least a retrial. In
R v Ahluwalia
(1993) 96 Cr App R 113
, Lord Taylor of Gosforth CJ put it in this way at page 142:
"Ordinarily, of course, any available defences should be advanced at trial. Accordingly, if medical evidence is available to support a plea of diminished responsibility, it should be adduced at the trial. It cannot be too strongly emphasised that this court would require much persuasion to allow such a defence [diminished responsibility] to be raised for the first time here if the option had been exercised at trial not to pursue it."
24. In
R v Neaven
[2006] EWCA Crim 955
,
[2007] 2 All ER 981
, the court considered the authorities and drew the following guidance from them. In the judgment of the court Rix LJ stated at paragraph 41:
"(1) That the obligation to advance his whole case at trial, and the scepticism directed towards tactical decisions remain fundamental. (2) That it therefore takes an exceptional case to allow it to be in the interest of justice to admit and give effect to fresh evidence, not relied on at trial, designed to promote a new defence of diminished responsibility. However, subject to this, (3) each case turns on its own facts. Therefore, (4) where the evidence of mental illness and substantial impairment is common ground or otherwise clear and undisputed, it may be in the interests of justice (in the absence of opposition from the appellant himself -- see
Kooken
) to admit it. (5) This is especially so if the potential vice of tactical decisions is met by undisputed evidence that such decisions were affected by the defendant's illness itself. (6) The emerging only after conviction of evidence of mental illness and of the potential of a defence of diminished responsibility is of little weight, unless perhaps there is unanimity as to the conditions necessary for such a defence at the time of the offence."
We have indicated that the question of tactical decisions does not arise in this case. Miss Miller relies on the statements in the authorities that the evidence of mental illness or substantial impairment must either be "common ground or otherwise clear and undisputed". In the present case she submits that it is neither unclear nor undisputed and that the evidence of Dr Tomison, to which we will refer, is to a quite different effect.
25. Mr Leslie QC for the appellant submits that the evidence available from Dr Needham-Bennett is such that a jury should try the issue which has now arisen. The evidence of Dr Needham-Bennett, a highly qualified source and given in good faith, required that there be a retrial. He relies on the decision of this court in
R v Gay and Gay
[2006] EWCA Crim 820
, where evidence from a medical expert provided a hypothesis as to the cause of death which amounted to a plausible alternative explanation of the central medical phenomenon in the case. The court stated:
"96. The fact is, therefore, that the science was there, but its potential significance was not recognised by those involved in the trial. This was not through any want of diligence by the appellants or their legal team. It was only subsequently that [the new legal expert] was approached, by a different legal team, and expressed the opinions he has now given in evidence to us. In all the circumstances we take the view that a reasonable explanation does exist in this case for the failure to adduce the evidence at trial."
That case is clearly distinguishable on the basis that the present situation arises not through any medical or other scientific discoveries; it arises because a different medical opinion on an issue which had been considered in 2001 has now become available. Mr Leslie submits, however, that the principle stated in
Gay
should apply to the present situation.
26. Mr Leslie also relies on the decision of this court in
R v Martin
[2002] 1 Cr App R 27
. That was the highly publicised case where the appellant shot two people who were burgling his farmhouse. Both were injured and one died. At the trial, a consultant psychiatrist had found no evidence that Martin was suffering from depression or a mental illness. Martin had point-blank refused (paragraph 55 of the judgment) to co-operate with a court-appointed psychiatrist. On the hearing of the appeal the same consultant psychiatrist and another consultant psychiatrist held to the same view. But a different psychiatrist gave evidence for the defence that Martin suffered from, and was suffering at the time of the offence from, a long-standing paranoid personality disorder which could be classified as an abnormality of the mind, arising from inherent causes within the terms of
section 2
of
the 1957 Act
. Having considered the medical evidence, the court allowed the appeal and substituted a verdict of manslaughter for one of murder.
27. The series of authorities more recently considered in
Neaven
was not cited to the court in
Martin
. In the unusual and highly charged circumstances of that case, we do not doubt that the court was entitled to reach the conclusion it did. But we find no general principle emerging from the case which can be applied either generally or in the present case.
28. We follow the line of authorities summarised in
Neaven
. The principle of finality and of all issues being raised at a single trial is an important one in the administration of justice. We accept, however, the possibility that a court, having heard psychiatric evidence, even if based on a much later examination and even if disputed, which leads the court to form a clear view that the manner of raising the defence at trial is demonstrated to have been unsatisfactory, or the evidence then available is demonstrated to have been unreliable, the court would act in an appellant's favour. Careful scrutiny of the proposed fresh evidence is, however, required.
29. The approach of the court in circumstances such as there has been demonstrated in the House of Lords in
Pendleton
[2002] 1 WLR 72
. The House considered the way in which this court should approach the situation in which fresh evidence has become available since a trial. The court upheld the approach which had been followed in the earlier case of
Stafford v Director of Public Prosecutions
[1974] AC 878
, expressed in the speech of Lord Dilhorne. Giving the leading judgment in
Pendleton
, Lord Bingham of Cornhill cited the observation of Viscount Dilhorne. The House in
Pendleton
held that the principles expressed in
Stafford
were correct and a submission that the Court of Appeal had asked the wrong question, by taking as the test the effect of the fresh evidence on their minds and not the effect that the evidence would have on the mind of the jury, was rejected. Lord Bingham stated:
"I am not persuaded that the House laid down any incorrect principle in
Stafford
, so long as the Court of Appeal bears very clearly in mind that the question for its consideration is whether the conviction is safe, and not whether the accused is guilty."
Having considered the submissions of counsel in
Pendleton
, Lord Bingham stated:
"For these reasons it will usually be wise for the Court of Appeal in a case of any difficulty to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe."
Lord Mackay of Clashfern, Lord Steyn and Lord Hope of Craighead agreed with Lord Bingham. Lord Hobhouse of Woodborough put it somewhat differently. He cited the judgment which Lord Bingham, when Lord Chief Justice, had given in
R v Jones
[1997] 1 Cr App R 86
, at 94. He considered the approach which this court should follow and concluded:
"It is for the Court of Appeal to answer the direct and simply stated question: Do we think that the conviction was unsafe?"
30. The present case is distinguishable from
Pendleton
on its facts in that the medical evidence upon which reliance is sought to be placed is based on a medical examination several years after the trial and the events considered at the trial. We will consider the implications of that later in this judgment.
31. We turn to the medical evidence. Mr Leslie invites the court to bear in mind the human tendency, to which it is suggested that Dr Tomison may be subject, now to stand by an opinion already formed and expressed in 2001. He also invites us to bear in mind that in 2001 Dr Tomison, having found no abnormality of mind, did not set out in his report his reasons for that negative view and did not examine all the documentation which has subsequently come to light. The prosecution say that, having found that there was no condition which could bring the case within
section 2
of
the 1957 Act
, Dr Tomison did not need to set up a proposition merely to destroy it. Mr Leslie submits that the guarded way in which, as we shall see, Dr Needham-Bennett has expressed his opinion, should not lead the court to conclude that the opinion was a weak or an unsound one.
32. Both doctors express an opinion as to the current medical condition of the appellant. The opinions are not significantly at variance. At page 16 of his first report, Dr Needham-Bennett stated that at the time of his interviews the appellant
"appeared well. He reports that some days are better than others, and on occasions he feels very low in mood. ....
Mr Lee advises me that he is now a qualified fitness instructor. He is involved in a Degree course in Social Sciences with the Open University and would like to learn a trade while in custody."
33. In his report dated 24 October 2006, Dr Tomison put in this way:
"He presented as a tall young man of athletic build, well turned out at interview, whose behaviour was entirely unremarkable, as was examination of the form and content of his speech and thought processes. His mood was normal and appropriate to the situation. He is clearly of good intelligence and had a good insight and awareness of his problems both at the material time and how his earlier life had shaped things.
He has clearly used his time in custody to full advantage, reflected long and hard on his various problems and is working to a sensible and mature plan to help him address these issues on a wide front."
34. The difficulties which the appellant faced in his earlier life are well documented in the medical reports. There is no need to spell them out in further detail. It is clear that the relationship with York was very damaging to him.
35. Having considered the background, Dr Needham-Bennett put it in this way in his report of 4 October 2005:
"9. It is against this emotionally impoverished background that Mr Lee first came into contact with Kevin York, a man I am told given a caring role to help him establish autonomy and independent living skills. What happened, according to Mr Lee, is quite the opposite.
10. At this point Mr Lee was using drugs, had committed a serious offence and was frightened of being caught and imprisoned. He was hoping to find a 'family' and both wanted, and needed consistency in his life and a father figure on whom he could rely. He was by his account naive about homosexuality. He can at best be described at this stage as being vulnerable.
11. Initially Kevin York appeared to be the father figure that Mr Lee hoped to find. If Mr Lee is to be believed, what followed seems to be a closing of their relationship with late night chats, with Kevin York reporting special abilities of telepathy and spiritual contact to help people. He shared confidences with Mr Lee of his own abuse. He suggested outings to the pub and chose how Mr Lee should dress. He gradually introduced non-sexual physical contact (brushing his hair) and then body massage, culminating in sharing a bed and then anal intercourse. Mr Lee found this distressing though he felt emotionally dependent on Kevin York and powerless to say 'No.'
12. There followed a turbulent homosexual relationship and it appears common ground between Mr Lee and Kevin York that the relationship was volatile and that after their relationship became sexual, there was violence, arguments and threats from one to another. (Witness statement of Kevin York, 8.05.01: [his drug use and requests for money and stealing] caused numerous arguments and I punched him on a few occasions.... He quite often threatened me with a knife').
13. Mr Lee describes a breakdown of trust in Kevin York after the relationship became sexual and he describes subordinating his own sexual preference in favour of the maintaining of what he later conceptualised as an abusive relationship. He reports that he was verbally, sexually and physically abused by Kevin York.
14. He started to resent him, though remained reliant on him, both emotionally and on occasion for work and drugs. His mood deteriorated and he eventually cut himself and took overdoses. The self-inflicted cuts were not suicidal in nature but were to help expunge his self-loathing; the overdoses were taken (with one exception) in a spirit of carelessness as to whether he lived or died.
15. He tried to leave Kevin York but found himself drawn back against his better judgment. On one occasion he reports running away to his mother. Ultimately he concluded that the only way to be safe, to get away without going back to Kevin York, was to kill him. He was able to recognise his own emotional dependency and such drastic measures suggest the degree to which he felt controlled by a man whom he had come to see as his abuser.
16. At the time of the offence he was emotionally aroused, angry and fearful. There are varied accounts of his level of intoxication though it appears that he was under the influence of stimulant drugs and alcohol at the time of the offence.
17. The offence appears to have been planned with his brother and Mr Lee took some degree of comfort in the planning stage to hear that his brother, by dint of the plans, believed that Kevin York was his abuser. In this regard he was looking for external validation of his abuse. This is further exemplified in Mr Lee's desire to tie Kevin York up and get him to admit to what he had done or at least hear Mr Lee's own opinion in relation to abuse.
18. I note in relation to the offence that Mr Lee and his brother went armed with knives, cut the phone line, Mr Lee adopted a rudimentary disguise and they discussed ways to get rid of the body and further violent plans should anyone be with Kevin York.
19. During the assault itself it appears that Mr Lee initially focused his anger on Kevin York though later switched his violence to 'Lizy'. This remains perplexing for him, as he reports no ill feelings to her. I note, however, that he had been emotionally close to her, that Mr Lee values emotional closeness in a relationship, and felt that his brother had taken advantage of the situation in having a short sexual relation with her, without really wanting a relationship. It seems clear that the initial plan was to kill Kevin York and I note that the prosecution accepted this point. I cannot explain why Mr Lee transferred his violence from Kevin York to Lizy except as previously noted, that there may have been underlying feelings of hostility, or that she was simply there, and Mr Lee, in the context of alcohol and simulant use, felt the need to rid himself of extreme anger, and did so in a violent way."
Dr Needham-Bennett went on to express his opinion at page 20 as follows:
"With the same provisos relating to the information I have received, it seems likely that Mr Lee at the time of the offence had an abnormal personality, this caused by the factors in his upbringing described in detail in the report.
Whether this can be 'reduced' to a single diagnosis of a specific personality disorder is difficult to say conclusively.
Given his history of overdoses, self-cutting, mood disturbance, (arguably) confusion over sexual identity, emotional dependency, mistrust of others, and him repeatedly going back to an intense and unstable relationship to avoid abandonment, it seems likely that he was suffering from an emotionally unstable personality disorder of a borderline type.
He has also some features of a dependent personality disorder where he subordinated his own needs to another on whom he was dependent, and showed undue compliance with their wishes, and discomfiture when sensing abandonment.
These are defined in ICD 10, and I append a copy."
(That is a reference to the International Classification of Diseases, 10th revision, from which we have been supplied with the relevant pages.) Under the heading "Diminished Responsibility" Dr Needham-Bennett stated:
"If my opinion that Mr Lee had a borderline personality disorder is correct, this mental disorder in my opinion amounts to an abnormality of mind.
In relation to this, whilst it is possible that his ability to exercise willpower to control physical acts was reduced by dint of his personality, I note voluntary intoxication at the time of the offence and the ability to plan the offence.
Whether such abnormality of mind substantially impaired his mental responsibility for his acts is a matter for the court.
Current Mental State
I am asked to comment on his current mental state.
He still reports difficulty trusting people. He appears to be trying to better himself in prison and expressed great regret at his actions.
He reports a strong desire to remain drug free.
There is no current evidence of an affective disorder or psychotic illness.
In relation to personality traits that may have amounted to a borderline personality disorder, this appears much improved. In this regard I note abstinence from drugs, the passage of years and separation from his adverse life circumstances."
36. In his second report Dr Needham-Bennett sets out those extracts from the documentation he has been at pains to examine, which are relevant to the issue before the court. Reference to some of these was made in the course of the hearing and when he gave oral evidence. Reference is made to Dr Tomison's report and Dr Tomison's statement that he (Dr Needham-Bennett) had not relied on features of dependent personality disorder in later arguing that Mr Lee had an abnormality of mind. Dr Needham-Bennett says:
"He is correct to point this out. In discussing Diminished Responsibility [in his earlier report dated 4.10.05] I should have included that:
'if my opinion that Mr Lee had a borderline personality disorder,
and features of a dependent personality disorder
, is correct, this mental disorder in my opinion amounts to an abnormality of mind.'"
In dealing with Dr Tomison's report, to which we will refer, Dr Needham-Bennett stated:
"I acknowledge that whilst in custody, all available reports suggest that he has been polite and courteous, well behaved and utilised counselling and educational opportunities.
However, professional staff indicate that he has felt intimidated by others, angered, and is described as being emotionally fragile."
37. We have been referred to the references. Very few of them support the view that the appellant has behaved other than sensibly and well while in custody. There are a limited number of adverse references. The one on which particular reliance is placed is a note of a mental health nurse of 4 August 1997, which precedes the offence. It refers to the appellant's "quite marked low self-image, self-esteem, deficits in the area of problem-solving, some lack of social skills and some emotional difficulties based on his feelings about the past". The entry concluded that "there was no definable mental illness".
38. With the help of counsel the entries have been analysed and views upon them have been expressed by both doctors. Dr Needham-Bennett says:
"It is my opinion that these observations are consistent with residual symptoms caused by an abnormal personality."
Dr Tomison makes the point that, in considering the bulk of the documentation available, there are very few entries which suggest anything other than a normal mental state.
39. In relation to Dr Tomison's opinion as to the appellant's "good prison behaviour", Dr Needham-Bennett states:
"It is my opinion that this is unsurprising -- he feels safe with clear external boundaries and constraints; he has flourished in a custodial setting where institutional dependency and subordination are required. Similarly he has had no real opportunity to have further intense and unstable relationships.
....
I would not now describe Mr Lee as suffering from a personality disorder using the description within the International Classification of Diseases, 10th revision.
In my opinion this does not invalidate my earlier diagnostic formulation and I would state he remains a very troubled young man, still preoccupied with, and troubled by his offending, his relationship with Kevin and his mother's rejection.
I accept that a weakness of my argument is that much of the evidence for the dependent and borderline aspects of Mr Lee's personality comes from the time that he was involved with Mr York.
Given that his relationship with Mr York commenced at the age of 16 and terminated with the offence, this was a highly important and significant part of his life. In many ways it is inevitable that much of my diagnostic formulation was based on this period.
....
He grew up in a chaotic and inconsistent environment. He was abused and lacked any consistent good adult role model. He was emotionally hurt by his alcoholic mother and her rejection of him. He became angry, aggressive and violent.
There are mixed reports about how he interacted emotionally with others but it seems from early reports that he tended to push others away. It was later and in association with drug use, an abusive relationship and further severe family pressures that we see the emergence of emotional dependency."
Dr Needham-Bennett added:
"On the issue of whether Mr Lee had an irresistible urge to take any substance on the day in question, Dr Tomison and I agree that he did not."
Dr Needham-Bennett set out the features which he finds in the appellant's personality and stated:
"I use these arguments to state: 'if my opinion that Mr Lee had a borderline personality disorder is correct, this mental disorder in my opinion amounts to an abnormality of mind'. I stated that whether such abnormality of mind substantially impaired his mental responsibility for his acts is a matter for the court. I cannot go beyond this.
....
My opinion was not half-hearted. [That is reference to a comment by Dr Tomison.] It sought to draw attention to diagnostic uncertainty in relation to Mr Lee's personality. I am unable to assert my opinion with complete certainty."
40. In his first report dated 20 June 2006, before he had examined the appellant, Dr Tomison said:
"I stand by my original report [of 2001]. I remain of the opinion that there is no evidence to suggest that any defence based on an irresistible urge to drink alcohol (or take other substances) would have been open to him.
....
.... Having said that, the evidence as to the day in question demonstrates a considerable degree of pre-planning and no single provoking incident which resulted in a sudden and immediate loss of control.
If Mr Lee's account is believed, and I myself did not doubt its veracity, then there seemed to me to be some mitigating factors in respect of the non-fatal assault and, by extension, given that the killing arose out of the initiation of the assault on Mr York senior, matters which could reasonably be taken into account when setting any tariff in respect of the life sentence."
We will return briefly to that question.
41. Both doctors were thoroughly examined and cross-examined by experienced counsel. Dr Needham-Bennett accepted that the relevant offence had been planned, but said that that made no difference to the issue of abnormality of mind. He noted the consistency between the accounts which the appellant had given at different times. That indeed is a feature of the material available to the doctors. Dr Needham-Bennett maintained his opinion that the features he found showed a personality disorder of the borderline type and also traits of a dependent personality disorder, those conditions being set out at F60.3(1) and F60.7 of the International Classification of Diseases document. His conclusion was that there was borderline-type emotional unstable personality disorder, with features of a dependent personality disorder. The doctor accepted that the appellant was much improved at the time of his examination. No one has said that he was ever mentally ill. It is difficult to say whether he continues to have a personality disorder. Some of the references in the records demonstrated symptoms of a residual personality disorder, in the doctor's opinion. This type of personality disorder does well in a controlled environment where there is no opportunity to engage in emotionally charged relationships.
42. However, the appellant was still a very troubled man. The doctor detailed the strengths and weaknesses of the opinion he was putting forward; he had ultimately come to the conclusion that the appellant had a personality disorder at the material time (the time of the offences). He could not say, if the appellant was removed from a controlled environment, what would happen. Whether there was a personality disorder depended on the threshold that was taken. The doctor could not say unequivocally that a personality disorder was now present. He did not know.
43. When cross-examined, it was put to Dr Needham-Bennett that the first time he had examined the appellant was in March 2005, that was four years after the offence. He accepted that that put him at a disadvantage in assessing the appellant's mental condition at the time of the offence. He repeated that, while in his view it was surprising that there had been such an improvement in the appellant's condition, this was not an anti-social personality disorder where outbursts of anger could be expected within the controlled environment. He accepted that all the outbursts of anger in the past had related to York, and that everything had come out of that relationship. He accepted that the prison records showed an improved condition. In his opinion the threshold of personality disorder at the time of the offence had been breached. He said, "In my opinion he was likely to have a personality disorder".
44. Dr Tomison also gave oral evidence. He did not find evidence of dependency at an earlier stage, although he accepted that on this difficult question a different opinion could be reached. Whatever view is taken on that, it did not affect his clinical opinion. When he examined the appellant in 2001, he was alive to the possibility of personality disorder. He approached the material before him and the examination on that basis. He found no significant change in the appellant's mental state between 2001 and 2005. In his view the opinion he had formed in 2001 was reinforced by the events of the subsequent five years. He accepts that diagnosis can be difficult. Clinical features can be clouded by substance abuse and a range of social circumstances. He tried to assess personality by stopping other factors coming into it. The appellant's behaviour in custody and the absence of any misuse was striking. The symptoms had, in his opinion, all but vanished. There was an absence of features which would support the existence at any time of a personality disorder. Such traits of character were imbued. It would be extremely surprising if they had disappeared in the few months between the offence and his examination late in 2001. It would be extremely unusual for that process to occur over a matter of a few months -- indeed, unheard of. It is necessary to strip out other factors such as the bad relationship. The entries in the record upon which reliance had been placed were well short of demonstrating a personality disorder. If there was a personality disorder, he would expect problems to present themselves in a protected environment such as a prison.
45. The relationship with York had been profoundly damaging. The appellant had been subjected to considerable abuse. The features which arose were a direct consequence of that relationship. He is now in independent adulthood. Dr Tomison said that he had admiration for him in the light of the tragedies which had occurred. He had considerable sympathy for him and for the way in which he had been treated during his younger years. The doctor commented, and we record it (although it is entirely irrelevant to our consideration), that he was surprised that the tariff that had been set for a minimum custodial period was set as high as it had been. In our judgment there is no doubt about the open-mindedness of Dr Tomison's approach. He was in no way hostile to the appellant. He fully acknowledged the problems which the appellant had faced and the damage which had been done to him in the course of earlier relationships. Those have been profoundly damaging and will continue to affect him during his adult life.
46. In cross-examination he repeated that the abnormalities said to be present would, if they existed, express themselves in custody. They may be expressed in a variety of situations. They were pervasive. Many people who have had bad childhood experiences do not develop personality disorders, though others do. He considered that he had sufficient information to have expressed the opinion he did and to believe in its correctness in 2001. There were a number of things still to be addressed to assist the appellant, but there was no personality disorder. Such disorder required a persistence of a range of problems over time and in a range of situations. They were characterised by continuity. In this case there was no continuity of such symptoms. There was a lack of pervasiveness and the appellant's condition was now good. He had been in damaging social circumstances, but the features of personality disorder, their persistence and pervasiveness in a broad range of situations, were not present.
47. We have considered carefully the evidence which is before the court both in relation to the events of 2001 and the medical opinions expressed. Dr Tomison had the advantage, as was acknowledged, of having examined the appellant during the same year as the offence at the time of which it is now claimed on his behalf that he had diminished responsibility within the meaning of the section. We have considered the records and the evidence about the current condition of the appellant, along with the opinions on symptoms of personality disorder, and what features are present when such a disorder exists and in what circumstances. Both doctors have assisted the court carefully and in good faith. Dr Tomison's opinion has been firm throughout. It is based on an examination conducted near the time of the offence and upon examination now. He has commented upon Dr Needham-Bennet's findings, which are tentative in certain respects. Dr Needham-Bennett was prepared to acknowledge the difficult issues involved and referred to the difference in the view of thresholds and to his surprise at the improvement which has occurred if his view is correct.
48. We have found the evidence of Dr Tomison wholly convincing. In our judgment there is no real prospect that the appellant had a personality disorder amounting to abnormality of mind at the time of the offence when he presented the personality and behaviour he did to Dr Tomison later in the same year. In our judgment subsequent history has confirmed Dr Tomison's opinion. He accepts that personality disorder may be treated and improvements may be achieved. However, we accept his conclusion that the appellant's behaviour since the offence and his present condition (which substantially is agreed between the doctors) are inconsistent with his having had a personality disorder amounting to an abnormality of mind whether of the emotionally unstable, borderline type, or of the dependent type, or a combination of both.
49. We have regard to the absence of that continuity of the condition, that persistence and pervasiveness in a broad range of situations, which we are satisfied would be required if that diagnosis were to be accurate.
50. We have referred to the approach which this court should take to an application for fresh evidence and to material which had been placed before. It has been considered de bene esse with a view to deciding whether it should be admitted, which depends on the test in
section 23(1)
(b) of
the 1968 Act
. There is a dimension in this case in additional to those considered in
Pendleton
. When making the decision, which it is our duty to do, whether the verdict is safe, the court is not considering the possible impact of fresh evidence which could have been before the jury which made the decision, along with the evidence which was in fact before it. The proposed evidence is based on an examination of the appellant several years after the jury reached their conclusion. The court needs to analyse it with a view to considering its impact on the safety of a verdict, reached on the evidence before the jury, the defence having decided, and rightly decided, on the then available evidence, not to run the defence of diminished responsibility. In our judgment, no doubt is cast upon the safety of the verdict.
51. The above approach is consistent with the important principle that matters should be raised at a single trial. The decision as to safety must be reached before the question of retrial is considered, as also stated in
Pendleton
. The procedure which the court is required to adopt is not intended to give a second opportunity to deploy evidence available at the time of the trial in a different or better way and the case has not been put before us on that basis. However, even if we were to consider the impact that Dr Needham-Bennett's evidence would have at a retrial, we do not consider it to be a real possibility that it would undermine the evidence of Dr Tomison, or that the verdict would be apparent.
52. This case has been strongly argued on the appellant's behalf by Mr Leslie and we have had an opportunity, with counsel's help, to consider the material before us. For the reasons we have given we have come to the conclusion that the evidence should not be admitted. We have come to the conclusion that the verdict is a safe verdict. Accordingly, the appeal against conviction is dismissed.
_____________________________________ | {"ConvCourtName": ["Crown Court at Bristol"], "ConvictPleaDate": ["22 April 2002"], "ConvictOffence": ["(count 3) of wounding with intent to do grievous bodily harm", "murder (count 1)", "attempted murder (count 2)"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["22 April 2002,"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["data not available"], "Sentence": ["sentenced to life imprisonment on count 1 and to 8 years' imprisonment concurrent on count 2."], "SentServe": ["concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["appellant was aged 22"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["address in Trowbridge"], "OffMentalOffence": ["as being vulnerable."], "OffIntoxOffence": ["drank more alcohol.", "Mr Lee was using drugs"], "OffVicRelation": ["soon became his official foster carer."], "VictimType": ["Kevin York, the victim in count 2", "woman"], "VicNum": ["Kevin York, the victim in count 2,", "Elizabeth Hartley (the deceased in count 1)."], "VicSex": ["he", "woman"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["address in Trowbridge"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["turn themselves in as they believed that they might have killed"], "DefEvidTypeTrial": ["defence case in relation to that count was that the appellant had gone to York's house to tell him how he felt and to frighten him", "psychiatric report on the appellant"], "PreSentReport": ["data not available"], "AggFactSent": ["two knives"], "MitFactSent": ["troubled family history", "vulnerable."], "VicImpactStatement": ["data not available"], "Appellant": ["appellant"], "CoDefAccNum": ["His brother"], "AppealAgainst": ["against conviction on count 1"], "AppealGround": ["the fresh evidence of Dr Needham-Bennett should be admitted."], "SentGuideWhich": ["Section 2 of the Homicide Act 1957"], "AppealOutcome": ["against conviction is dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["the evidence should not be admitted."]} | {"ConvCourtName": ["Crown Court At Bristol"], "ConvictPleaDate": ["2002-04-22"], "ConvictOffence": ["(count 3) of wounding with intent to do grievous bodily harm", "attempted murder (count 2)", "murder (count 1)"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["22 April 2002,"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["data not available"], "Sentence": ["sentenced to life imprisonment on count 1 and to 8 years' imprisonment concurrent on count 2."], "SentServe": ["Concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["22"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "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": ["Offender admits"], "DefEvidTypeTrial": ["Mental Health / Insanity", "Offender reasons actions"], "PreSentReport": ["Don't know"], "AggFactSent": ["two knives"], "MitFactSent": ["Offender was vulnerable"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["1"], "AppealAgainst": ["against conviction on count 1"], "AppealGround": ["Fresh evidence"], "SentGuideWhich": ["Section 2 of the Homicide Act 1957"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["the evidence should not be admitted."]} | 267 |
No:
201500434/C5-201500435/C5
Neutral Citation Number:
[2015] EWCA Crim 952
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 7th May 2015
B e f o r e
:
PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR BRIAN LEVESON)
MR JUSTICE HICKINBOTTOM
MRS JUSTICE THIRLWALL DBE
- - - - - - - - - - - - - - - - - - -
R E G I N A
v
PAUL GOWANS
BARRY KENNETH HILLMAN
REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION UNDER SECTION 9 OF THE CRIMINAL APPEAL ACT 1995
- - - - - - - - - - - - - - - - - - -
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 S Russell-Flint QC
appeared on behalf of the
Appellant
Mr S Denison QC
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: On 24th August 2001 in the Central Criminal Court before His Honour Judge Stephens QC and a jury, these appellants were convicted by majority verdict of murder. Both were sentenced to life imprisonment. In relation to Paul Robert Gowans, now aged 42, the period of 13 years was specified pursuant to the provisions of what later became section 269(2) of the Criminal Justice Act 2003. In relation to Barry Kenneth Hillman, now aged 35, the period of 11 years was specified.
2.
On 10th December 2003 the Full Court (Kay LJ, Douglas Brown J and Sir Michael Wright) dismissed the appellants’ appeals against conviction. These convictions have now been referred to this court by the Criminal Cases Review Commission, it having established that consent to the prosecution had not been provided by the Attorney-General.
3.
The background can be summarised very shortly. On 29th January 2000 the appellants attacked and robbed Vytautas Jelinskas, a pizza delivery man. During the robbery he was kicked to the head, sustained a subdural hematoma to the left side of his cranium and was left in a comatosed state from which he never recovered.
4.
On 14th August 2000 both men pleaded guilty to robbery and on 16th August both were convicted of causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861, each man receiving a substantial term of imprisonment. Three days after the convictions, the victim contracted an infection and died of septicaemia. As a result both men were charged with murder. The prosecution case was that the appellants had subjected the victim to a vicious assault in which he sustained brain damage that led to his death 6 or 7 months later. The victim had to undergo invasive procedures as a result of the injuries and these carried a risk of infection. These procedures would not have been required but for the acts of the appellants.
5.
The defence case was that there was insufficient evidence to show the acts of the appellants had been a significant cause of the death of the victim and that the original injury did no more than set the scene in which another cause of death had come about. Thus, the issue for the jury turned upon causation and detailed medical evidence was adduced in relation to that issue. The jury having convicted, this court reviewed the convictions and, as we have recounted, dismissed the appeal. Both men then commenced to serve their sentences of life imprisonment.
6.
It was, we are told, Mr Hillman who referred the case to the Criminal Cases Review Commission on the grounds, we understand, of fresh medical evidence. In the course of its review the Criminal Cases Review Commission undertook a check to ensure that the Attorney-General had given consent for the prosecution for murder under the Law Reform (Year and a Day Rule) Act 1996. That consent was required because section 2 of the Act states that:
"(1)Proceedings to which this section applies may only be instituted by or with the consent of the Attorney General.
(2)This section applies to proceedings against a person for a fatal offence if—
...
(b)the person has previously been convicted of an offence committed in circumstances alleged to be connected with the death."
7.
Having made enquiries both with the Crown Prosecution Service and the Attorney-General's Office, there is no record of an application having been made for the Attorney-General's consent in relation to the prosecution of these appellants for murder and no record of consent having been sought or granted.
8.
Mr Simon Denison QC, for the Crown Prosecution Service, does not challenge that conclusion. Although there is no precedent identified where the grounds of appeal were a failure to obtain the Attorney-General's consent to institute proceedings under the Law Reform (Year and a Day Rule) Act 1986, a failure to obtain permission to institute proceedings for other offences in other circumstances has resulted in proceedings being declared a nullity. Thus,
R v Angel
[1968] 1 WLR 669, the defendant was convicted of offences of gross indecency and buggery with a young boy under section 8 of the Sexual Offences Act 1967. The consent of the Director of Public Prosecutions was required for the institution of such proceedings but had not been obtained. The Court of Appeal allowed an appeal stating the proceedings were a nullity without the consent of the DPP.
9.
Similarly in
R v Pearce
[1981] 72 Cr App R 295
, a defendant charged with incitement to racial hatred, contrary to section 70 of the Race Relations Act 1976, the Attorney-General's consent was obtained. In the event the indictment was amended to allege a conspiracy to incite racial hatred the Court of Appeal concluded that the conviction for the conspiracy offence could not be sustained on the basis the Attorney-General had not given separate consent for this prosecution. In the circumstances, following the decision of this court in
R v Booth
(1999) 1 Cr App R 457, we declare that the conviction and judgment be set aside and annulled. This is on the basis that the irregularity in failing to obtain the Attorney-General's consent vitiates the entire trial.
10.
The main issue which has been argued before this court has not been that conclusion; it has rather been whether the court should order a venire de novo or exercise its discretion that the appellant should not be tried again. On the face of it the grounds for ordering a venire de novo and thus a trial are extremely strong. These appellants were properly charged with murder, the consequences following conviction being lifelong, not merely in the form of the mandatory period in custody, pending a decision of a Parole Board following the conclusion of the minimum term, but also because of the life licence which permits the State to monitor the continued conduct of all those subject to life sentences.
11.
Mr Denison argues that it is in the public interest that those charged with murder should be tried and that the delay, although of substance and not the fault of these appellants, should not prevent that trial from taking place.
12.
Mr Russell-Flint QC, for the appellants, submits that this would in fact be the third occasion on which these two appellants would be standing trial for the same incident. The appellants at the time of the incident were 28 and 19 respectively and had served many years in custody already. Further, there was no intention to kill the deceased. Causation remained in issue. The minimum term had long passed and the family of the deceased have made it clear, even at the time of the original sentence for murder, that they bore no malice towards the appellants.
13.
Mr Russell-Flint also prays in aid in relation to Mr Gowans the fact that he has now been transferred to an open prison, on the basis that at some time next year he has a realistic prospect of being released on parole. Thus, it is submitted that if fresh proceedings are instituted against him on a charge of murder he could well lose his place in open conditions and, if convicted, would have to recommence the life sentence which he has already served.
14.
The position in relation to Mr Hillman is somewhat different. He was transferred to open conditions in or about 2012. While on leave from prison, however, he was arrested, charged and convicted for the offences of rape and assault by penetration for which he was sentenced to 8 years' imprisonment, clearly to run concurrently with the life sentence. Not surprisingly he has returned to closed conditions. His appeal against conviction for those offences was dismissed by this court - see
[2014] EWCA Crim 2112
. The risk that he poses which falls to be considered by the Parole Board is therefore different.
15.
The failure to obtain the consent of the Attorney-General is not the fault of either of these appellants. However, in our judgment, it is appropriate and in the interests of justice that a venire de novo should issue and that they be retried on the count of murder which they faced. If there is new medical evidence disclosed to the prosecution doubtless the position can be reconsidered. But in our judgment, the overwhelming public interest that those who are guilty of murder should be convicted and those in respect of whom there is a doubt of guilt acquitted, prevails.
16.
That is not however to say that either appellant should be put back into the position in which they were in 2000. Taking the case of Mr Gowans, he has progressed through the minimum term that he was ordered to serve and is now in open conditions near or comparatively near the prospect of release. It would be quite wrong if the decision of this court were taken by the authorities in any sense to affect the risk that he poses to the public. If the Parole Board, based upon all the circumstances, have properly considered him suitable for open conditions, in our judgment, it will be wrong to change that approach simply as a reflection of this decision. Equally we anticipate that if the appellant is convicted every allowance will be made for the fact that he has in fact served the minimum term then considered appropriate, so that the Parole Board would urgently have to consider his case in exactly the same way as if this appeal had never been mounted.
17.
The same applies in relation to Mr Hillman although different considerations obtain. To such extent as he is a risk to the public he will not be released from the 8 year sentence until he has served the minimum term required by that sentence, by which time this prosecution will have concluded. He also will fall to be considered (assuming he is convicted) in the same way as if this appeal and retrial had never been necessary. In both cases the present position of these appellants ought to be preserved and they should not suffer a detriment for the consequences of the error to which we have referred.
18.
We cannot leave the case without expressing our concern that this error should ever have occurred and that considerable public funds, in the original trial and appeal, should have been wasted because of a failure to obtain appropriate authority. We are assured by Mr Denison that this type of case is now subject to greater supervision within the Crown Prosecution Service and that there is a flag on the system which triggers whenever the consent of the Attorney-General is required which ensures that this requirement is not missed. We trust that this error will not happen again.
19.
For the reasons we have identified we make the order namely, that the conviction and judgment be set aside and annulled and that a new trial shall take place on the charge of murder. The defendant is ordered to appear before a Crown Court to be determined by the Presiding Judge for the South Eastern Circuit to plead to the indictment. We make an order that these proceedings shall not be reported until after the conclusion of the retrial. That order is made under section 4(2) of the Contempt of Court Act 1981.
20.
MR RUSSELL-FLINT: Might we obtain a copy of the judgment, my Lords, so that we can, if need be, provided it to the prison authorities if it is anonymised suitably?
21.
PRESIDENT OF THE QUEEN'S BENCH DIVISION: In this case we direct that the judgment which will be transcribed should be provided to both appellants and a copy to you or your instructing solicitors if you have any for such use to be made of it as is felt appropriate.
22.
MR RUSSELL-FLINT: Thank you very much indeed.
23.
Secondly, can I ask this? I have the benefit of a representation order issued by the Registrar. Those who instruct me were instructed by Mr Hillman initially, in respect of the matter referred to in the reasons for the reference to this court to look at the fresh medical evidence that had been obtained. As is set out at paragraph 26 of the statement of reasons for a reference to the Court of Appeal it was as a result of the letter sent by those who instruct me, Messrs Kaim Todner, to the Attorney-General that his office checked as to whether or not the consent, which has led to this appeal being allowed in the terms that it has, to come before this court. The request is that this court, which is empowered to do where it allows an appeal under the 1968 Act against conviction, to order a defendant's costs order in favour of these appellants. It will deal with the work that my solicitors have undertaken in respect of preparing this matter for this appeal.
24.
PRESIDENT OF THE QUEEN'S BENCH DIVISION: Is there anything else? Do you need to take instructions on any other aspect of the judgment in the light of your previous observations?
25.
MR RUSSELL-FLINT: I do not think I need to take instructions at this stage. We were trying to get down to see Mr Gowans whilst my Lords were considering the judgment. I do not think there any specific point we sought to make. But at the moment I make no application for, if that is what your Lordship is thinking of, bail. We will take instructions with him after this court has dealt with this appeal.
26.
PRESIDENT OF THE QUEEN'S BENCH DIVISION: In the normal course my practice would be to say that any application for bail should be made to the Central Criminal Court because the trial will be conducted at a court determined by a presiding judge of the South Eastern circuit likely to be the Central Criminal Court. In the light of the unusual circumstances if you want to mention the case back at 2 o'clock you may do so.
27.
MR RUSSELL-FLINT: Thank you very much indeed.
28.
PRESIDENT OF THE QUEEN'S BENCH DIVISION: Is there anything else Mr Denison?
29.
We will make a representation order in the terms sought. A defendant's costs order to be assessed if not agreed.
30.
MR RUSSELL-FLINT: I am very grateful. | {"ConvCourtName": ["Central Criminal Court"], "ConvictPleaDate": ["24th August 2001"], "ConvictOffence": ["murder"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["both men pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Central Criminal Court"], "Sentence": ["life imprisonment", "11 years was specified.", "13 years was specified"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["him"], "OffAgeOffence": ["were 28 and 19"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["Vytautas Jelinskas,"], "VicNum": ["Vytautas Jelinskas"], "VicSex": ["man"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["pizza delivery man."], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["sustained a subdural hematoma"], "DefEvidTypeTrial": ["insufficient evidence to show the acts"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["appellants"], "CoDefAccNum": ["Both"], "AppealAgainst": ["appeals against conviction."], "AppealGround": ["fresh medical evidence."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["conviction and judgment be set aside and annulled and that a new trial shall take place"], "ReasonQuashConv": ["failure to obtain appropriate authority."], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Central Criminal Court"], "ConvictPleaDate": ["2001-08-24"], "ConvictOffence": ["murder"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No", "Yes"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Central Criminal Court"], "Sentence": ["11 years was specified.", "13 years was specified", "life imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["19-28"], "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": ["Don't know"], "VicJobOffence": ["Employed"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Medical"], "DefEvidTypeTrial": ["insufficient evidence to show the acts"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["1"], "AppealAgainst": ["appeals against conviction."], "AppealGround": ["fresh medical evidence."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["conviction and judgment be set aside and annulled and that a new trial shall take place"], "ReasonQuashConv": ["failure to obtain appropriate authority."], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 494 |
No:
201804133/C4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2020] EWCA Crim 1286
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday 17 June 2020
LADY JUSTICE CARR DBE
MR JUSTICE WILLIAM DAVIS
THE RECORDER OF SOUTHWARK
HER HONOUR JUDGE KARU
(Sitting as a Judge of the CACD)
R E G I N A
v
CONSTANCE HOWARTH
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.
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Mr G Carter-Stephenson QC
appeared on behalf of the
Applicant
Mr P Greaney QC
appeared on behalf of the
Crown
J U D G M E N T
LADY JUSTICE CARR:
Introduction
1.
On 21 March 2007 in Preston Crown Court, the applicant, now 51 years old, was convicted by a unanimous jury of conspiracy to murder, contrary to section 1(1) of the Criminal Law Act 1977. On 8 May 2007 she was sentenced to life imprisonment with a minimum term of 20 years. Her application for leave to appeal against sentence was dismissed in 2007 (
[2007] EWCA Crim 2928
).
2.
She was tried alongside two co-accused, Ian McLeod ("McLeod") who was also convicted of conspiracy to murder, and Warren Mason ("Mason") who was acquitted of conspiracy to murder. Robert Spiers ("Spiers") had fled abroad in the aftermath of the incident in question but was extradited in 2009 and convicted in 2009 in a second trial.
3.
This is the applicant's renewed application for leave to appeal against conviction alongside a necessary application for an extension of time of some 11 ½ years. We have had the benefit of submissions from Mr Carter-Stephenson QC for the applicant and Mr Greaney QC for the respondent.
The facts
4.
The prosecution's case was that between 4 and 13 March 2016 the applicant, Spiers, McLeod, Richard Austin ("Austin") and Carlton Alveranga ("Alveranga") were engaged in a conspiracy to murder. The conspiracy reached its conclusion in a shooting in a public house on 12 March 2006. On that day, a Sunday, at about 2.15pm, two masked armed men, being Austin and Alveranga, entered the Brass Handles Public House in Pendleton, Salford. It was a family pub and a football match was being aired on the television at the time. The two men went immediately to a room known as The Vault where David Totton ("Totton") was sitting with Aaron Travers ("Travers") and fired a number of shots in their direction. Totton and Travers were seriously injured but survived. The gun fire caused mass panic inside the public house. However, a number of customers fought with the gunmen and disarmed them. During the struggle, the two gunmen, Austin and Alveranga, were themselves shot and fatally wounded. They fled from the public house before collapsing and dying a short distance away.
5.
The relevant background is as follows. In 2006 two gangs in Manchester were at war with each other: the Doddington gang and the Gooch gang. There had been a series of “tit for tat” shootings involving the two rival gangs which had resulted in fatalities, in particular the death of Ramone Cumberbatch, a known Doddington gang member and boyhood friend of Austin who was shot dead by a known Gooch gang member in September 2005. In the same year a further known Doddington gang member, Jonathon Crawley, was also shot dead. A 19-year-old member of the Gooch gang was convicted of and is currently serving a life sentence for that murder.
6.
McLeod was the leader of the Doddington gang of which Austin and Alveranga were also members. Marcus Callaghan ("Callaghan") was a member of or associated with the Gooch gang. Callaghan was in the Brass Handles Pub at the time of the shooting. Totton and Travers were shown by way of police enquiries not to have been regular drinkers in the Brass Handles Public House. Their presence there on that day was purely by chance. But they had been out in the North nightclub the night before the shooting with Callaghan, Anthony Richards and other males from the Salford area. Also present in the nightclub that night were various members of the Doddington gang, Ryan McLeod, Mason and three unnamed others. Some sort of incident occurred within the night club. The group, including Totton, Travers and Callaghan, had gone from the nightclub to a party on the estate behind the Brass Handles Public House and then decided to go on to the public house to continue their drinking.
7.
It was the prosecution case that the applicant was in a conspiracy to murder with Austin and Alveranga, McLeod, Mason and Spiers. The intended victim was someone inside the public house, probably but not certainly Totton and/or Travers. Reliance was placed on the following evidence:
8.
on the day of the shooting the applicant was interviewed at the police station as a witness. She gave an account that she had been watching football at the Brass Handles Pub but had been in the toilet when the shooting took place. Within minutes of her leaving the police station telephone evidence showed that she had been in contact with telephones linked to Spiers and McLeod;
9.
telephone contact between the applicant, McLeod and Spiers. Of the nine contacts from
McLeod to the applicant between 1 January 2006 and 12 March 2006, six were made on 12 March. Of the 35 contacts from the applicant to McLeod over the same period, 14 were made on 12 March 2006. Of the seven contacts from McLeod to Spiers over the same period, five were made on 12 March 2006. Of the four contacts from Spiers to McLeod over that same period, all were made on 12 March 2006. Of the two calls from
Spiers to the applicant between 18 January 2006 and 12 March 2006, both were made on
12 March 2006. All calls from the applicant were made using the number ending 752;
10.
the applicant was in the public house in the immediate lead up to the shooting and in heavy contact by telephone with both McLeod and Spiers in that period. At the moment the gunmen entered the Brass Handles Pub she left the room to go to the toilet;
11.
on the day of the shooting, the applicant concealed her connection to the 752 handset from DC Fernandes and from the investigators when interviewed under caution (save for the final interview) and also the fact that she disposed of the 752 handset in the immediate aftermath of the shooting;
12.
the handset and SIM cards for McLeod's 420 number and Spiers' 148 and 493 numbers were not recovered despite address searches having been undertaken. An inference was that they too were disposed of.
13.
The applicant was arrested on 9 May 2006. Police searched her address and found two mobile telephones in the lounge. Neither of these was the 752 phone on which she had made and received calls on 12 March. Following her first interview on 10 May 2006, the applicant handed in a prepared statement and refused to answer any more questions.
14.
The applicant worked for PMS Securities, later known as Icarus. Spiers was one of the directors and managers of PMS and the applicant would report to him and other managers. Spiers was a Salford man and she would socialise with him in the Brass Handles public house. No weapons were ever recovered and someone inside the public house tore out CCTV equipment immediately after the shooting, with the result that CCTV evidence of the inside of the pub was not available.
15.
The defence case was a denial of any involvement in conspiracy to murder, either as a spotter or any other role. The applicant gave evidence at trial. The Brass Handles was her local public house and she had every reason to be there that Sunday. It was not the usual public house frequented by Totton and Travers and she could not have known in advance that they would be in there. She was in the lounge at the time of the shooting
with a limited view to The Vault and unable to communicate the position of anyone there. She was in the ladies’ toilet when Austin and Alveranga entered The Vault and she only knew that something was wrong when she heard sounds like a fire cracker, followed by people rushing into the toilets. She admitted that she had lied about her work for PMS and by saying that she did not know Travers. The reason that she had disposed of the 752 telephone was because she had been receiving threatening calls on it and wanted nothing more to do with it.
Disclosure application
16.
We record at the outset that Mr Carter-Stephenson's position was that today's hearing should be treated as a directions hearing only in order to make extensive disclosure orders. In particular, the applicant contends that there has been a failure, predominantly due to a failure by the applicant's former legal team to make the relevant requests, to disclose material going to the suggestion that this was inter-gang related violence with Callaghan, who was in the Brass Handles public house at the time of the shooting, as the target. The execution of such a plan did not need the applicant as a spotter. There was no evidence that the applicant knew Callaghan.
17.
To this end a schedule of some 37 disclosure requests has been produced. Overnight, having been invited to participate by the court at short notice, Mr Greaney produced a fulsome response to that schedule. We rely on its content as a whole.
18.
In the light of that response, Mr Carter-Stephenson limits his application for disclosure today to two requests only: requests 9 and 27 of his schedule. Request 9 relates to all telephone data held in relation to PMS between 1 January 2006 and 30 March 2006. Request 27 relates to the disclosure of CCTV footage from cameras around the area outside the pub.
19.
As for request 9, Mr Carter-Stephenson submits that it is necessary to see this material in order properly to set out the applicant's case at trial. Reference is made to a telephone chart produced on behalf of the applicant showing the IMAC landline dates for the PMS activity. As for the CCTV footage the subject of request 27, the submission for the applicant is that this footage is central to the applicant's case. Concern is expressed at the information now provided by the respondent to the effect that there is no sufficiently high-quality footage available for any meaningful identification to take place. Mr Carter-Stephenson submits that the CCTV footage would establish the timeframe of the events, provide clarity as to the arrival of the group from the party beforehand and establish who in the group was of potential proximity to the two victims and Callaghan. 20.
We note that on 12 August 2019 the applicant's solicitor confirmed to the Criminal Appeal Office that the application for leave was fit for consideration without more and that the papers were ready to be placed before the single judge. It is not clear to us what has changed since then and why the applicant suggests that the application is now not fit for consideration by the court. For these reasons and for further reasons which will become apparent, we decline to take the unusual course of considering further disclosure directions at this stage before considering the question of leave. Mr Carter-Stephenson was invited to proceed to his submissions on the full renewal application, which he duly did.
Grounds of appeal
21.
The over-arching submission for the applicant is that as a result of material non-disclosure during the course of the trial, either because of a failure by the prosecution
to disclose or a failure by the defence legal team properly to examine the issues, the whole presentation of the case against the applicant was affected. She was prevented from putting forward the alternative hypothesis that this was gang-related violence which would not have involved the need for a spotter, which she was expressly identified as being by the prosecution.
22.
The grounds of appeal are developed as follows:
Ground 1. Material was not disclosed by the prosecution or requested by the defence which
demonstrated that the contact between the applicant's telephone and that of McLeod and Spiers was consistent with ordinary business contact predating any suspicion of conspiracy. The prosecution was in possession of telephone records for the mobile telephones of the applicant, Spiers and McLeod from at least early January 2006 on but failed to disclose that material. There was also, it is suggested, a failure to disclose the landline records for PMS and IMAC. If these documents were not available because of a failure by the defence team to inspect or press, then the applicant, it can be said, did not receive a fair trial.
23.
Ground 2. Complaint is made that the content of text messages between the mobile phones of the applicant, McLeod, Spiers and others were not obtained by the prosecution or, if obtained, not disclosed or requested by the defence. The content of the text messages, although limited, would have shown that the applicant's innocent explanation for the telephone calls was correct and that those who were to be involved in the ultimate shooting were already moving towards carrying out the planned shooting prior to any mobile telephone contact with the applicant, a matter wholly inconsistent with the prosecution's case. In response to the respondent's indication that the telephones had simply never been available for inspection on behalf of the prosecution, the suggestion is made that the service providers should have been contacted in an attempt to obtain the material in question;
24.
Ground 3. Despite being in possession of a substantial amount of intelligence material relating to the alternative motive of inter-gang violence for the shooting, other than that being advanced by the prosecution, there was no disclosure of such material. This is said to be "a major failing". An alternative motive would have negated the case against the applicant and her alleged role in the conspiracy. Reference is made to admissions made in the Spiers' trial and the manner in which the case was opened against the applicant where she was expressly identified as a spotter. It is said that this was crucial material which should have been part of initial disclosure and it would have put a very different complexion on the case;
25.
Ground 4. Despite being aware from the unused material of the presence at the scene of the shooting of Callaghan, the applicant's representatives made no request for disclosure of this gang-related intelligence material. Again, this it is said would have undermined the case against the applicant, premised, as we have indicated, on her being a spotter;
26.
Ground 5. It is said that there was undisclosed CCTV footage which would have shown movements of the rival gang just before and after the shooting. The footage which was disclosed only commenced after the shooting took place;
27.
Ground 6. The defence legal team failed to make an application to exclude the interview of the applicant not under caution on the day of the shooting when she was clearly under the influence of alcohol. It is said that what she said was damaging, firstly because she lied, and secondly because she omitted material facts on which she was later cross-examined;
28.
Ground 7. Although it is conceded that an application would have been unlikely to succeed, complaint is made that no consideration was given to an application to seek severance of the trial of the applicant from that of her co-accused. There may, in the light of gang-related material disclosure, have been a conflict between her and her co-accused. The application, it is suggested, should have been made;
29.
Ground 8. Complaint is made that those representing the applicant failed to advise her of the need to call evidence from Spiers. It is suggested that there should have been a request to delay the trial in order for him to be extradited back and also a failure to cross-examine a Crown witness, Brian Higgins.
30.
Finally, as for delay, it is submitted that, given the merit in the appeal, it would be in the interests of justice for the necessary extension of time to be granted. It is said that the applicant originally received negative advice on appeal. A number of authorities have been referred to, with particular reliance being placed on
R v King
[2000] 2 Cr App R 391 where an extension of time of twelve-and-a-half years was granted.
The Respondent's position
31.
The respondent maintains that the application is unarguable with or without the disclosure sought. The application is more than a decade out of time. The grounds lack any real substance and are in material respects inaccurate, as set out in a full
Respondent's Notice. It is also said that the applicant has failed to acknowledge that the disclosure test at this stage is that stated by the Supreme Court in
R v Nunn
[2015] AC 225
(as summarised accurately in the Attorney General's Guidelines on Disclosure at paragraph 72).
Analysis
32.
We address the question of delay first. An extension of time will only be granted where there is good reason to give it and ordinarily where the defendant will otherwise suffer significant injustice: see
R v Hughes
[2009] EWCA Crim 841
at [20]. The principled approach is to grant an extension if it is in the interests of justice to do so: see
R v
Thorsby
[2015] EWCA Crim 1
. The court will examine the merits of the underlying grounds before making a decision on whether to grant an extension of time.
33.
The delay in advancing this application is vast, almost eleven-and-a-half years. Even taking on board the fact that the applicant originally received negative advice on the merits of the appeal, there is no sensible justification for the delay since then, nor has any proper explanation been advanced, in particular as to why the matter was not progressed in the context for example of Spiers' trial in 2009. The issue that now excites the applicant, namely whether another, Callaghan, was the intended target of the shooting by members of a gang with whom she had no involvement was very much in issue in that trial. The applicant had a close association with Spiers, and they instructed the same solicitors. Nor was the matter progressed in 2013 when disclosure requests were made on her behalf and refused (in 2014). The applicant instructed her present solicitors in December 2014.
34.
There is little or no explanation for the delay in question. Moreover, the delay has caused real prejudice given that the applicant's trial leading counsel has now sadly died and her trial junior counsel, who retired some 11 years ago and no longer has any of his case notebooks, can remember very little by way of assistance. The original prosecution legal team is also no longer available and fresh lawyers and police officers have had to be brought to the case.
35.
R v King
(supra) involved a "special and unusual" situation (see [53]) where it was clear that the appeal was bound to succeed and where to refuse leave because the application was out of time would have resulted in an application to the Criminal Cases Review Commission, followed by a successful reference to this court. As the court said (at [52]) it is "very rare" to grant an extension of time of such magnitude. In our judgment, in order for an extreme extension of the necessary length here to be granted there would have to be a compelling case indeed on the merits.
36.
Against this background we turn to consider the merits, taking each ground in turn. We note at the outset that the applicant was represented throughout trial by experienced leading and junior counsel.
37.
As for ground 1, there is no good reason to doubt the respondent's fully particularised statement that the material referred to (other than material relating to PMS and IMAC) was in fact disclosed, either as part of the prosecution case or as unused material.
Further, the applicant was always able to assert that her telephone contact on
12 March 2006 was not out of the ordinary. However, the analysis of the evidence of the applicant's telephone contact with Spiers and McLeod demonstrated precisely the contrary. As for the PMS/IMAC landline records, the subject of disclosure request 9, it was not in issue that PMS and IMAC had had dealings with each other prior to the shooting. No disclosure was required and in any event the data is no longer available despite the best efforts of the respondent.
38.
Ground 2 is also unsustainable. The content of the text messages was and is unavailable since investigators were unable to recover any of the relevance devices, including the applicant's own handset containing the 752 number which the applicant had herself disposed of. There was no arguable failure to disclose. As for the suggestion that service providers could have been contacted, it is entirely unclear what the outcome of any such enquiry would have been. It is purely speculative. As for the applicant's analysis of the prosecution case in respect of the interplay between McLeod, Spiers and the applicant, the fact is that the prosecution case satisfied two juries and it is not for us to re-assess its strength.
39.
It is convenient to take grounds 3 and 4 together. The applicant's defence statement, even as amended, did not give rise to any disclosure requirement relating to gang warfare. Nor can it be said that the material was disclosable on the basis that it would have undermined the prosecution case. The prosecution did not advance any particular motive and its case did not depend on establishing the identity of the intended target, as to which it was equivocal. The case was put on the basis that the intended victim was someone inside the public house, probably but not certainly Totton and/or Travers.
40.
The respondent describes the Callaghan theory as "highly speculative" not least since Callaghan is of mixed heritage and bears no resemblance to either Totton or Travers. The theory failed in the 2009 trial of Spiers. The respondent has confirmed in terms that at the time of trial the police held no information to suggest that Callaghan was the intended target of the shooting.
41.
The Callaghan theory would also have involved the applicant effectively accusing McLeod of organising the shooting because of gang rivalry. Given the applicant's close contact with him, that would not have exonerated her. The case against her based on her telephone contacts and, for example, lies and disposal of the handset with number 752
would have remained.
42.
Finally, advancing the theory would have exposed the applicant to the likelihood, if not certainty, of her previous convictions for perverting the course of justice in the context of a serious gangland murder and firearms offences being admitted before the jury.
43.
As for ground 5 and the complaint made in relation to CCTV footage, the applicant accepts that the footage from the Brass Handles public house was stolen after the shooting and so is unavailable. She therefore targets CCTV footage from other cameras situated around the public house. It does not seem to us that the matters that it is suggested might be revealed from that material are of any real significance, for example Austin and Alveranga entering and leaving the public house or Totton and Callaghan entering the public house, which they clearly did. The timings were largely not in dispute. Further, the respondent has retrieved other footage and converted it. It has reviewed a third of that material and found nothing of sufficient quality to assist in identification. In any event and again, the case against the applicant based on her telephone contacts and for example lies and disposal of her handset would have remained. Further and as before, any attack on others by the applicant risked the jury learning of the applicant's bad character.
44.
As for ground 6, at the time of the interview in question the applicant was not a suspect. The officer took the view that the applicant was fit to be interviewed. She herself stated at the time that she was neither drunk nor sober, but "sociable". The applicant was able to tell the jury that she had been drinking at the time. The question was one of reliability not admissibility. In any event, given the applicants later repeated lies in interview under caution, the admission of this evidence could not arguably render the conviction unsafe.
45.
Moving on to ground 7, an application to sever would have been doomed to failure; the applicant concedes that it was unlikely to have succeeded. This cannot be said to have been an exceptional case justifying severance in a trial of alleged co-conspirators.
46.
In relation to ground 8, Spiers was not available to give evidence, having fled the jurisdiction. If he had been available he would have been in the dock alongside the applicant. Cross-examination of Higgins might have implicated Spiers but would not have exonerated the applicant. Taken at its highest, Higgins' evidence would have made no difference to the outcome of the applicant's case. We note that Higgins gave evidence at Spiers' trial.
47.
We conclude our analysis by considering the general complaints made on behalf of the applicant of failures on the part of her former legal team properly to represent her. Amongst other things, the complaints demonstrate quite how prejudicial the huge delay in this application has been, given that there can be no longer be meaningful response from the applicant's previous representatives. We cannot identify any arguable substantive failures.
48.
For all these reasons, we do not consider that the appeal stands a real prospect of success and it would not be in the interests of justice to grant the necessary extension of time. We dismiss the application for an extension of time and leave to appeal against conviction. We do not do so without thanking both leading counsel again for their helpful assistance and in particular for the quality of their written submissions.
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": ["Preston Crown Court"], "ConvictPleaDate": ["21 March 2007"], "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": ["Preston Crown Court"], "Sentence": ["life imprisonment with a minimum term of 20 years."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["she"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["worked for PMS Securities"], "OffHomeOffence": ["searched her address"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["saying that she did not know Travers."], "VictimType": ["David Totton (\"Totton\")"], "VicNum": ["David Totton (\"Totton\")", "Aaron Travers (\"Travers\")"], "VicSex": ["David Totton (\"Totton\")"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["drinking"], "ProsEvidTypeTrial": ["telephone evidence", "Police searched her", "witness"], "DefEvidTypeTrial": ["denial of any involvement in conspiracy"], "PreSentReport": ["data not available"], "AggFactSent": ["concealed her connection", "masked armed"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["applicant"], "CoDefAccNum": ["two co-accused,"], "AppealAgainst": ["against conviction alongside a necessary application for an extension of time of some 11 ½ years"], "AppealGround": ["Ground 1. Material was not disclosed", "undisclosed CCTV", "Ground 2. Complaint is made that the content of text messages", "should have been a request to delay the trial", "interests of justice for the necessary extension of time", "failed to make an application to exclude the interview", "no consideration was given to an application to seek severance of the trial"], "SentGuideWhich": ["section 1(1) of the Criminal Law Act 1977"], "AppealOutcome": ["dismiss"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["not be in the interests of justice to grant the necessary extension"]} | {"ConvCourtName": ["Preston Crown Court"], "ConvictPleaDate": ["2007-03-21"], "ConvictOffence": ["conspiracy to murder"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Preston Crown Court"], "Sentence": ["life imprisonment with a minimum term of 20 years."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Female"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Other"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individuals"], "VicNum": ["2 of 2", "1 of 2"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Yes-drinking"], "ProsEvidTypeTrial": ["Police searched her", "telephone evidence", "witness"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["masked armed", "concealed her connection"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["2"], "AppealAgainst": ["Other (e.g., application for extension of time to appeal)"], "AppealGround": ["interests of justice for the necessary extension of time", "should have been a request to delay the trial", "no consideration was given to an application to seek severance of the trial", "failed to make an application to exclude the interview", "undisclosed CCTV", "...not obtained by prosecution", "Ground 1. Material was not disclosed"], "SentGuideWhich": ["section 1(1) of the Criminal Law Act 1977"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["not be in the interests of justice to grant the necessary extension"]} | 444 |
Neutral Citation Number:
[2005] EWCA Crim 2909
Case No:
200502149
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CARLISLE
HHJ SLINGER QC AND A JURY
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
15/11/2005
Before :
LORD JUSTICE KEENE
MRS JUSTICE HALLETT DBE
and
MR JUSTICE CALVERT-SMITH
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
- v -
Mark Timmins
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Gregory Hoare
appeared on behalf of the appellant
Paul Timothy Evans appeared on behalf of the Crown
Hearing dates : Thursday 4
th
August 2005
- - - - - - - - - - - - - - - - - - - - -
Judgment
Mr Justice Calvert Smith :
1.
On 7
th
April 2005 at Carlisle Crown Court this appellant was convicted of an offence of indecent assault. The verdict was an alternative verdict, the original count having alleged rape. He was acquitted altogether of 2 further counts of rape and 3 of indecent assault. He appeals against conviction with leave of the single judge. The complainant in all six counts was the daughter of the appellant’s former partner. Following her parents’ separation the appellant had started up a relationship with her mother. The appellant had moved into the family home when the complainant was 12 or 13 years old. The appellant was said to have indecently assaulted her on a number of occasions by forcing her to give him oral sex (counts 4, 5 and 6). This was said to have happened on at least ten or eleven occasions but the charges formed specimen counts. Four days after the first indecent assault the appellant was said to have raped the complainant (count 1). The appellant was 14 years and six months old at the time. This was said to have happened on a number of other occasions but the other charges formed specimen counts (counts 5 and 6). Several years later, following the appellant’s separation from the complainant’s mother, the complainant made the allegations to her mother who then informed the police.
2.
The appellant did not deny having sexual intercourse
per vaginam
with the complainant when she was 14 but claimed that it had been with her consent. It is clear from the jury’s verdict on this and the other counts that they accepted that his account of this charge and the other charges was or may have been true.
3.
The
Sexual Offences Act 1956
(
the Act
) under which all the charges in this case were brought has been repealed and replaced by the
Sexual Offences Act 2003
which came into force on 1
st
April 2004.
The 2003 Act
is not retrospective. Sexual offences committed before that date will continue to be dealt with under the old law. For reasons which are well-known alleged sexual offences often come before the courts many years after their commission. In this case the conduct alleged had occurred between 1998 and 2001.
4.
It is settled law that
the act
of intercourse is sufficient to amount to an indecent assault under
section 14(1) Sexual Offences Act 1956
-
McCormack
53 Cr App R 514. By
section 14
(2) consent is not a defence to such a charge when the victim is under 16. It is equally clear that an alternative verdict of indecent assault is available on a charge of rape –
Hodgson
(1973) 57 Cr App R 502.
5.
By
section 6(1)
of
the Act
“it is an offence… for a man to have unlawful sexual intercourse with a girl ... under the age of 16”. Paragraph 10(a) of
Schedule 2
of
the Act
, which is given effect by
section 37
of
the Act
provides that, with respect to such an offence, “a prosecution may not be commenced more than 12 months after the offence charged.” There is no time limit on prosecution of the equivalent offence in the
Sexual Offences Act 2003
–
Section 9(1)
& (2)(a).
6.
Until recently it had been the practice for many years for prosecutors to prosecute defendants under
section 14
in cases in which the time limit for a prosecution under
section 6(1)
had been exceeded and in which the prosecutor believed the public interest would be served by a prosecution. The practice had had at least the implied approval of this court. In
Hinton
(1995) 16 Cr App R (S) 523 the defendant had pleaded guilty to indecent assault on his 15 year old stepdaughter. The reason for the charge being under
section 14
was that the time limit for prosecution under
section 6
had expired. The sentence exceeded the maximum for the
section 6
offence. The Court reduced the sentence since the maximum sentence for an offence under
section 6
was 2 years whereas the maximum sentence for indecent assault was 10 years. (The maximum sentence for an offence under the new
section 9 Sexual Offences Act 2003
is 14 years.) In that case the defendant had originally been charged with a
section 6
offence. When it was discovered that that offence was time-barred the charge under
section 14
was substituted. In
Iles
[1998] 2 Cr App R (S) 63 and
Figg
[2004] 1 CAR (S) 409 the question of sentence in this type of case was revisited without any suggestion that the course adopted by the Crown of charging
section 14
offences in suitable cases when the time limit in respect of the
section 6
offence had expired was objectionable either in law or on grounds of public policy. The point was taken for the first time in
Jones
[2003] 2 CAR 8 134. It was rejected by the Court of Appeal.
7.
However the practice has recently been brought to an end as the result of the House of Lords decision in
R v J
(2005) 1 AC 562
;
[2004] 3 WLR 1019
in which the majority clearly ruled that to charge an offence under
section 14
when the facts of the case supported a
section 6
offence offended against the limitation period in
Schedule 2
paragraph 10(a). In that case a 35-37 year old man had repeatedly abused a position of trust with a 13-14 year old girl. Unsurprisingly therefore a majority of their Lordships expressed the view either that the prosecutor had commenced the proceedings in what he believed to be the public interest or (Lord Bingham at para 14) that the decision to do so was one “which the general public would applaud”.
8.
The present case came before the Carlisle Crown Court after the decision in
J
in which the speeches were delivered on 14
th
October 2004.
9.
At the beginning of the trial consideration was given to the possibility of adding a count of indecent assault to cover the admitted conduct of the accused of having vaginal intercourse with the 13 year old girl. After discussions between counsel it was concluded that the decision in
J
precluded the addition of such a count. (This conclusion has since been confirmed by the decision of this court in
R v WR
EWCA Crim 1907
(Judgment 11
th
July 2005) to which our attention has been drawn by counsel since the hearing.) The trial judge then indicated that at some stage he would wish to hear argument on the possibility of the addition of a separate count or of an alternative verdict at a later stage.
10.
On the second day of the trial the judge heard argument and ruled that the alternative verdict of indecent assault could be left on a charge of rape. In his ruling he stated (as transcribed):
“Historically, when the issue had been one of consent in a rape charge, it had always been accepted that if a girl were under the age of sixteen, and a jury were to find not guilty of rape on the issue of consent, it was open to a jury – if it accepted that the intercourse had taken place, to find on an alternative verdict a defendant guilty of indecent assault. The issue now is whether that remains still open to the jury. Until the case of
R v J
,
[2004] 3 WLR 1019
– until the decision of the House of Lords in the case, no-one had considered that there might be a problem. But, it is submitted by Mr Hoare – to whom I am grateful for his skeleton argument and for his oral submissions – it is submitted that there had been a complete sea change as a result of the case of
J.
Such a sea change, which he submitted, might be thought to have resulted in irrational and incoherent decisions which might bring the law into disrepute, and adopting the view of Baroness Hale in that case the position might well be undeserved, But nonetheless technically correct, and his submission is this.
That when the matters, which are now admitted by the defendant, consist of unlawful sexual intercourse, provided that the case was brought outside the time limit for a proper prosecution for that offence, it is no longer open to the jury on the facts of unlawful sexual intercourse to convict of indecent assault.
J,
he says, now will affect a sea change, both procedurally and substantively, in the time honoured way in which these matters have been dealt with.
The facts of
J
were effectively these. That there had had been consensual sexual intercourse between a seventeen year old girl. Sorry, a seventeen year old complainant alleged that between the ages of thirteen and fifteen, she had had consensual sexual intercourse with the defendant. He had denied that but was convicted. But, submitted – at various stages both before the trial judge and at various stages of appeal – that because the prosecution had been out of time for bringing the charges of unlawful sexual intercourse, that had deliberately chosen to charge on the basis of indecent assault, it was an abuse of process for the matter to be allowed to continue. The abuse of process argument went before the trial judge and the Court of Appeal, but no doubt at the prodding of the House of Lords, the matter was slightly altered in the sense that what their lordships really considered was whether the wording of the statute allowed what had in fact happened. So, reflecting again, what had happened was this. The prosecution would have been for unlawful sexual intercourse had it been done timeously. It was too late, and quite openly the prosecution then sought to proceed by way of charges of indecent assault and made it quite clear that that was what they were going to do. And indeed, it followed a line of cases which had come before the Appeal Court, not on that point, but on the question of the sentencing which was appropriate.
The House of Lords found that where the statutory provision as here, in relation to time limits, was clear and unambiguous, the court could not decline to give effect to it on the grounds that the rationale here of the time limits might have been anachronistic, discredited or unconvincing. That Parliament must have decided there was a reason for a time limit, Parliament had not altered it and that accordingly, when the only evidence of sexual intercourse with a girl under sixteen was relied upon, the defendant could not be prosecuted for indecent assault after twelve months had elapsed. And in effect, Mr Hoare now says well that’s the situation on the facts. The prosecution on this charge of rape could not have put an alternative matter of unlawful sexual intercourse, and therefore it follows from that indecent assault cannot follow. It is really an attractive argument, but one which I do not accept.
J
was concerned with specific facts as to the basis upon which the prosecution was launched. This is a case of rape. It’s a case of rape and where the issue – in terms of the time when the girl was under sixteen – the issue is one of consent in matters where the jury finds that matter occur below the age of sixteen, the issue is one of consent. It is not a case where a procedural device has been adopted to get round a time limit. There is no time limit in relation to rape and it is my judgment that the Crown is still entitled to ask the jury to consider alternative verdicts of indecent assault.”
11.
The stark issue for us therefore is whether the decision in
J
means that there are no circumstances in which a defendant who has, before 1 May 2004, had consensual intercourse with a girl under 16, can be convicted of an offence of indecent assault unless proceedings are started within twelve months of the alleged offence. On behalf of the appellant Mr Hoare has submitted that that is the only logical conclusion to be drawn from the speeches of the majority. On behalf of the respondent Mr Evans has submitted:
i)
That
J
was dealing with a particular situation and the plain words of the schedule.
ii)
That Lord Bingham in particular left open the question of alternative verdicts albeit in the context of such verdicts as are provided for within
the Act
itself rather than those which are the result of the operation of
Section 6(3) of the Criminal Law Act 1967
to which no reference was made in any of the speeches.
12.
Does the decision of the judge, at the instance of either prosecution or defence or on his own initiative, to leave the possibility of an alternative verdict of indecent assault to a jury, or the decision of a defendant to plead guilty to such a lesser charge which is accepted by the prosecution and the court, infringe the principle of statutory construction so clearly stated by the majority in
J?
In
McCormack
(supra) the Court ruled that the decision whether to leave an alternative verdict is a matter for the trial judge’s discretion. In his judgment at page 513 Fenton Atkinson LJ said this:
“The view this court had formed is that the learned Deputy Chairman did have a discretion in the matter. Cases vary so infinitely that one can well envisage a case where the possibility of conviction of some lesser offence had been completely ignored by both prosecution and defence – it may be that the defendant has never had occasion to deal with the matter, has lost a chance of calling some evidence to cover or guard against the possibility of conviction of that lesser offence – and in such case, where there might well be prejudice to a defendant, it seems to this Court there must be a discretion in the trial judge whether or not to leave the lesser offence to the jury.”
13.
There are two ways in which the question might be answered in the affirmative. One would be if the words “commence proceedings” are apt to cover the situation in which an alternative verdict is returned on a charge which was not brought by the prosecution and indeed was a verdict which they had sought to avoid.
14.
Although the House of Lords in
J
was concerned with the institution of proceedings rather than the question of alternative verdicts, there are references in some of the speeches to this issue.
15.
At paragraph 23 Lord Bingham said:
“In the case of incest by a man, prohibited by section 10, para. 14(a) of Sch 2 provided that the jury might, as an alternative verdict, find the accused guilty of intercourse with a girl under 13 (contrary to
section 5
) or intercourse with a girl between 13 and 16 (contrary to
section 6
)…..I incline to the view that an alternative verdict under s.6 in this context was subject to no time limit: the s.10 offence itself was not time-limited: nor was the
section 5
offence; there was no repetition of the s.6 time limit; and the requirement for the Director’s consent could have been expected to ensure that s.10 would not be used as a means for circumventing the time limit applicable to prosecutions under 6.”
16.
Lord Clyde at para 43 specifically excluded alternative verdicts from consideration.
“The present case however is not concerned with problems of alternative verdicts.”
17.
Lords Steyn and Rodger did not specifically mention the issue. Lord Rodger referred to the submissions of counsel then instructed for the Crown – para 65 -
“Deploying his learning and experience, Mr Perry held up the prospect of all kinds of difficulties that would, he said, arise if your Lordships were to interpret
the Act
in this way. I am prepared to accept that there may indeed be some initial difficulties.”
18.
There is no doubt, though she did not mention it specifically, what the view of the 5
th
(dissenting) Law Lord Baroness Hale would have been since she saw nothing wrong with the institution of proceedings for the offence of indecent assault.
19.
An authority which was cited to the House and which bears on the current point is
Cotton
(1896) 60 J.P.824
. In that case the Crown sought to persuade the trial judge to leave an alternative verdict of unlawful sexual intercourse (then
Section 5 of the Criminal Law Amendment Act 1885)
to the jury when proceedings for that offence would have been time-barred. The judge refused the application. In the course of his judgment he said:
“The conclusion I have come to is that you cannot go on with the charge under
section 5
, more that three months having elapsed since the last commission of the offence. In substance, if this could be done, by shaping your charge as a charge of rape, you could always evade the statutory limit of time. In a case such as this, it would be the more reasonable construction of the sections to hold that the time must be considered as the essence of the charge. In substance, an indictment of rape under circumstances such as these must be treated as a charge of the lesser offence”.
20.
Lord Bingham (at para 19) in
J
expressed doubts as to the reasoning in that case.
“The very brief report makes no reference to indecent assault, of which it was also open to the jury to convict under s.9. I would hesitate to accept all the reasoning of the learned Baron.”
We share those doubts.
21.
In our judgment, whatever the situation which may have applied in the late nineteenth century the reasoning by today’s standards is indeed faulty. It would be a clear breach of the Code for Crown Prosecutors to bring a charge against a person against whom there was no evidence whatever of rape (in particular of lack of consent) in order to circumvent a time limit. It would also amount to a clear abuse of the process of the court. A dismissal hearing would dispose of the charge if such a charge was brought.
22.
The burden of their Lordships’ reasoning is to outlaw the bringing of proceedings because to do so would be to flout the will of Parliament and not because it would amount to an abuse of the court’s process. Lord Bingham makes this clear at para 14.
“The Court of Appeal was quite right, in my respectful opinion, to hold that the conduct of the prosecution in this case did not fall squarely within the category of abuse of the process of the court stigmatised by Sir Roger Ormrod, delivering the judgment of Lord Lane C.J. and himself,
R. v Derby Crown Court, Ex p. Brooks
(1984) 80 Cr. App. R. 164, 168-169. Nor was it within that considered by the House in
R. v Horseferry Road Magistrates’ Court, Ex p. Bennett
(1994) 98 Cr. App. R 114,
[1994] 1 A.C. 42
. As Mr Meeke Q.C., for
J
, roundly acknowledged, the prosecution had not been guilty of any devious, underhand or manipulative conduct. They had not sought to take unfair advantage of a technicality or to prejudice the conduct of the defence in any improper way. The delay in prosecuting J, in no way the fault of the prosecution, learning of serious criminal conduct when it was too late to prosecute under s.6, sought to discharge its public duty by prosecuting under s.14. It was a decision which the general public would applaud.”
Lord Steyn does not rule finally on the point. At para 38:
“Although this conclusion is sufficient to dispose of the appeal I will also consider the position under the common law. The present case is not easily accommodated under any of the traditional categories of abuse of process. It is not profitable to try to analyse it by reference to
dicta
about wholly different categories of abuse of process. On the other hand, it must be borne in mind that the category of cases in which the abuse of process principles can be applied are not closed: R.v Latif [1996] 2 Cr. App. R. 92 100-101,
[1996] 1 W.L.R. 104
, 112-113. In any event, this is pre-eminently a corner of the law which must be considered from the point of view of legal principle.”
Nor does Lord Clyde. At para 49:
“The case does not fall readily into the established categories of abuse but the concept of abuse may defy exhaustive definition. What the prosecution did here, albeit with good intention and without malice or dishonesty, was to cut across the intention of Parliament and in particular the provision of a protection for a person against whom a particular offence had been alleged. The substance of the argument on abuse is that the prosecutor should not be entitled to circumvent that protection by resorting to another offence which is less suited to the facts of the case. In my view it can at least be argued that it would be something so wrong as to make it proper for a court to refuse to allow a prosecution to proceed on such a course. The essence of the wrong is an illegality which in turn is based upon a misconstruction of
the Act
. While the label of abuse may not be appropriate for such a situation the illegality of the course would justify the intervention of the court. At the heart of the matter is the proper understanding of the relationship between the two statutory provisions. The two lines of approach may eventually turn out to be different ways of viewing the same point. But they both lead to the same result. ”
Lord Rodger seems to incline to the opposite view. At para 61:
“In the court below, and again in this House, Mr Meeke Q.C. argued that bringing the prosecution under s.14, in order to avoid the time-bar applying to s.6, amounted to an abuse of process on the part of the Crown. The argument was rejected in the courts below. It seems to me that if, on a proper construction of s.14 in the context of
the 1956 Act
as a whole, it was open to the Crown to prosecute the appellant under s.14, then there can have been no abuse of process. But, equally, if on a proper construction of the legislation, it was not open to the Crown to prosecute the appellant under s.14, the appeal must succeed. The critical question is one of the construction of
the Act
. It appears that counsel for the appellant veered away from that approach because of the rag-bag nature of
the 1956 Act
as described by my noble and learned friend Lord Bingham of Cornhill, in R. v K [2002] 1 Cr. App. R. 121,
[2002] 1 A.C. 462
, para. 4. Counsel considered that, since
the 1956 Act
disclosed no single, coherent legislative scheme, one could not argue that s.14 must be construed and applied in a way that respected the time-bar applying to s.6 offences. The fact that
the 1956 Act
is not by any means entirely coherent is not, however, a reason for the courts to abandon their usual approach to interpretation and to construe its provisions in isolation, as if they had no bearing on one another ”
Of course Baroness Hale is clear that it was not an abuse. At para 81.
“In my view, the countervailing considerations of policy and justice did not require the judge to stay the proceedings as an abuse of process and he was entirely justified in refusing to do so. The public conscience would be more affronted by the prohibition of prosecution for offences which have undoubtedly been committed. Although the categories of abuse of process cannot be closed, it would be a misuse of principle and language to call what happened in this case an abuse.”
In our judgment the
ratio decidendi
is clearly based on the words of the statute and the clear parliamentary intention behind them.
23.
There are many ways in which the question of lesser verdict may arise. In the context of the statutory prohibition on the commencement of proceedings it may be helpful to describe some of them.
a.
The prosecution may bring a charge for the lesser offence.
b.
The defence may ask for a count alleging the lesser offence to be added to the indictment.
c.
The judge may of his own motion order a count to be added to the indictment.
d.
Without the addition of a further count-
i.
The prosecution - at any stage of the case up to the close of all the evidence – may wish to leave the possibility of a verdict of guilty of a lesser offence to the jury.
ii.
The defence may do likewise. On both the above the final decision lies with the judge.
iii.
The judge may decide of his own motion to direct the jury as to a possible verdict on a lesser charge.
e.
Sections 3
and
3
A of the
Criminal Appeal Act 1968
allow the Court of Appeal to substitute a verdict for a different offence than the one of which the appellant was convicted if it appears that either
i.
The jury must have been satisfied of facts which proved him guilty of the alternative offence (
section 3
), or
ii.
If he pleaded guilty, that the plea indicated an admission of facts which prove him guilty of the alternative offence (
Section 3A
which came into force on 1
st
September 2004).
In all these situations except a. and e. the eventual decision to add a count or to leave an alternative verdict is in the hands of the trial judge. In different situations and for different reasons the request to the judge to leave a lesser offence to the jury may be agreed or objected to by either the defence or the prosecution. Even if both sides agree on a particular course the judge may decide not to follow it. One example of such a situation concerns the question of a possible verdict, on a charge of murder, of manslaughter by reason of provocation. The prosecution may argue that the case is one of murder or nothing. The defence, frequently in such cases relying on self-defence, may argue likewise, believing that there is a danger that if a “compromise verdict” is left to the jury the defendant maybe convicted whereas if no such verdict was left he may well be acquitted altogether. The judge may however decide that there is evidence which could justify a verdict of manslaughter by provocation.
24.
Does a decision by the judge to leave a lesser offence to the jury for its consideration amount to “the commencement of proceedings for the particular offence”? Two possibilities arise.
a)
In every case in which an alternative verdict is possible, either because it is provided for in the statute creating the principal offence or because of the provisions of
section 6 of the Criminal Law Act 1967
, proceedings have commenced in respect of all such offences from the moment the charge for the greater offence is laid. This proposition has only to be stated for its absurdity to become apparent. It would mean that in cases like the present a charge of rape could not be brought in respect of a 14 year old girl more than twelve months after the alleged offence since any such charge inevitably involves an allegation under
Section 6
of
the Act
.
b)
Proceedings commence in respect of the lesser offence at the moment at which the trial judge makes the decision to leave the lesser offence to the jury for its consideration and the defendant becomes liable to be convicted of it, or on appeal when the Court of Appeal decides to substitute a verdict of the lesser offence. Although in cases in which a count is added to the indictment and a plea is taken it can clearly be said that proceedings have commenced in respect of the offence alleged in the count, it is hard to see how that can apply to the leaving of an alternative verdict. There is no sense in which there have been any “proceedings” in respect of the offence. The proceedings have been brought in respect of a different and more serious offence. No verdict will be taken – or other order made by the court – in respect of the lesser offence if there is a conviction of the more serious one. The acquittal if there is one will be an acquittal on the count in the indictment. It is somewhat fanciful to suggest that the substitution of a verdict by the Court of Appeal (Criminal Division) amounts to the “commencement of proceedings”.
25.
Even if the taking of an alternative verdict to a lesser charge does not amount to the commencement of proceedings, is the wording of the Schedule such as to give rise to the conclusion that Parliament intended to prevent the conviction under any circumstances of an offender for conduct which amounts to an offence under
section 6
of
the Act
if proceedings are commenced for a more serious offence which is not subject to the limitation period? It was common ground in
J
that it is difficult if not impossible to discern a coherent framework within
the Act
. At para 48 Lord Clyde:
“It has of course to be accepted that
the Act
of 1956 is a consolidating statute and that a complete coherence is not necessarily to be found among all its provisions. But the two offences detailed in ss.6 (1) and 14 (1) have in substance co-existed in the legislative history over a long period and should be open to a mutually consistent interpretation.”
Lord Bingham at para 15:
“The historical derivation of
the 1956 Act
had been shown to result in much internal inconsistency and lack of coherence (see, for example, R v K
[2001] UKHL 41
, [2002] 1 Cr. App.R. 121
[2002 1 A.C. 462
, para.4) but the deficiencies of
the Act
cannot absolve the court from its duty to give effect to clear and unambiguous provisions.”
Baroness Hale put it more trenchantly at para 89:
“In short,
the 1956 Act
was a mess when it was enacted and became an ever greater mess with later amendments.”
Lord Bingham’s view, which we have already quoted, though not of course part of the
ratio decidendi
, was that the prohibition did not extend to the possibility of alternative verdicts (Para 23).
26.
Their Lordships in
J
were principally concerned with the evasion, circumvention or “side-stepping” of the limitation (freely admitted by the prosecution) involved in charging the general offence which was not time-barred in preference to the more specific offence which was, e.g. Lord Steyn at para 37, Lord Clyde at para 49, Lord Rodger at paras 63 and 64.
27.
As Mr Evans who appeared for the Crown submitted:
a)
Schedule 10’s words are specific. “A prosecution may not be commenced more than 12 months after the offence charged.” Here there was no question of the Crown commencing the prosecution of the defendant with either a
section 6
or a
section 14
offence. The prosecution commenced, and continued until the jury’s verdict, as a prosecution for rape.
b)
There was strong support from Lord Bingham (para 14) as well as from Baroness Hale for the public policy public interest considerations of bringing within the criminal justice system those mature men who deliberately groom under age girls for sex and succeed in having sexual intercourse with them, and guarded support from at least one other of their Lordships (Lord Rodger at para 57).
Parliament has, since 1956, enacted the
Criminal Law Act 1967, section 6(3)
of which enable juries to return verdicts on lesser charges when the facts they find fall short of proof of the greater. In
Fisher, Marshall & Mitchell (George)
[1969] QB 114
Cusack J ruled at first instance that a verdict of unlawful sexual intercourse in not available on a charge of rape. This judgment was approved in
Mochan
[1969]
1 WLR 1331. The reasoning in those cases had nothing to do with the limitation period but was based upon the age of the victim, crucial in the
section 6
offence, but irrelevant in a
section 1
offence. Indecent assault, at least since the decision of this court in
Hodgson
(1973
)
57 Cr App R 502, as a lesser alternative to rape in cases where the victim is over 13 but under 16, has long been a classic example of the workings of
section 6(3)
.
28.
In our judgment to hold that the express intention of Parliament in 1967 as to alternative verdicts should be thwarted by an express intention of Parliament in 1956 concerning the commencement of proceedings for a different offence than the one the subject of the alternative verdict would be quite wrong.
29.
We find that the learned trial judge was right to rule as he did. Neither the speeches in
J
nor the words of Schedule 10 compel a conclusion that he was not. This appeal must therefore be dismissed. | {"ConvCourtName": ["Carlisle Crown Court"], "ConvictPleaDate": ["7th April 2005"], "ConvictOffence": ["indecent assault"], "AcquitOffence": ["indecent assault", "rape"], "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": ["14 years and six months old"], "OffJobOffence": ["14 years and six months old"], "OffHomeOffence": ["family home"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["daughter of the appellant’s former partner"], "VictimType": ["daughter"], "VicNum": ["The complainant"], "VicSex": ["daughter"], "VicAgeOffence": ["12 or 13 years old"], "VicJobOffence": ["12 or 13 years old."], "VicHomeOffence": ["family home"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["informed the police."], "DefEvidTypeTrial": ["claimed that it had been with her consent"], "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": ["Sexual Offences Act 2003 which came into force on 1st April 2004."], "SentGuideWhich": ["Sexual Offences Act 2003", "Sexual Offences Act 1956 (the Act)"], "AppealOutcome": ["appeal must therefore be dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["learned trial judge was right to rule as he did"]} | {"ConvCourtName": ["Carlisle Crown Court"], "ConvictPleaDate": ["2005-04-07"], "ConvictOffence": ["indecent assault"], "AcquitOffence": ["indecent assault", "rape"], "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": ["14"], "OffJobOffence": ["Child"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Female"], "VicAgeOffence": ["12-13"], "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": ["against conviction"], "AppealGround": ["New legislation/laws"], "SentGuideWhich": ["Sexual Offences Act 2003", "Sexual Offences Act 1956 (the Act)"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["learned trial judge was right to rule as he did"]} | 112 |
Case No:
2004/3074/A9
Neutral Citation Number:
[2004] EWCA Crim 3380
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Thursday, 9 December 2004
B E F O R E:
LORD JUSTICE MAY
MR JUSTICE BEATSON
SIR CHARLES MANTELL
- - - - - - -
R E G I N A
-v-
WILLIAM ROBERT DAVIES
- - - - - - -
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 HOLLIER
appeared on behalf of the APPELLANT
MR M FARMER
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
MR JUSTICE BEATSON: On 26th April 2004 at the Crown Court at Bristol, the appellant now aged 42 who had pleaded guilty on rearraignment at the same court on 26th November 2003 was sentenced by His Honour Judge Darwall-Smith to two years' imprisonment on each of nine counts of theft, the sentences to be concurrent. 72 offences of theft were taken into consideration. A confiscation order in the sum of £156,000 was imposed pursuant to
section 73
of the
Criminal Justice Act 1988
; £35,000 out of this was to be paid in compensation to the complainant. A sentence of two years' imprisonment consecutive to the two years was imposed in default of payment of the confiscation order. The appellant was also ordered to pay £10,000 towards the prosecution costs. He appeals against the sentence of two years' imprisonment in respect of the thefts, the total amount of the confiscation order and the costs order with leave of the single judge.
2.
The appellant was a longstanding employee of a coach hire business, Coombes Travel, set up by the complainant Mr Coombes. He was also a director of BLC Enterprises, a business involved in vehicle purchase and repairs also owned by the complainant.
3.
From 1988 the appellant, as Coombes Travel's Traffic Manager, had the responsibility of quoting for potential coach hire trips, arranging the drivers and billing the jobs. One of the firm's customers was the Birmingham Hospital Saturday Fund. The firm provided coaches to take and return tourists from Birmingham to the Weston-super-Mare area where they stayed for a week. Excursions were arranged on some of the days. The appellant would send the bill for these to the Hospital Saturday Fund. On Fridays however there was an optional rather than included excursion. The tourists paid a fixed fee directly to the coach driver who would hand the money over to the appellant. The appellant should have handed the money to the firm's administration section, so that it would be paid into company's accounts and invoices could be created.
4.
Mr Coombes and his wife became concerned about the lack of takings from the Friday trips. Mrs Coombes instructed the regular Friday driver to tell her how many people were on each trip. She found the appropriate sum of cash and made a note of the serial numbers on the notes. She then swapped her cash with the numbers recorded with the driver and the driver would then hand the marked notes to the appellant. The administrator of the account then made a note of the serial numbers of notes handed to her. None of the marked notes turned up.
5.
The appellant was arrested in September 2002 and when interviewed agreed that he had collected the money from the Friday trips and used it for personal and business matters. He did not consider this to be unjustified. He thought he had been doing it for a couple of years. He said he had been given a free hand to do as he wished. The total amount stolen was just over £35,400. The appellant was of previous good character. A pre-sentence report recommended a community punishment order if a non-custodial disposal was considered appropriate. The report stated there was a low risk of his reoffending and his attitude to the offence was one of contrition.
6.
The sentencing judge stated that the appellant had stolen some £35,000 from his employer, it was clear that he had been living beyond his means on his £24,000 a year salary for a long time. Apart from expensive holidays and a nearly new expensive car he had been an obsessive gambler on the stock market. The judge stated that the appellant's criminality extended for much longer than he had said. He took account of the appellant's good character and the fact that although he did not plead guilty at the earliest opportunity he had saved the public purse by his pleas. There was no alternative to a custodial sentence and after referring to the fact that this court has laid down guidelines as to sentences for trusted employees who steal from their employer, he took into account the 72 TIC offences and imposed the sentence.
7.
Before the judge it was agreed by the parties that for the purposes of the application for a confiscation order he had benefited in the sum of £280,700. It had been submitted that the sentencing judge should not make the statutory assumptions at all, or alternatively that they should be reduced. Because it was accepted that in respect of a number of share transactions there was some element of claiming the same sums twice, it was agreed that the benefit figure would be reduced to £260,000. It was initially agreed that the appellant's assets totalled £175,000 on the basis that he had a half share in the family home, 21 Pern Road, and the judge made a confiscation order of £175,000. He also made the costs order that is also the subject of this appeal. As a result of further submissions by the parties later that day, the amount of the confiscation order was reduced to £156,000.
8.
The grounds of appeal settled by Mr Hollier who appeared before us are that the sentence of two years' imprisonment was manifestly excessive and failed to give the appellant sufficient credit for his guilty plea, the total sum of the confiscation order was wrong because it did not include the costs of the sale of the house and, third, the judge erred in ordering the appellant to pay prosecution costs of £10,000 a sum that through lack of means he was unable to pay within a reasonable period.
9.
Before us Mr Hollier stated, in relation to the appeal against the two year sentence of imprisonment, that he recognised given the sums of money, a sentence of two years for theft and breach of trust by an employee is within the current accepted tariff. He submitted that in essence his was a plea for mercy and referred us to the situation that the appellant will find himself in when he leaves prison and to the fact that he has taken swift steps to start to sell property and pay on the confiscation order.
10.
We have concluded that in view of the totality of the criminal activity for which the appellant was sentenced, two years' imprisonment on a late plea is not manifestly excessive.
11.
We turn to the appeals concerning the confiscation and costs orders. Since leave was granted a further application has been made. Leave is sought to appeal the confiscation order on the ground that £156,000 was a sum produced on an inaccurate over-valuation of the family home. At the confiscation hearing the basis of calculation of the appellant's interest in the home was a gross value of £372,000. Mr Hollier submits, on the basis of a valuation since that date by Mr Dunn of C J Hole, a local firm of estate agents, that the figure should be £265,000. Mr Dunn's affidavit states that would be the figure for a quick sale on the date the affidavit was sworn, 1st December 2004. He states that he had advised in August that the house should be marketed at £275,000. The effect of applying the lower figure is to reduce the appellant's share of the beneficial interest in the house and thus Mr Hollier submits that the confiscation order should be reduced.
12.
Mr Farmer, who appears before us on behalf of the Crown, agrees that the valuation figure given to the learned judge was
at that time
an over-valuation. In view of that agreement it is not necessary for us to go into the details of the valuation at that time and the fact that it was not challenged. Mr Hollier frankly said that that was due to an oversight on his part. The valuation before the judge was based on an estate agent's valuation of the house in the year 2000 to which the Nationwide Building Society House Price Calculator had been applied first in February 2004, at the time of the initial prosecutor's statement, and then just before the hearing in April. After the price calculator was applied the resulting figure was reduced. The prosecution statement said this was so as to err on the side of fairness. The February valuation produced a valuation of £275,000 and the April valuation one of £372,000.
13.
It is clear from the decision of this court in
Lemmon
(1991) 13 Cr.App.R (S) 66 that it is important for the court considering making a confiscation order to have an up-to-date professional valuation, and in that case a valuation by the defendant in that case contained in a statement to his bank 15 months earlier when applying for a loan, which was contested at the hearing but nevertheless applied, was said to be inadequate.
14.
We shall return to the effect of the conclusion that the valuation given to the judge was an over-valuation and that he was thus, through no fault of his own, misled and unable to fix the amount of the confiscation order on a true valuation of the property on that date. We, however, observe that what is relevant is the value of property at the date the matter comes before the court hearing the confiscation proceedings. For that reason the figure of £265,000 in December 2004 contained in Mr Dunn's affidavit is not one which is relevant in respect of confiscation proceedings in April. To do otherwise would be to allow those subject to a confiscation order on a falling market to bring before this court changes in valuation as they occur. The correct way of dealing with falls in the property market affecting any of the property upon which the confiscation order was made is for an application to be made for a variation or a certificate of inadequacy. We have concluded that in the circumstances before us and on the evidence before us the correct valuation in April 2004 is £275,000.
15.
We turn to the omission to deduct from the value of the house the costs of the sale of the house. This matter was also not drawn to the attention of the learned judge by Mr Hollier but there is evidence before us as to these costs. Mr Dunn's affidavit states there would be a one and a quarter percent commission on the sale price in respect of the estate agents fees and Mr Graham Lloyd gives evidence as to the solicitor's charges. It is accepted by Mr Farmer that these costs should have been deducted and the figures produced by Mr Hollier on a schedule are also agreed. Accordingly, the estate agents' costs are agreed at £3,312.50, the VAT on that sum is £579.68; the solicitor's costs are £525, the VAT on that sum is £91.87; and there is a disbursement of £8. Again, the fact that these costs were not deducted is through no fault of the learned judge. His attention was not drawn to the fact that there would be these costs. Mr Farmer was quite right to accept that these costs are properly deductable. That this is so is seen from the decision of this court in
Kramer
(1992) 13 Cr.App.R (S) 390 and the terms of the order in
Lemmon's
case (1991) 13 Cr.App.R (S) 66.
16.
Applying those figures to the figure of £156,000 for the confiscation order, produces a figure of £75,241 for the appellant's fifty percent share of the family home. We propose to reduce the amount of the confiscation order to reflect this.
17.
Mr Hollier also submitted that disposals of vehicles and shares since the confiscation order was made have not realised the sums assumed in the table prepared at the time of the confiscation order. He invited us to take account of the sums realised in fixing the amount of the confiscation order. To do this is to use this court to deal with subsequent adjustments which are properly the subject of an application to the Magistrates Court and, if necessary, for a certificate of inadequacy. We accordingly decline to do so.
18.
Returning to the figures used for the determination of the confiscation order in April, we substitute a figure of £75,241 for the beneficial interest in the family home, but leave the remainder of the figures used in the calculation in respect of shares, motor vehicles and shares sold during the currency of the proceedings as they were at that time. The consequence of the agreed arithmetic is that the total is just about £105,600. There has been a practice of rounding figures and Mr Farmer has indicated that he is content for the confiscation order to be for £105,500.
19.
Accordingly, we reduce the amount of the confiscation order from the amount ordered to be paid by the learned judge to £105,500. This takes into account the gross sale price on its value in April and the sale costs that have to be deducted from the value of the house. We also set aside the costs order. It was properly agreed by Mr Farmer in view of
R v Nottingham JJ, ex parte Fohman
(1987) 84 Cr.App.R 316 and
R v Hapes
(1989) 11 Cr.App.R (S) 38, that the judge erred in making this order because, through lack of means the appellant would be unable to pay within a reasonable period.
20.
Mr Hollier also submitted that if the amount of the confiscation is reduced consideration should properly be given to the period to be served in default. By section 139 of the Powers of Criminal Courts (Sentencing) Act the maximum sentence in default of a confiscation order exceeding £100,000 but not exceeding £250,000 is three years. The learned judge imposed a sentence of two years in default of the payment of the confiscation order he made. Mr Hollier submits that on a lower figure consideration should be given to this period. He submits that the aim of the period is not to punish by to induce a person to pay. It does not, however, follow from this that a reduction in the amount of the order leaving a sum within the permissible band for a given sentence in default should lead to a reduction in the length of sentence in default. We do not consider that there should be a reduction in the period in default in this case.
21.
To the extent indicated in this judgment this appeal is allowed. | {"ConvCourtName": ["Crown Court at Bristol"], "ConvictPleaDate": ["26th April 2004"], "ConvictOffence": ["theft"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["on rearraignment"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Bristol"], "Sentence": ["confiscation order", "two years' imprisonment on each", "two years' imprisonment consecutive"], "SentServe": ["consecutive", "concurrent."], "WhatAncillary": ["confiscation order in the sum of £156,000"], "OffSex": ["He"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["employee of a coach hire"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["longstanding employee"], "VictimType": ["his employer"], "VicNum": ["his employer"], "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": ["found the appropriate sum"], "DefEvidTypeTrial": ["did not consider this to be unjustified."], "PreSentReport": ["low risk of his reoffending"], "AggFactSent": ["72 offences of theft were taken into consideration", "amount stolen was just over £35,400."], "MitFactSent": ["previous good character.", "contrition"], "VicImpactStatement": ["data not available"], "Appellant": ["APPELLANT"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against the sentence"], "AppealGround": ["failed to give the appellant sufficient credit", "manifestly excessive", "judge erred in ordering the appellant to pay"], "SentGuideWhich": ["Criminal Justice Act 1988"], "AppealOutcome": ["appeal is allowed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["figure given to the learned judge was at that time an over-valuation"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Crown Court At Bristol"], "ConvictPleaDate": ["2004-04-26"], "ConvictOffence": ["theft"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No", "Yes"], "PleaPoint": ["on rearraignment"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Bristol"], "Sentence": ["two years' imprisonment consecutive", "confiscation order", "two years' imprisonment on each"], "SentServe": ["Combination", "Concurrent"], "WhatAncillary": ["confiscation order in the sum of £156,000"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Company"], "VicNum": ["1"], "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": ["Offender denies offence"], "PreSentReport": ["Low risk of reoffending"], "AggFactSent": ["Financial gain /value", "72 offences of theft were taken into consideration"], "MitFactSent": ["contrition", "previous good character."], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against the sentence"], "AppealGround": ["judge erred in ordering the appellant to pay", "failed to give the appellant sufficient credit", "manifestly excessive"], "SentGuideWhich": ["Criminal Justice Act 1988"], "AppealOutcome": ["appeal is allowed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["figure given to the learned judge was at that time an over-valuation"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 179 |
No:
200602939/A6
Neutral Citation Number:
[2006] EWCA Crim 2203
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Thursday, 27th JULY 2006
B E F O R E:
MR JUSTICE GRAY
MR JUSTICE MCCOMBE
- - - - - - -
R E G I N A
-v-
KIM RAMPLEY
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR A VOLLENWEIDER
appeared on behalf of the APPELLANT
- - - - - - -
J U D G M E N T
1.
MR JUSTICE GRAY: This is an appeal against a Sexual Offences Prevention Order (to which we will refer as "a SOPO" brought with the leave of the Single Judge.
2.
The SOPO in this case was imposed in the following circumstances. Nearly 3 years ago, on 20th August 2003, at Lime Street railway station in Liverpool the appellant, Kim Rampley, stood behind a female who was waiting to get off a train. He squeezed her bottom with both hands and growled towards her. He then did the same again, whereupon the female left the train. The Liverpool Magistrates' Court, on 23rd September 2003, sentenced the appellant to a 3 year community rehabilitation order in respect of that assault.
3.
The facts of the instant offence, which was committed in March 2006, were these. At about 6.15 pm on 9th March 2006 a 15 year old girl was on a platform at Manchester Piccadilly railway station with her mother and her aunt. The appellant stood next to the girl and touched her bottom. The girl's mother saw this and asked what he was doing, at which stage the appellant moved his hand to the girl's belt. The mother shouted: "Get your hands off my daughter" and went to hit the appellant's hand but she missed. The appellant said he was only touching the girl's belt and the mother said: "Well don't." The mother later pointed out the appellant and he was arrested.
4.
When interviewed he made no comment.
5.
The appellant pleaded guilty to the offence and was committed to the Crown Court for sentence. On 19th May 2006, in the Crown Court at Manchester, the appellant was sentenced by His Honour Henshall as follows: for the sexual assault on the 9th March 2006, a term of 9 months' imprisonment was imposed. The commission of that offence was a breach of the community rehabilitation order which, as we have said, had been imposed back in 2003. For that breach the appellant was sentenced to a consecutive term of 3 months' imprisonment. The total sentence therefore was one of 12 months' imprisonment. The learned judge directed that 70 days spent on remand should count towards sentence.
6.
What is relevant for present purposes is that the learned judge also imposed a SOPO the terms of which are, broadly speaking, conventional in this kind of case. We will return to the terms of the order shortly.
7.
Before that, however, it is material for the purposes of this appeal to mention the fact, firstly, that in addition to the two offences already mentioned, this appellant has a number of further previous convictions for sexual offences. In particular, he was on 5th April 2002 sentenced to a 12 month community rehabilitation order by the magistrates for indecent exposure with intent to insult a female. Further, on 14th May 2002, not long afterwards, the appellant was conditionally discharged for 12 months for having committed an act outraging public decency. We note also that there are a great number of previous convictions for drunkenness.
8.
The second material fact which we should mention is that at the time of the instant offence the appellant was on bail for yet another public order offence which he was alleged to have committed against a 15 year old girl, an offence which we are told also had sexual overtones.
9.
There was, further, before the sentencing court a document which evidences police concerns about the conduct of the appellant on a number of other occasions.
10.
The appellant is now aged 53. We have two reports about him. Firstly, there is a helpful pre-sentence report which records the appellant as not having accepted culpability for the instant offence. It is said he could not recall planning or committing it, although he does accept that he did commit an act of indecency by touching the girl's bottom. The report also describes a long-term excessive drinking habit. The author of the report considers that the appellant has an established pattern of sexually inappropriate behaviour. He has been now under continuous supervision since April 2002. The sexually intimidating behaviour usually occurs after the appellant has drunk alcohol. It has escalated from exposing himself to masturbating in front of females late at night and on occasions to indecently assaulting females. On each occasion the appellant afterwards claimed, and we have no reason to doubt him, that he remembers nothing about the offence.
11.
Also before the sentencing court was a psychological report from Dr Hossack, who concluded that the appellant's coping style was flawed and dysfunctional and that he had traits which impaired the level of personal insight needed to stop him re-offending. In the psychologist's opinion he remains a risk to young naive individuals likely to be females.
12.
When he came to sentence the appellant His Honour Judge Henshall noted that at the time of the offence the appellant had been on bail for an offence involving a 15 year old girl and was also subject to a community rehabilitation order. The learned judge said he took account of the two reports to which we have referred whilst he considered that the risk of further specified offences was significant, he felt unable to say that there was a risk of serious harm. For that reason the learned judge imposed a standard determinate term.
13.
However, the learned judge considered that the offence was aggravated by the repetitious nature of the appellant's behaviour and his failure to respond to a benefit from the courses he had completed. There was also an element, in the judge's view, of targeting particular victims and frequenting places such as railway stations to commit the offences. He considered that there was in the appellant's character an obsessive streak involving sexual behaviour. The judge then imposed the sentence to which we have already referred.
14.
As we have indicated, no complaint is made on behalf of the appellant about the determinate sentence imposed for the instant offence or about the 3 month sentence for breach of the community rehabilitation order. As to the SOPO, which the learned judge was invited to make, the judge said this:
"As to the [SOPO], having considered that matter,
Section 104
[of the
Sexual Offences Act 2003
] requires that I must be satisfied that it is necessary to protect the public from what is described in
the Act
as serious sexual harm, which means and includes serious physical or psychological harm. Whilst similar to, it is not in my judgment precisely the same as that required under the
Criminal Justice Act 2003
Section 224
sub-
section (3
), which includes death or serious physical injury, which also includes psychological harm, and in my judgment, the conditions for a [SOPO] are in this case fully made out, and the order will be made in the terms that have been drafted, with the exception of paragraph six and seven will not apply. The length of the order will be until further notice."
15.
Before us today, Mr Vollenweider has made submissions which are clear and well thought out and we are grateful for them. He opened the case by conceding that, as the learned Single Judge had indicated it is not arguable that the terms of the SOPO which was in fact imposed in this case were inappropriate or excessive. Accordingly, Mr Vollenweider did not pursue his complaint in respect of the width of some of the provisions of the SOPO.
16.
As to that, we would only say this. We consider that paragraphs 3 of the order which was imposed and approved in the case of
Re: H
broadly corresponds with a paragraph of SOPO which was imposed in the present case. We do not accept that the words "stay overnight" are imprecise or too wide. As to paragraph 4 of the present SOPO, we consider that its terms are clear. So we would not have upheld an appeal in relation to the terms of the order.
17.
The point which is pursued by Mr Vollenweider is this. He contends that the finding of the learned judge that the appellant did not pose a risk of serious harm to the public harm, within the meaning of
section 229
of the
Criminal Justice Act 2003
precluded him from making an order under
section 104
of the
Sexual Offences Act 2003
because under the latter statute it must be shown that the order is necessary to protect the public from serious sexual harm. That requirement is, according to the argument of Mr Vollenweider, materially indistinguishable from the condition which must be satisfied before an order can be made under
section 229
of the Criminal Justice Act.
18.
We turn to the relevant provisions starting with
section 229
of the
Criminal Justice Act 2003
, which so far as material, is in these terms:
"(1) This section applies where--
(a) a person has been convicted of a specified offence, and
(b) it falls to a court to assess under any of sections 225 to 228 whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences."
We need read no more of the section.
19.
Before leaving
that Act
, however, we should refer to
section 224(3)
which defines "serious harm" to mean "death or serious personal injury whether physical or psychological". For the purpose of the argument before us those are key words in the
Criminal Justice Act 2003
.
20.
We turn now to
section 104
of the
Sexual Offences Act 2003
which provides at
section 104(1)
:
"
(1) A court may make an order under this section in respect of a person ('the defendant') where any of subsections (2) to (4) applies to the defendant and--
(a) where subsection (4) applies, it is satisfied that the defendant's behaviour since the appropriate date makes it necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant;
(b) in any other case, it is satisfied that it is necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant."
In section 106(3) s the words "protecting the public or any members of the public from serious sexual harm from the defendant" are defined to mean "protecting the public in the United Kingdom or any particular members of that public from serious physical or psychological harm caused by the defendant committing one or more offences listed in schedule 3."Those are the key words in the
Sexual Offences Act 2003
.
21.
Plainly the terminology employed in the two Acts is very similar. It is difficult to see why "serious harm" in the Criminal Justice Act should not in an appropriate case include "sexual harm." There are, however, differences. The first is that under the Criminal Justice Act the risk has to be shown to be "significant", whereas there is no corresponding requirement under the Sexual Offences Act. Secondly, an SOPO lasts for not less than 5 years, whereas there is no such provision in
section 229
of the Criminal Justice Act, which provides for the imposition of a life sentence in a case of an offender who is over 18.
22.
The third and, to our mind, most material distinction between the two Acts is what we consider to be the difference in degree between the serious harm needed under the respective Acts.
Section 229
of the Criminal Justice Act, 2003 defines serious harm to mean death or serious personal injury, whether physical or psychological, whereas the serious sexual harm required under
section 104
of the
Sexual Offences Act 2003
, is defined simply as including serious physical or psychological harm. As we say, we consider that there is a difference of degree. Moreover, we note that
section 229
is expressed in terms of injury, whereas
section 104
talks of physical or psychological harm. We consider that there is a qualitative difference between the concept of injury and the concept of harm.
23.
We fully recognise, however, that distinction between the two sections is a fine one. But distinction, in our judgment, there is. Accordingly we take the view that the judge was entitled to make an order under
section 104
, notwithstanding his decision not to make an order under
section 229
. In those circumstances, the appeal against the making of the SOPO must be dismissed.
24.
We only add that we consider that the judge was entirely right in his conclusion that this was a case where it is not only appropriate but also necessary to make a restraining order against a man who has unfortunately, for reasons much to do with alcohol, become a menace to females. Although it was not included in his formal grounds of appeal Mr Vollenweider, at the close of his submissions, invited us to amend the SOPO, if we were intending to uphold the order, by setting a determinate term rather than providing that remains in existence until further order. We have some sympathy with that submission, not least because of the age of the appellant. As we have said he is now aged 53. We think that there are advantages in the appellant knowing that there is a finite term to the order. We are therefore prepared to direct that the order should last for 7 years. If there is any breach of the order by the appellant, application can be made either to increase the term of the order or to reinstate the provision that it should continue until further order. | {"ConvCourtName": ["The Liverpool Magistrates' Court"], "ConvictPleaDate": ["23rd September 2003", "19th May 2006"], "ConvictOffence": ["assault"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["appellant pleaded guilty to the offence"], "PleaPoint": ["19th May 2006"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["70 days spent on remand"], "SentCourtName": ["The Liverpool Magistrates' Court", "Crown Court at Manchester, the appellant was sentenced"], "Sentence": ["For that breach the appellant was sentenced to a consecutive term of 3 months' imprisonment. The total sentence therefore was one of 12 months' imprisonment.", "9 months' imprisonment was imposed.", "Sexual Offences Prevention Order", "3 year community rehabilitation order"], "SentServe": ["For that breach the appellant was sentenced to a consecutive term of 3 months' imprisonment. The total sentence therefore was one of 12 months' imprisonment."], "WhatAncillary": ["3 year community rehabilitation order"], "OffSex": ["the appellant, Kim Rampley"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["appellant's coping style was flawed and dysfunctional and that he had traits which impaired the level of personal insight needed to stop him re-offending"], "OffIntoxOffence": ["behaviour usually occurs after the appellant has drunk"], "OffVicRelation": ["a female who was waiting to get off a train."], "VictimType": ["a female who was waiting to get off a train."], "VicNum": ["a female who was waiting to get off a train.", "15 year old girl"], "VicSex": ["a female who was waiting to get off a train."], "VicAgeOffence": ["15 year old girl"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["The girl's mother saw this"], "DefEvidTypeTrial": ["appellant's coping style was flawed and dysfunctional and that he had traits which impaired the level of personal insight needed to stop him re-offending"], "PreSentReport": ["helpful pre-sentence report which records the appellant as not having accepted culpability"], "AggFactSent": ["a number of further previous convictions for sexual offences.", "appellant's character an obsessive streak involving sexual", "an established pattern of sexually inappropriate behaviour.", "the offence was aggravated by the repetitious nature", "targeting particular victims and frequenting places such as railway stations to commit the offences", "failure to respond to a benefit from the courses"], "MitFactSent": ["appellant's coping style was flawed and dysfunctional and that he had traits which impaired the level of personal insight needed to stop him re-offending"], "VicImpactStatement": ["data not available"], "Appellant": ["the appellant, Kim Rampley"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["This is an appeal against a Sexual Offences Prevention Order"], "AppealGround": ["the finding of the learned judge that the appellant did not pose a risk of serious harm to the public harm, within the meaning of section 229 of the Criminal Justice Act 2003 precluded him from making an order under section 104 of the Sexual Offences Act 2003 because under the latter statute it must be shown that the order is necessary to protect the public from serious sexual harm."], "SentGuideWhich": ["section 229 of the Criminal Justice Act 2003", "should refer to section 224(3)", "Criminal Justice Act 2003 Section 224 sub-section (3)", "Section 104 [of the Sexual Offences Act 2003] requires that I must be satisfied that it is necessary to protect the public"], "AppealOutcome": ["dismissed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we consider that the judge was entirely right in his conclusion that this was a case where it is not only appropriate but also necessary"]} | {"ConvCourtName": ["The Liverpool Magistrates' Court"], "ConvictPleaDate": ["2006-05-19", "2003-09-23"], "ConvictOffence": ["assault"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know", "70 days spent on remand"], "SentCourtName": ["The Liverpool Magistrates' Court", "Crown Court At Manchester"], "Sentence": ["For that breach the appellant was sentenced to a consecutive term of 3 months' imprisonment. The total sentence therefore was one of 12 months' imprisonment.", "9 months' imprisonment was imposed.", "Sexual Offences Prevention Order", "3 year community rehabilitation order"], "SentServe": ["Consecutive"], "WhatAncillary": ["3 year community rehabilitation order"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Had mental health problems"], "OffIntoxOffence": ["Yes-drinking"], "OffVicRelation": ["Stranger"], "VictimType": ["Individual person"], "VicNum": ["2 of 2", "1 of 2"], "VicSex": ["All Female"], "VicAgeOffence": ["2 of 2"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["No"], "ProsEvidTypeTrial": ["Eye-witness testimony"], "DefEvidTypeTrial": ["Mental Health / Insanity"], "PreSentReport": ["Medium risk of reoffending"], "AggFactSent": ["an established pattern of sexually inappropriate behaviour.", "appellant's character an obsessive streak involving sexual", "targeting particular victims and frequenting places such as railway stations to commit the offences", "failure to respond to a benefit from the courses", "the offence was aggravated by the repetitious nature", "Previous convictions"], "MitFactSent": ["Mental health problems/difficulties"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Sentence (is unduly excessive)"], "AppealGround": ["Judges use of acts/sections when sentencing"], "SentGuideWhich": ["should refer to section 224(3)", "section 229 of the Criminal Justice Act 2003", "Criminal Justice Act 2003 Section 224 sub-section (3)", "Section 104 [of the Sexual Offences Act 2003] requires that I must be satisfied that it is necessary to protect the public"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we consider that the judge was entirely right in his conclusion that this was a case where it is not only appropriate but also necessary"]} | 450 |
Neutral Citation Number:
[2011] EWCA Crim 939
Case No:
201005421 B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 1 April 2011
B e f o r e
:
LORD JUSTICE ELIAS
MR JUSTICE MACKAY
MR JUSTICE HICKINBOTTOM
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R E G I N A
v
TREVOR CLARKE
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Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 0207 404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - -
Mr KA Volz
appeared on behalf of the
Appellant
Mr J Knight
appeared on behalf of the
Crown
- - - - - - - - - - - - - - -
Judgment
1.
LORD JUSTICE ELIAS: On 10 September 2010, the appellant, Trevor Clarke, was convicted by HHJ Issard-Davies and a jury at Inner London Crown Court on an indictment containing six counts: two counts of indecent assault on his stepdaughter, HH, and three of indecent assault on HH's sister, RH, as well as a single count of sexual activity with a child in which RH was the complainant. He was sentenced on 8 October to various sentences in relation to the particular counts amounting to eight years' imprisonment in all, and there were also associated SOPO and other orders. He now appeals against conviction by leave of the single judge.
2.
It is not necessary for the purposes of this appeal to go into the detail of the particular offences. Suffice it to say that they involved a number of assaults upon HH from around a period when she was 10 to 15 years of age, and upon RH, who was four years younger, from around 7 to 14 years of age. They involved inappropriate touching and simulated sex, and on one occasion a penis being inserted at least some way into the complainant's vagina. All of the allegations took place at the address the appellant shared with the complainant's mother and the two sisters.
3.
The mother was unaware of any sexual contact between the appellant and her daughters until she was informed by RH in January 2009, shortly before she reported the matter to the police. The complainant had in fact told her general practitioner of the alleged abuse some months earlier.
4.
The appellant made total denials of touching either girl in interview and at trial. He suggested in cross-examination that the evidence of RH had been invented, and she had in turn persuaded HH to make the false allegations of her own in order to bolster the credibility of RH's account.
5.
The case was put very firmly to both girls. It was indeed central to his defence that RH in particular began to hate and resent him because he had walked out on the mother temporarily in about 2003 to 2004, when he left without leaving any form of contact and went to live with a barmaid with whom he had been having an affair. That caused great distress, apparently, to the mother. The allegation was that RH as a consequence was willing to make a whole series of false allegations and to persuade HH to do likewise in order to exact her revenge.
6.
It was suggested in cross-examination that she had made various threats to the appellant, for example that she would "get him back" or "get him" for this. In addition, it was contended that she did not want the appellant to be reconciled with her mother upon his release from Brixton Prison. He had served a seven-year sentence for possession with intent to supply class A drugs, namely ecstasy. The defence pointed out that the timing of the complaint to the police was more than coincidental as it occurred the day before he was due to be released from Brixton Prison. But it necessarily followed that in advancing this particular defence, the fact that the appellant had been convicted for supplying drugs was of course bound to be before the jury.
7.
The allegation of collusion between the two girls was then raised in evidence-in-chief when the appellant was giving his evidence. It seems that at that stage an application was formally made (it may have been lodged earlier) for the bad character of the appellant to be put before the jury. It was said that since he was alleging that RH had sought to persuade her sister to give false evidence, that was an attack on her character and his record should therefore be admitted in evidence.
8.
The appellant had a number of convictions in addition to the supply of class A drugs to which we have made reference. The previous convictions were as follows: on 3 May 1977, taking a conveyance without authority, he received a fine; on 18 May 1978, having an offensive weapon, a 50-hour community service order; on 23 July 1982, an offence of robbery, having an imitation firearm with intent to commit an indictable offence and theft of a vehicle, he received 21 months' imprisonment; on 13 December 1984, ABH, 30 days' imprisonment; and on 12 February 1987, carrying a firearm with intent to commit an indictable offence and possessing an imitation firearm without a certificate, he received a total sentence of nine and a half years' imprisonment.
9.
The details of these offences and the particular circumstances under which he was convicted were not known.
10.
The learned judge considered the application. He indicated that if the appellant's case had simply been that these complainants were telling lies, then he would not have allowed this evidence to go in. But the appellant’s case went much further than that. He was attacking the character of RH in particular, and in those circumstances the judge considered that it was right that his own character should be before the jury. Accordingly, he permitted the jury to hear of the whole of this record, and not merely the drugs offence which they already knew.
11.
The evidence was admitted under gateway (g) of the Criminal Justice Act, section 101, which applies where the defendant makes an attack on another person's character. The judge considered a submission to the effect that it would be unfair to allow the evidence in, but he rejected that. He did not think it would have such an adverse effect on the fairness of the proceedings that it should not be admitted. He concluded, in essence, that given the defendant had attacked the character of the witnesses, the jury were entitled to know about his character.
12.
The relevant law
.
13.
Before considering the submissions, we turn to briefly consider the legislative provisions. The definition of "bad character" is contained in section 98 of the 2003 Act. It is as follows:
"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..."
14.
Section 101 then sets out the circumstances in which a defendant's bad character is admissible in evidence. The relevant provision here, as we said, is (g), which is as follows:
"(1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if—
...
(g) the defendant has made an attack on another person’s character."
15.
Section 106 then defines what is meant by an attack on another person's character. Sub-section (1)(a) provides:
"(1) For the purposes of section 101(1)(g) a defendant makes an attack on another person’s character if—
(a) he adduces evidence attacking the other person’s character.
..."
Sub-section 2 provides:
"(2) In subsection (1) “evidence attacking the other person’s character” means evidence to the effect that the other person—
(a) has committed an offence (whether a different offence from the one with which the defendant is charged or the same one), or
(b) has behaved, or is disposed to behave, in a reprehensible way..."
16.
We pause to note that the allegation that these alleged indecent assaults had been made up and that RH was seeking to persuade HH to give false evidence would fall under both limbs of sub-section (2).
17.
The fact that the evidence is in principle admissible does not, however, mean that it automatically is admitted in evidence. Section 101(3) provides as follows:
"(3) The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."
18.
There is therefore, as defence counsel properly emphasises, a mandatory obligation on the court to exclude evidence essentially if it would be unfair to admit it.
19.
Sub-section (4) then specifically requires the court, when deciding whether or not to exclude evidence, to "have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged".
20.
There is one final issue of law to which we should make reference. In the case of
Hanson
[2005] EWCA Crim 824
; 2 Cr App R 21, Rose LJ (Vice-President), giving the judgment of the court, said this at paragraph 15:
"15.
If a judge has directed himself or herself correctly, this Court will be very slow to interfere with a ruling either as to admissibility or as to the consequences of noncompliance with the regulations for the giving of notice of intention to rely on bad character evidence. It will not interfere unless the judge's judgment as to the capacity of prior events to establish propensity is plainly wrong, or discretion has been exercised unreasonably in the
Wednesbury
sense ..."
21.
The grounds of appeal
22.
Mr Volz, counsel for the appellant, submits that, in this case, the judge was wrong to admit these offences and to allow them to go before the jury. Their only purpose was to cause prejudice to the defendant and to cast aspersions on his character in the most general way. The convictions did not begin to demonstrate any propensity to commit any of the criminal offences with which he was charged since they did not relate to any sexual offences of any kind. Furthermore, they were not directly relevant to the issue of credibility. Counsel referred to the analysis by Rose LJ in the
Hanson
case, to which we made reference, when he analysed what is meant by a propensity for untruthfulness. Rose LJ said this (para 13):
" As to propensity to untruthfulness, this, as it seems to us, is not the same as propensity to dishonesty. It is to be assumed, bearing in mind the frequency with which the words honest and dishonest appear in the criminal law, that Parliament deliberately chose the word "untruthful" to convey a different meaning, reflecting a defendant's account of his behaviour, or lies told when committing an offence. Previous convictions, whether for offences of dishonesty or otherwise, are therefore only likely to be capable of showing a propensity to be untruthful where, in the present case, truthfulness is an issue and, in the earlier case, either there was a plea of not guilty and the defendant gave an account, on arrest, in interview, or in evidence, which the jury must have disbelieved, or the way in which the offence was committed shows a propensity for untruthfulness, for example by the making of false representations."
23.
Counsel also relies upon a later passage in the same judgment, paragraph 18, where Rose LJ said this:
" ... in any case in which evidence of bad character is admitted to show propensity, whether to commit offences or to be untruthful the judge in summing-up should warn the jury clearly against placing undue reliance on previous convictions. Evidence of bad character cannot be used simply to bolster a weak case, or to prejudice the minds of a jury against a defendant."
24.
Counsel submits that the admission of these convictions, given that they demonstrated neither propensity to commit the offence nor untruthfulness in the way described by Rose LJ, merely achieved the illegitimate objective of poisoning the jury's mind against the defendant. They were of no real purpose save to prejudice the minds of the jury. None of the convictions related to crimes of dishonesty, nor was it known whether any of the convictions were following non-guilty pleas when the defendant gave evidence, in which case it may be inferred that he was telling lies to the jury. Had that been the case, it might have warranted the admission of such convictions, but no details of these offences were provided.
25.
Counsel also relied upon a decision of this court in the case of
Chrysostomou
[2010] EWCA Crim 1403
. In that case the appellant was convicted of a number of offences, including possessing an imitation firearm with intent to cause fear of violence and harassment. He had suggested that the complainant was somebody who took class A drugs. The Crown in response wished to adduce in evidence four texts which were found on his telephone which suggested that he was capable of supplying class A drugs.
26.
The evidence was admitted by the judge under gateway (g), and this court concluded that it ought not to have been admitted and that the conviction was unsafe and should be quashed. Aikens LJ, giving the judgment of the court, said this at paragraph 40:
"... if it was not the Crown's case that the appellant had sold drugs to ER, what probative value did the texts have? At the most, all the texts could do would be to act as evidence which was consistent with the appellant being capable of supplying drugs to others. What relevance did that have to the charges against him? In our view, the texts had no relevance other than to blacken the general character of the appellant in the eyes of the jury and, therefore, dent the credibility of his evidence generally."
Counsel submits that that is in essence the position here.
27.
In our judgment, the appellant's analysis is, with respect, flawed because it fails to distinguish between the approach which these courts have adopted towards applications to admit evidence under section 101(1)(d), as was the position in
Hanson
, and where the gateway under which the evidence is admissible is sub-section (g). In the former case, the principles enunciated by Rose LJ in
Hanson
must be applied. If the prosecution wishes to adduce bad character evidence going to credit under that provision, it must demonstrate a propensity to untruthfulness in one of the ways identified in the judgment of Rose LJ. Indeed, section 103 of the 2003 Act, which defines what constitutes a "matter in issue between the defendant and the prosecution" under gateway (d) states in terms that it includes "a question whether the defendant has a propensity to be untruthful ..." There is no such provision in relation to gateway (g).
28.
Accordingly, the same restrictive approach to admissibility under gateway (g), where credibility is in issue, has not been adopted. The underlying principle is, to use the language of Singleton J giving the judgment of the Court of Appeal (Criminal Division) in
Jenkins
(1945) 31 Cr App R 1
,15 in a passage approved by the House of Lords in
Selvey v DPP
[1970] AC 304
that:
"... if the credit of the prosecutor or his witnesses has been attacked, it is only fair that the jury should have before them material on which they can form their judgement whether the accused person is any more worthy to be believed than those he has attacked. If a defendant is asking the jury to have regard to a witness's character when assessing that witness's evidence, so they should be entitled to consider his character when assessing his evidence."
29.
Although the character is adduced initially for the purpose of allowing the jury to determine whether the particular attack is true, it will inevitably affect the jury's assessment of a defendant's credibility as a whole. The authorities demonstrate that under paragraph (g) all convictions are potentially relevant to assist the jury to assess the character of the accused, and it is not necessary, or at least not generally so, for detailed facts about the nature and circumstances of those convictions to be put before the jury. That is only likely to be required where it is necessary to demonstrate a propensity for untruthfulness in paragraph (g) cases.
30.
The rationale for adopting this wider principle was succinctly expressed by the Vice-President, Hughes LJ, in the case of
Singh
[2007] EWCA Crim 2140
, where he said that the rationale for the gateway is:
"... the obverse of the reason why a defendant is entitled to plead his own good character in support of his claim that he should be believed. The reason why he is entitled to do that is because ordinary human experience is that people of proven respectability and good character are, other things being equal, more worthy of belief than those who are not. Conversely, persons of bad character may of course tell the truth and often do, but it is ordinary human experience that their word may be worth less than that of those who have led exemplary lives."
31.
In
Singh
itself the defendant was alleged to have robbed the complainant. He alleged that the complainant was on hard drugs, and that in fact it was an unidentified third party who had been responsible for the offence. The defendant had a record for such offences as assault and criminal damage. He submitted that it would not assist the jury to have that evidence before the jury; it did not go specifically to dishonesty. The court rejected that submission, Hughes LJ observing that the information would assist the jury to judge the complainant's credibility against that of the accused.
32.
There have been a number of other cases where this court has adopted the same approach to section 101(1)(g)cases, including
George
[2006] EWCA Crim 1652
,
Bahanda
[2007] EWCA Crim 2929
, and the case of
Lamaletie and Royce
[2008] EWCA Crim 314
. In
Lamatelie
two defendants were tried for inflicting grievous bodily harm on a taxi driver. They said that he had attacked them and they were merely seeking to protect themselves. The prosecution sought to have their bad character put before the jury. They had numerous convictions for violence. The court held that the evidence was admissible. In fact, the judge in that case directed the jury to the fact that the evidence of bad character went not to propensity, but only to the question of their credibility.(In fact the jury could it seems have relied on the evidence for propensity too since once evidence is admitted, it can be used for any purpose to which it is relevant: see
R v Highton
[2005] EWCA Crim 1985
;
[2006]1 Cr App R 7
.) The significance of the case here is that the fact that the convictions did not fall within the
Hanson
category, if I can so describe it, did not prevent the material being adduced before the jury.
33.
It follows that, in our view, the wider observations of the court in
Chrysostomou
, at least if taken out of the context of the facts of that particular case, do not properly reflect the test which this court has applied when dealing with applications to adduce evidence under paragraph (g). It does not appear that any of the authorities we have cited was referred to the court. A judge when considering gateway (g) can admit evidence which tends in a general sense to damage the character of the defendant in order to allow the jury to be able to assess the respective merits of the accounts given by a complainant and the defendant.
34.
It follows therefore that in our judgment it is not a justified criticism of the judge's exercise of discretion that the offences do not demonstrate a propensity for untruthfulness in the manner envisaged in
Hanson
.
35.
The position under the current law in this respect is in fact just as it was under the Criminal Evidence Act, as this court noted in
Hearne
[2009] EWCA Crim 103
.
36.
The second line of attack on the judge's decision is that, even if the evidence was, in principle, admissible, it was not appropriate to admit it in the circumstances of this case. Its prejudicial effect is such that it rendered it unfair for the judge to admit it.
37.
In particular, Mr Volz focused on the age of these convictions. The last of them was committed in 1987, over 20 years before these offences were committed. He relied on the case of
Dhooper
[2008] EWCA Crim 2892
, where the defendant was convicted of manslaughter and the judge at trial permitted the prosecution to adduce evidence under gateway (d) of a previous conviction for manslaughter recorded in 1994. The prosecution wished to rely on the similarity of the two attacks. The Court of Appeal, in the circumstances of that case, held that the conviction was too old. The judge had failed to have regard to the age of the conviction. Had he done so, the court considered that the proper exercise of discretion was to exclude this evidence, and the conviction was overturned.
38.
Dhooper
, it seems to us, is far removed from this case. First, it fell under gateway (d), not this gateway, and it was concerned with propensity to commit the offence rather than credibility.
39.
In this case, the jury already knew about the first offence. That was relatively recent. In our judgment, it was perfectly proper for the judge to consider that, given the fundamental nature of this attack on the complainant RH, the jury were entitled to know the whole of this appellant's character. We can see that where the only offences are historic offences there may well be circumstances where the court will take the view that it is not fair to rely upon them as fairly reflecting the defendant's character as it is at the time of trial. In those circumstances it might be unfair to admit it.
40.
Again, if these old convictions demonstrate a propensity to commit the offence and are sought to be adduced for the purpose of going to general credit, then it may be highly prejudicial and unfair to admit them. But that was not the position here. In our judgment, the judge was entitled to allow the jury to see the full range of the defendant's offending, in particular given that the admitted drugs offence - a recent one - was already before the jury. We suspect that, save perhaps for the robbery count, these historic convictions would in any event have been of little moment as far as the jury were concerned.
41.
We have to ask ourselves, as we have indicated, whether it was
Wednesbury
unreasonable for the judge to act as he did. We think he applied the proper principles and came to a judgment he was perfectly entitled to reach.
42.
We turn to the final ground, which is directed at the terms of the summing-up. This was as follows. The judge first reminded the jury that they knew about the drugs offence because it was a necessary part of the history of events. He then told them that there was no history of sexual offences at any stage in the antecedents, and then he said this:
"The fact that he has previous convictions for other offences patently does nothing to prove that he must have committed this offence. Just the one simply does not follow from the other. Nor does it follow that a man who has a criminal record cannot tell the truth. He may have a criminal record and may perfectly well be telling the truth when he gives evidence in this case. Well, again, the one does not exclude the other in any sense.
The reason that you have heard about the whole of his criminal record is that his defence, when it was put forward, did not stop at saying to each of the girls, "You are not telling the truth about this". It went further. It was suggested, you remember ... that once [RH] had decided to tell lies about what happened to her she then went further and spoke to her sister and successfully persuaded her sister, in respect of whom equally nothing had happened, to tell a completely fresh set of lies about what had happened to her."
43.
He then went on to say that, in the circumstances, it was right that the allegation made against the children should be balanced by revealing the bad character of the defendant.
44.
The principal complaint is that the judge did not in terms direct the jury that they should not convict on the basis of these convictions alone. In our judgment, that is in effect what he has done by reminding the jury that none of these offences were sexual offences and by telling them that patently they did not show that he had committed these particular offences for which he was charged. We think no jury, in the light of his direction, could possibly have thought it appropriate to infer guilt merely as a result of the criminal record.
45.
The judge did not in terms direct the jury that they could bear in mind these convictions when assessing the appellant's credibility, but it seems to us plain that that was the essence of the direction. In any event, the failure to make any such direction did not prejudice this defendant, in our view. We are satisfied that this summing-up was adequate and that the convictions are not unsafe, and therefore the appeal is dismissed. | {"ConvCourtName": ["Inner London Crown Court"], "ConvictPleaDate": ["10 September 2010"], "ConvictOffence": ["indecent assault", "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": ["Inner London Crown Court"], "Sentence": ["eight years' imprisonment in all", "associated SOPO and other orders"], "SentServe": ["eight years' imprisonment in all"], "WhatAncillary": ["associated SOPO and other orders"], "OffSex": ["his"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["address the appellant shared with the complainant's mother"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["his stepdaughter"], "VictimType": ["stepdaughter"], "VicNum": ["stepdaughter", "HH's sister, RH"], "VicSex": ["stepdaughter"], "VicAgeOffence": ["7 to 14 years of age", "10 to 15 years of age"], "VicJobOffence": ["7 to 14 years of age."], "VicHomeOffence": ["address the appellant shared with the complainant's mother"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["reported the matter"], "DefEvidTypeTrial": ["Wednesbury\n unreasonable", "total denials"], "PreSentReport": ["data not available"], "AggFactSent": ["previous convictions"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against conviction"], "AppealGround": ["the terms of the summing-up", "the judge was wrong to admit these offences and to allow them to go before the jury."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["appeal is dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["he applied the proper principles and came to a judgment he was perfectly entitled"]} | {"ConvCourtName": ["Inner London Crown Court"], "ConvictPleaDate": ["2010-09-10"], "ConvictOffence": ["sexual activity with a child", "indecent assault"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Inner London Crown Court"], "Sentence": ["associated SOPO and other orders", "eight years' imprisonment in all"], "SentServe": ["Concurrent"], "WhatAncillary": ["associated SOPO and other orders"], "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": ["1 of 2", "2 of 2"], "VicSex": ["All Female"], "VicAgeOffence": ["7", "10"], "VicJobOffence": ["Child"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Victim testimony"], "DefEvidTypeTrial": ["Wednesbury\n unreasonable", "Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["previous convictions"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against conviction"], "AppealGround": ["the terms of the summing-up", "the judge was wrong to admit these offences and to allow them to go before the jury."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["[learned judge]"]} | 493 |
Case No: 2004/05463, 2005/01121, 2005/00211
Neutral Citation Number:
[2005] EWCA Crim 1986
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
(1) The Common Serjeant of London at the Central Criminal Court
(2) His Honour Judge Statman at the Woolwich Crown Court
(3) His Honour Judge Hale at the Warrington Crown Court
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday, 28 July 2005
Before :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE RICHARDS
and
MR JUSTICE HENRIQUES
- - - - - - - - - - - - - - - - - - - - -
Between :
R
- and -
(1) Nurlon Abdroikov
(2) Richard John Green
(3) Kenneth Joseph Williamson
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Richard Carey-Hughes QC and Mr Michael Maher
for the Appellant
Abdroikov
Mr Richard Carey-Hughes QC and Mr Richard Hutchings
for the Appellant
Green
Mr Richard Carey-Hughes QC and Mr Simon Berkson
for the Appellant
Williamson
Mr
Mark Heywood and Miss Bobbie Cheema
for the Respondent
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Woolf :
Introduction
1.
This is a judgment of the Court to which all members of the Court have contributed:
2.
The three appellants, Mr Abdroikov, Mr Green and Mr Williamson appeal to this Court against their convictions. There is no factual connection between the circumstances of the offences of which they were convicted. The only link between the appeals is the fact that in the case of each appellant there is a complaint as to the composition of the jury at their respective trials. The jurors to whom objection is taken in the cases of Green and Abdroikov were serving police officers. In the case of Williamson, the objection is taken to a juror who is employed as a prosecuting solicitor by the Crown Prosecution Service (the “CPS”).
3.
In the case of Abdroikov, the presence of the police officer on the jury was only revealed by a note from the jury which referred to the fact of the presence of the police officer. The note was handed to the judge during the jury’s retirement.
4.
In the case of Green, the presence of a police officer on the jury was discovered inadvertently by a solicitor acting for the defendant sometime after the trial was over.
5.
In the case of Williamson, the solicitor sent a letter to the Court setting out his position. The letter was drawn to the attention of counsel appearing on behalf of Williamson. The counsel objected to the presence of that juror on the jury for cause because he was an employee of an agency which was bringing the prosecution. The trial judge ruled against the objection. Williamson contends that the ruling was wrong.
6.
Before considering the merits of the individual appeals further, we will consider the issue of when those whose occupation is within the criminal justice system should be empanelled as members of juries.
The Statutory Provisions
7.
Prior to the coming into force of the relevant provisions of the Criminal Justice Act 2003 (“the 2003 Act”), the presence of the two police officers and the employee of the CPS would have been unlawful under s.1 of the Juries Act 1974 (the 1974 Act) which provides:
“Subject to the provisions of this Act, every person shall be qualified to serve as a juror in the Crown Court, the High Court and county courts and be liable accordingly to attend for jury service when summoned under this Act, if-
(a.)
he is for the time being registered as a parliamentary or local government elector and is not less than eighteen nor more than [seventy] years of age; and
(b.)
he has been ordinarily resident in the United Kingdom, the Channel Islands or the Isle of Man for any period of at least five years since attaining the age of thirteen,
but not if he is for the time being ineligible or disqualified for jury service; and the persons who are ineligible, and those who are disqualified, are those respectively listed in Parts I and II of Schedule 1 to this Act.”
8.
Parts I and II of Schedule 1 contain 4 groups, (Groups A, B, C and D). Group A identified different members of the judiciary who are or had at any time been such a member of the judiciary as ineligible. Group B identified others concerned with the administration of justice including barristers and solicitors and “a member of any police force” and any person who at any time within the last 10 years has been a person falling within any description specified in this Group. Group C dealt with persons in holy orders and Group D dealt with the ineligibility of mentally disordered persons.
9.
Part II sets out the persons who are disqualified, including those who had been sentenced to specified custodial sentences.
10.
S.321 and Schedule 33 of the 2003 Act substituted a new Part I to Schedule 1 of the 1974 Act. This omitted all reference to those who were ineligible for jury service who fell within Groups A, B and C. Mentally disordered persons are, however, now not qualified to attend for jury service in consequence of an amendment to s.1 the 1974 Act. Part II of the new Schedule still disqualifies those who have received custodial sentences and in addition those on bail in criminal proceedings.
11.
The parliamentary intention behind the legislative changes as to eligibility and liability to attend for jury service is clear. It is to widen significantly the range of those who are eligible and liable for jury service. This intention is supported by the limitations which are placed on the discretion of the appropriate officer to defer jury service. These are now contained in s.9A (2) of the 1974 Act and apply in particular where a deferral of the attendance of the person summoned has previously been made or refused under sub-section (1) or sub-section (1A) of the 1974 Act.
The Appellants’ General Submissions
12.
Mr Richard Carey-Hughes QC. on behalf of the appellants, contends that it is axiomatic that a trial must be fair and be seen to be fair and for this to be the situation, the tribunal conducting the trial must be free from actual or apparent bias. Furthermore, he relies upon Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) which provides;
“In the determination of…any criminal charges against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
13.
Mr Carey-Hughes relies on s.6 (1) and (3) of the Human Rights Act 1998. Those provisions of the Act provide:
“(1)
It is unlawful for a public authority to act in a way
which is incompatible with a Convention right.
(3)
In this section ‘public authority’ includes –
a)
‘A court or tribunal, and…’”
14.
These provisions have, however, to be read subject to s.6 (2) which provides:
“Sub-section (1) does not apply to an act if-
a)
as the result of one or more provisions of primary legislation, the authority could not have acted differently or
b)
in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way in which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.”
15.
There is no doubt as to the obligation for a trial to not only be fair but appear to be fair and the need for an independent tribunal to conduct the trials. In addition, the test which is now to be applied is clearly established as being whether the fair minded and informed observer having considered the facts would conclude that there is a real possibility that the tribunal was biased. (See
R v Gough
[1993] AC 646,
Re Medicaments and Related Classes of Goods No. 2
[2001] 1WLR 700
at p 727 and finally, the speech of Lord Hope of Craighead in
Porter v Magill, Magill v Weeks
[2002] 2 AC 357
(at para 103 on p 494)).
16.
Reliance is also placed upon
Pullar v United Kingdom
(1996) 22 EHRR 391
, in which it was observed that in situations in which juries do not give reasons for their verdicts and where there is a prohibition on investigating what transpired in the jury room “additional emphasis should be placed in the existence of objective guarantees [of impartiality]”. Mr Carey-Hughes’ concern was not with individuals being “closely connected” with the legal system but with their being “closely connected” with the prosecution. Here, he prays in aid the decision of the House of Lords in
Lawal (Appellant) v Northern Spirited Ltd
[2003] UK HL 35. In that case, the Appellate Committee of the House of Lords considered the position of a Queen’s Counsel appearing on an appeal before the Employment Appeal Tribunal (“EAT”), who had sat as a part-time judge in the EAT with one or both of the lay members hearing that appeal. In giving its considered opinion, the Committee made it clear that “there is now no difference between the common law test of bias and the requirements under Article 6 of the Convention of an independent and impartial tribunal” (para 14). The Committee added that the “public perception of the possibility of unconscious bias is the key” (para 14). The Committee concluded that the practice in the EAT of part-time judges appearing as counsel before a panel of the EAT consisting of one or two lay members with whom they had previously sat should be discontinued. The basis for the Committee’s conclusion was that a legally qualified judge when sitting judicially is likely to have particular influence upon lay members because of the role of the EAT, which is to determine questions of law.
17.
This is an area where there has been no shortage of reports and reviews. In relation to the position as it existed before the 1974 Act we were referred to the report of the Departmental Committee on jury service (the Morris Report) Cmnd 2627 (HMSO 1965), and the report of the Royal Commission on Criminal Justice 1993 (the Runciman Commission). In addition we have considered the Review by Lord Justice Auld of the Criminal Courts and the response of the Criminal Bar Association to that Review. The Auld Review was almost certainly the catalyst for the change in the law. Lord Justice Auld deals with ineligibility in his Review at para. 27 of chapter 5. The whole of his remarks on the subject is highly relevant but we draw particular attention to paras 30 and 31 of chapter 5 which are in these terms:
30.
“There is also the anxiety voiced by some that those closely connected with the criminal justice system, for example, a policeman or a prosecutor, would not approach the case with the same openness of mind as someone unconnected with the legal system. I do not know why the undoubted risk of prejudice of that sort should be any greater than in the case of many others who are not excluded from juries and who are trusted to put aside any prejudices they may have. Take, for example shopkeepers or house-owners who may have been burgled, or car owners whose cars may have been vandalised, many government and other employees concerned in one way or another with public welfare and people with strong views on various controversial issues, such as legalisation of drugs or euthanasia. I acknowledge that there may be Article 6 considerations in this. But it would be for the judge in each case to satisfy himself that the potential juror in question was not likely to engender any reasonable suspicion or apprehension of bias so as to distinguish him from other members of the public who would normally be expected to have an interest in upholding the law. Provided that the judge was so satisfied, the over-all fairness of the tribunal and of the trial should not be at risk.”
31.
“As I have said, I consider that there is a strong case for removal of all the categories of ineligibility based on occupation. My one reservation has been as to judges. I say that, not because I consider that they are too grand for the task or that their work is so important that they could not be spared for it. On the contrary, I consider that it would be good for them and the system of jury trial if they could experience at first hand what jurors have to put up with. In particular, it would surely help them see how well or badly they and all those concerned in the process assist jurors in their task. And I have been heartened by the knowledge that judges have sat on juries or been potential jurors in the USA. A number have spoken warmly of the experience. They include Judith S Kaye, the Chief Judge of the State of New York, Shirley Abrahamson, Chief Justice of the Wisconsin Supreme Court and Justice Breyer, of the Supreme Court of the USA who gave an account at the American Bar Association Meeting in London in July 2000 of his jury service.”
The Case for the Crown
18.
In his submission on behalf of the Crown, not surprisingly, Mr Heywood relied on the clear language of the amendments made by the 2003 Act. He submits that these were changes made by the democratically elected legislature for the legitimate purpose of maximising the pool of responsible and professional people available to perform the important civic function of serving on a jury. He submits that a fair trial is best achieved by random selection, provided that safeguards exist to guarantee objective impartiality. It is his contention that there is no objection in principle to either a police officer or a crown prosecution service employee serving on a jury in a criminal trial. Furthermore, there is no actual partiality established in the case of any of the three jurors, who are the subject of these appeals. Their impartiality should therefore be assumed.
19.
Mr Heywood also points to the power of the Lord Chancellor to issue guidance as to the manner in which the functions of the appropriate officer (summoning officer) under s.9 and 9A of the 1974 Act as amended are to be exercised. Mr Heywood relies in particular on para 4 and para 18 of the guidance which was issued. The guidance is in these terms:
“4.
The normal expectation is that everyone summoned for jury service will serve at the time for which they are summoned. It is recognised that there will be occasions where it is not reasonable for a person summoned to serve at the time for which they are summoned, in such circumstances, the summoning officer should use his or her discretion to defer the individual to a time more appropriate. Only in extreme circumstances, should a person be excused from jury service.
The summoning officer exercising his discretion should
observe the following principles…
18.
Members of the judiciary or those involved in the administration of justice who apply for excusal or deferral on grounds that they may be known to a party or parties involved in the trial should normally be deferred or moved to an alternative court where the excusal grounds may not exist. If this is not possible, then they should be excused. Paragraph 4 (above) applies”
20.
Mr Heywood relies on s.12 of the 1974 Act. S.12 (1) gives the judge the right to determine any challenge for cause of a juror. He also refers to the residual discretion of the judge at common law which was explained by Lord Lane CJ in
R v Ford
(1989) 89 Cr App Rep 278 at 280:
“At common law the Judge has a residual discretion to discharge a particular juror who ought not to be serving on the jury. This is part of the judge’s duty to ensure that there is a fair trial. It is based on the duty of the judge expressed by Lord Campbell C.J., in
Mansell
(8857) 8 E. & B. 54.”
21.
As Mr Heywood points out, the common law power to challenge is clearly restricted. However, it is to be remembered that Lord Lane’s judgment was given in a case decided before the Human Rights Act 1998 came into force.
22.
Having referred to ss.3 and 6 of the Human Rights Act 1998 and Article 6 of the ECHR, Mr Heywood contends that the case law of the ECtHR does not provide grounds for the conclusion that in the absence of evidence of subjective partiality and an established connection between a juror and a party an involvement in the administration of justice will, of itself, give rise to a finding of objective impartiality, still less that the holding of an office or occupation connected to the administration of justice will do so. In this connection, he refers to
Crummock (Scotland) Ltd v HM Advocate
The Times 9 May 2000 and
Pullar v United Kingdom
(1996) 22 EHRR 391
. He also refers to Lord Rodger of Earlsferry’s speech in
R v Mirza
[2004] 1 AC 1118
at p.1174 para 152 where he said:
“The risk that those chosen as jurors may be prejudiced in various ways is, and always has been, inherent in trial by jury. Indeed, only the most foolish would deny that judges too may be prejudiced, whether, for example, in favour of a pretty woman or a handsome man, or against one whose dress, general demeanour or lifestyle offends. The legal system does not ignore these risks: indeed it constantly guards against them. It works, however, on the basis that, in general, the training of professional judges and the judicial oath that they take mean that they can and do set their prejudices on one side when judging a case. Similarly, the law supposes that, when called upon to exercise judgment in the special circumstances of a trial, in general, jurors can and do set their prejudices aside and act impartially. The recognised starting-point is, therefore, that all the individual members of a jury are presumed to be impartial until there is proof to the contrary.”
23.
The safeguards that Mr Heywood relies on also include:
a)
The random selection process to which we have already referred;
b)
The guidance given to prospective jurors from a number of sources making clear the juror’s responsibility to draw to the attention of a judge where, during a trial, a juror recognises the defendant or witness or the judge, an advocate or solicitor.
In addition Mr Heywood refers to the guidance contained in a video recording shown to jurors on the first day of their service and the guidance which was issued by the Metropolitan Police’s Assistant Commissioner on 10 May 2004, the effect of which is that, where possible, police officers should not “attend a court where their operational command unit is situated”.
Our General Conclusions
24.
No complaint can be made as to the manner of selecting the members of the jury thought to be eligible based on the literal meaning of the legislation. The panel was selected to be summoned randomly by a computer system installed at the Jury Central Summoning Bureau. This was about the most random method of selection that could be devised. The original summoning is then followed by ballot from among those summoned to attend the court.
25.
We emphasise that it is necessary to draw a distinction between the eligibility of a person to serve on a jury and the issue of whether a particular eligible person should be prevented from sitting on a particular jury at a particular place. As to eligibility, we reject a suggestion that police officers, members of the prosecution service or other persons involved in the administration of justice, including judges, should, because this is their occupation, be automatically regarded as being disqualified from a jury. Our initial view that their service on the jury could be undesirable is conditioned by the fact that traditionally, the holders of these occupations have not been eligible for jury service. But approaching the question of their eligibility from first principle, there appear to be few reasons why, in general, they should be excluded from the obligation of the public generally to shoulder the important responsibility of sitting on a jury.
26.
The first reason for exclusion is that the juror’s involvement in the justice system means the juror would know more about the workings of the court systems than would a normal citizen. In particular, they might be in a position to draw inferences that other members of the jury who did not share the same occupation would not be able to draw. For example, they might be able to infer that a defendant had previous convictions when a less well informed member of the jury would not be able to draw that inference. The other reason is that, because of their occupation, they may be able to play an unduly dominant role in the jury’s deliberations. The third reason is that, because of their close connection with the criminal justice system, they might not approach the case with the same open-mindedness of someone unconnected with the legal system.
27.
As to these reasons, we share the same view as Lord Justice Auld in his report. They do not in themselves justify concluding that individuals should be disqualified from being among the members of the jury by reason of their occupation alone. The starting point for our conclusion is that, when they become members of the jury, they are not becoming members of the jury in their capacity as policeman or a prosecuting solicitor. Having been randomly selected, they serve on the jury in the same way as any other member of the public in their capacity as a citizen eligible for jury service. They then take the jury oath which makes it clear that it is their solemn duty to determine the case on the evidence. Furthermore, like other juries, they will hear the judge direct them clearly as to what is their role and that they must decide the case only on the evidence. If they have no personal knowledge of the defendant or others involved in the trial process, above that of their fellow jurors, they can be expected to comply with the terms of their oath and the directions which the judge will give them. They will have to disregard matters which are irrelevant, but that is the requirement for any juror.
28.
Their special knowledge of the criminal justice system could mean that they could draw inferences, but the guidance which they receive both before they become members of the jury and after they have become members of the jury should avoid their using their knowledge of the system in a way which is unfair to the defendant.
29.
We, of course, accept the danger of a juror being unconsciously prejudiced. However, with any juror, there is a danger of having prejudices. The variety of prejudices that jurors can have are almost unlimited
30.
The fact that there are 12 members of the jury of which at least 10 must be agreed is a real protection against the prejudices of an individual juror resulting in unfairness to a defendant. In addition, it is to be hoped and expected, that those who are employed in the administration of justice will be particularly careful not to act in a manner which is inconsistent with their duty as members of the jury and in particular, to exercise the independence of mind which is required of all jurors and to be on their guard to reach their verdict only on the evidence in accordance with the directions from the trial judge. It is our view that a fair minded and informed observer would not conclude that there was a real possibility that a juror was biased merely because his occupation was one which meant that he was involved in some capacity or other in the administration of justice.
31.
As to an individual because of his occupation unduly dominating a jury, again our view is the same as that of Lord Justice Auld for the reasons he gives. We do not believe that today, a juror would or might have an unacceptable influence on his fellow jurors because of his occupation. In some cases were the jury to become aware of the occupation of a juror as a policeman or some other occupation involved in the administration of justice, it could reduce rather than increase his influence on his fellow jurors. It is to be remembered that a trial judge usually appreciates that there is at least a risk that the jury might draw an inference as to the judge’s view on the innocence or guilt of the accused and for that reason, he warns the jury that if they draw any such inference, they should put it out of their mind if they disagree with it because their decision on the facts is the critical decision.
32.
Of course, there will always be risks that any juror will depart from his or her solemn duty, but the system cannot work on the basis that this risk can be excluded. Justice systems can only strive for perfect fairness but it would be foolish not to recognise there will be occasions when it is actually not achieved. Despite this shortcoming, which is inherent in any system dependent upon individuals’ decision, in this jurisdiction, the view of the public generally is that normally, the jury trial is the fairest form of trial available. We have great faith in the ability of 12 persons randomly selected, and properly directed, to provide justice in the generality of cases.
33.
The position is, however, different if the juror has a special knowledge either of individuals involved in the case or as to the facts of the case apart from that provided by the evidence. If this is the situation, it is now clearly recognised that the juror must draw the matter to the attention of the judge. Here, we commend the fact that the recorded video shown to jurors immediately before their service commences contains under the sub-title “The Trial”, the following words:
“Once the jury has been selected the court clerk will read out the charges made against the defendant. If you realise that you know anyone or have any other connection with the trial on which you are serving, please tell the usher immediately.”
This is followed by the presenter stating:
“It is vital that your opinion is based purely on what you see and hear both within the courtroom and you are not influenced by any outside factors. Please don’t discuss any details of the trial with anyone other than your fellow jurors, not even members of your family and please don’t remove any items of evidence or notes from the courtroom. It is very important that if anyone approaches you about the trial or tries to influence you in any way, you do not discuss it with any member of your jury and tell the jury officer or usher immediately.”
34.
This recording was introduced in June 2005 and would not have been used at the time of the trials which are the subject of these appeals. The earlier form of video which would have been in use at the time of the trial was not significantly different. In particular, it concluded by saying “Remember, if you know anyone involved in the case, tell a court official immediately”.
35.
It is our view that the general advice provided to jurors should be adequate to draw to their attention the need to alert the court if they have any special knowledge. Further guidance is, however, desirable and has been provided for those involved in the administration of justice to avoid them being summoned to appear at courts where the likelihood of their being well known to those conducted with the trial is undesirably high.
36.
It is obviously good sense to try and avoid situations where the suitability of a juror to sit on a particular trial will be likely to be questioned. If despite this a situation does arise where a juror knows those taking part in the proceedings, then the judge in the normal way should exercise the discretion he has to decide whether that juror should become or remain part of the jury.
37.
If an issue arises as to whether, despite the precautions that are taken, a member of the jury has knowledge which makes him or her unsuitable to sit on that jury, the usual test as indicated by Lord Hope in the
Porter
case has to be applied in all the circumstances to determine whether the requirements of fairness have been met or not. In making that determination, there is no need to distinguish between the position under Article 6 and the position at common law. In our understanding, the approach is now the same in both, at least in the great majority of cases.
38.
We turn now first to the case of Abdroikov and then to the appeals of Green and Williamson.
Nurlon Abdroikov
39.
The indictment against the appellant Nurlon Abdroikov charged him with offences against two separate victims. Counts 1 to 4 related to an incident on 14 April 2002 when a man called Nicholas Faulkner met him and invited him back home. The appellant attacked Mr Faulkner in the bedroom and tied him up on the bed. Mr Faulkner fell to the floor while attempting to escape. The appellant then pushed a duvet into his face and smothered him, at the same saying "I am going to kill you". Mr Faulkner lost consciousness. When he woke up, the appellant punched him about the head and body, repeating the threat "I am going to kill you". He took Mr Faulkner's belt and used this to strangle him, while asking him to hand over his credit cards and threatening to kill him. He stood on Mr Faulkner's shoulders to tighten the belt. Mr Faulkner lost consciousness again. Upon regaining consciousness he discovered that personal property from his flat had been stolen. The attack on Mr Faulkner was charged as attempted murder (count 1), with alternative counts of attempting to choke (count 2) and making a threat to kill (count 3). There was a separate count of theft in relation to the personal property (count 4).
40.
Counts 5 to 7 related to an incident on 31 August 2002 when a woman called Samantha Pettit was walking home at about 5 a.m. The appellant grabbed her from behind, took hold of her neck and punched her about the face, while threatening her by saying "I will kill you, I want to rape you". He dragged her into the next road. Although still forcibly holding her, he then entered into a conversation with her and offered her a cigarette. He said that if she allowed him to have sex with her he would let her go. When she refused, he continued to talk to her. She attempted to escape but was punched again around the neck. A passer-by then walked up to them and the appellant left the scene. The attack on Mrs Pettit was charged as an offence contrary to section 21 of the Offences Against the Person Act 1861, namely an attempt to choke, suffocate or strangle with intent to enable an indecent assault (count 5), with alternative counts of indecent assault (count 6) and making a threat to kill (count 7).
41.
The proceedings took a somewhat complex course. First, in February 2003, the appellant pleaded guilty to the count of theft (count 4). Then, in February 2004, he pleaded guilty to making a threat to kill Mr Faulkner (count 3) and attempted choking of Mrs Pettit (count 5). The Crown decided to accept those pleas and not to pursue the other matters to trial. When the appellant was seen by a probation officer for the purpose of preparing a pre-sentence report, however, the account he gave to her made it clear that his pleas to counts 3 and 5 were equivocal. He was subsequently allowed to change those pleas and the case was listed for trial. It was ordered that counts 1 to 3 be tried first.
42.
Following a trial at the Central Criminal Court before the Common Serjeant of London (His Honour Judge Beaumont) and a jury, on 31 August 2004 the appellant was convicted on count 1. Verdicts of not guilty were returned on the alternative counts 2 and 3. The appellant then entered a plea of guilty to count 5, making a further trial unnecessary. Counts 6 and 7 were ordered to lie on the file.
43.
On 19 November 2004 the appellant was sentenced to a term of 11 years' imprisonment on count 1 and a consecutive term of 5 years' imprisonment on count 5, making a total term of 16 years. No separate penalty was imposed on count 4. He was also recommended for deportation.
44.
The matter came before this court by way of a renewed application for leave to appeal against conviction, following refusal of leave by the single judge, and an appeal against sentence by leave of the single judge. At the hearing we granted leave to appeal against conviction on the one ground that the presence of a serving police officer on the jury deprived the appellant of a fair trial. We refused leave on the remaining grounds.
45.
The fact that there was a police officer on the jury came to light because, while the jury were in retirement and immediately before they were sent home over a bank holiday weekend, the foreman sent the judge a note in which he explained that he was a serving police officer and was due to report for duty on the bank holiday Monday, during the course of which he might come into contact with officers in the case. He sought guidance. The judge directed him not to report for duty on that day. The matter was drawn to the attention of counsel at the time and no objection was raised concerning the police officer’s presence on the jury.
46.
In contending before us that the presence of the police officer on the jury made the trial unfair, Mr Carey-Hughes relied on the general arguments that we have already considered. He accepted that the officer concerned had behaved responsibly in sending the note he did to the judge. He also accepted that the case did not involve any major issue between the appellant and the police. He drew our attention, however, to one matter of dispute. The appellant admitted having tied up Mr Faulkner by the hands, but denied having also tied him by the feet. A woman police officer gave evidence that she had seen indentations around Mr Faulkner's lower legs as if he had been bound there. The defence case was that those markings were not visible in the photographs and the officer had exaggerated her account.
47.
In our judgment there was nothing in the particular circumstances of the case to give rise to any cause for concern with regard to the presence of a police officer on the jury. The case falls squarely within the general issues of principle discussed above. Accordingly, our conclusion that the presence of a police officer on a jury does not in itself offend the principles of fairness leads us to dismiss Mr Abdroikof's appeal against conviction.
48.
We should also mention briefly the grounds of appeal in respect of which we refused the renewed application for leave.
49.
First, the probation officer who saw the appellant for the purpose of preparing a pre-sentence report following the original (subsequently vacated) pleas of guilty was called as a prosecution witness at trial to give evidence that the appellant had given her an account that was inconsistent with his case at trial. There was no dispute about the admissibility of her evidence. But as a result of her cross-examination and of evidence then given by the appellant, the jury came to learn of the appellant’s previous pleas of guilty. The appellant himself told the jury that he had pleaded guilty to making threats to kill Mr Faulkner, seeking to explain it away as part of a “deal” with the prosecution whereby the more serious allegations in counts 1 and 2 were not proceeded with.
50.
The judge ruled that it would be unfair to Mr Faulkner to leave matters as they were, owing to the risk that the jury might think that in agreeing to a deal at the time of the appellant’s original pleas the prosecution had been making a judgment about the credibility of Mr Faulkner. The judge dealt with this by explaining to the jury, both at the time when the matter arose and in his summing up, that in February 2004 the appellant had been facing two sets of charges, one in relation to Mr Faulkner and one in relation to another person; he had pleaded guilty to one charge in relation to each; the prosecution had to decide whether it was in the public interest in those circumstances to proceed with jury trials; it had then become clear in the probation officer’s interview of the appellant that he was saying to her that he was not guilty of either offence; and the judge had therefore allowed the pleas to be withdrawn, so that the charges in relation to Mr Faulkner were now before this jury and the charges in relation to the other person would have to be considered by another jury at another time. The judge emphasised to the jury that they should regard the appellant as innocent of those other charges and should not speculate about them.
51.
Mr Carey-Hughes submitted that the way in which the judge dealt with the matter was unfair and prejudicial to the appellant and rendered his conviction on count 1 unsafe. The jury should not have been told that the prosecution had decided on the earlier occasion not to proceed with counts 1 and 2 only because the appellant had pleaded guilty to something else. The jury should either have been directed to ignore the evidence about the deal or should have been discharged.
52.
We reject those submissions. We are satisfied that the situation that arose, unfortunate and difficult though it was, did not call for the discharge of the jury. In dealing with it by the directions he gave the jury, the judge struck a fair balance between the interests of the prosecution and the interests of the defence. He ensured that the jury were not misled, but equally ensured that they did not speculate about the other charges or hold them against the appellant.
53.
The other ground of appeal against conviction was that the judge was wrong to reject a submission of no case to answer on count 1. It was submitted that there was no evidence upon which the jury could find an intention to kill, as opposed to an intention to frighten the victim. We disagree. In our judgment there was plainly sufficient evidence for the issue to be left to the jury.
54.
That brings us to the appeal against sentence. Although points were made about the individual components of the sentence, the main thrust of the submissions on the appellant’s behalf was that an overall term of 16 years’ imprisonment did not properly reflect the principle of totality.
55.
On that one issue we find ourselves in agreement with the case advanced for the appellant. This was not an easy matter for the judge, given the seriousness of each of the separate offences for which the appellant fell to be sentenced. If either sentence had stood alone, we do not think that there would be any basis for interfering with it. We have reached the conclusion, however, that an overall term of 16 years for the two offences together was somewhat too long. In our judgment an appropriate overall term would have been 14 years. In order to produce that outcome, we allow the appeal against sentence to the extent of substituting a sentence of 9 years’ imprisonment for the sentence of 11 years on count 1, leaving in place the consecutive sentence of 5 years’ imprisonment on count 5.
Richard John Green
56.
Richard Green was convicted on two Counts at the Woolwich Crown Court on the 5
th
of October 2004. He was sentenced to concurrent sentences of 7 weeks’ imprisonment for offences of Assault Occasioning Actual Bodily Harm and Having a Bladed or Pointed Article. We granted leave to appeal at the outset of the hearing. The appeal raises the same point as that in Abdroikov, namely whether the presence of a police officer on the Jury made the trial fair.
57.
The two counts arose from the same incident, which took place on the 18
th
of March 2004. Richard Green was seen in a public area by two police officers one of whom was Police Sergeant Burgess who suspected that Mr Green might be intending to steal a wheel from a wrecked car. He informed Mr Green that he was to be searched for articles for use in committing theft.
58.
Police Sergeant Burgess then asked Mr Green if he had anything he should not have on his person. Mr Green handed over a plastic bag full of sterilized needles. Police Sergeant Burgess again asked if Mr Green had anything ‘he should know about’ to which Mr Green replied ‘no’. When Police Sergeant Burgess went to put his hand into one of Mr Green’s pockets the Sergeant pricked himself on a needle causing him to bleed.
59.
Mr Green’s defence to having a pointed article was that he did so ‘for good reason’. He was a drug addict and had obtained all the needles, including the one in his pocket, for a project run by an NHS Trust. He had used the needle in his pocket to inject himself with heroin – something he would normally do in private as he had felt ill.
60.
As regards the assault occasioning actual bodily harm, Mr Green’s case was that he had completely forgotten the needle was in his pocket. When he had been asked by the Sergeant whether there was anything further he had on him that the Sergeant should know about he had replied ‘No’. Sergeant Burgess then immediately went towards Mr Green to search him denying Mr Green the opportunity to search himself as he would have done, which would have obviated the danger of Sergeant Burgess pricking himself.
61.
There was thus a factual issue to be determined as between the Police Sergeant and the appellant Richard Green. Unbeknown to the appellant and his legal advisors there was serving upon the jury a Police Officer, one Police Constable Mason. This fact only came to the notice of the appellant’s solicitors several weeks after the conviction when by accident his solicitor learned of the fact whilst visiting a Police Station.
62.
The sole ground of appeal was that the convictions were unsafe by reason of the fact that a police officer was serving on the jury, that he was a serving police officer in the same Borough as Sergeant Burgess and that there was a real danger of bias. Mr Carey-Hughes submitted that there was a significant issue between Mr Green and Sergeant Burgess crucial to the element of recklessness and foresight, which lay at the heart of the appellant’s case. The crux of the case as it impacted upon the subjective element of recklessness was whether Mr Green was aware that he had the needle in his pocket. Evidence was received from the officer as to what Mr Green said, which was contradicted by Mr Green’s own account. The credibility of Sergeant Burgess was therefore of the utmost importance, as was the credibility of Mr Green. Mr Heywood for his part, whilst acknowledging the existence of such an issue, chose to describe it as a narrow issue.
63.
The following are agreed facts:
(i)
Sergeant Burgess served at Thamesmead Police Station in the Royal Borough of Greenwich from February 2000 until his transfer to the Borough of Sutton in April 2004. PC Mason completed his initial training at Hendon in 2003. He was transferred to the Royal Borough of Greenwich and undertook his Street Duties Course, which entailed his spending some time at each of the Police Stations in the Borough. In June 2003, after completing his course, PC Mason was posted to Eltham Police Station and has worked there since.
(ii)
We have read a statement from Sergeant Burgess indicating that he did not recognise any juror as being a police officer and a further statement indicating that he did not know a police officer by the name of James Mason and had never met anyone by that name in the police service.
64.
In contending before us that the presence of the police officer on the jury made the trial unfair, Mr Carey-Hughes stressed the issue between the appellant and Sergeant Burgess and pointed to the fact that both PC Mason and Sergeant Burgess had served in the same Borough at the same time. He submitted that a fair minded and informed observer would conclude that there was a real possibility or real danger that the jury were or would be biased.
65.
Mr Heywood was not able to tell us how it came about that PC Mason served in a jury hearing such a case having regard to the written guidance issued to the Metropolitan Police Service by the Assistant Commissioner (Human Resources) indicating that ‘where possible, police officers should not attend the Court where their Operational Command Unit commits its work’. However Mr Heywood invited us to conclude that since neither had met or knew one another there was no evidence whatsoever of any personal partiality and thus the impartiality of PC Mason was therefore to be presumed. There was no evidence that the juror ignored instructions or improperly failed to alert the Court to any relevant matter. The jury was directed to decide the case only according to the evidence they had heard, to put aside sympathies and to treat the Defendant’s evidence in no different way. Mr Heywood submitted there was no sufficient basis upon which to conclude that the applicant’s fears as to impartiality were objectively justified.
66.
In our judgment there was nothing in the particular circumstances of this case to give any continuing cause for concern with regard to the presence of PC Mason on the jury. Having satisfied ourselves that the two police officers were not known to one another, we fall back on the conclusion discussed above, namely that the presence of a police officer on a jury does not in itself offend the principles of fairness and thus we dismiss Mr Green’s appeal against conviction.
Kenneth Joseph Williamson
67.
The facts can be stated quite briefly. We granted leave to appeal against conviction. On the 3
rd
of February 2005 in the Crown Court of Warrington the appellant was convicted of 2 counts of Rape and sentenced to 10 years’ detention in a Young Offender Institution.
68.
The allegation was that the appellant, having obtained a key to the complainant’s home, lay in wait and entered her home late at night shortly after the complainant had returned. He entered her bedroom, threatened her with a knife and raped her vaginally and anally. When interviewed the appellant denied having intercourse with the complainant and denied going to the house that night. Subsequently a full DNA profile obtained from semen from the complainant’s underwear matched the appellant’s. At trial he admitted lying in interview, saying it was attributable to shock at being arrested, and alleged consent.
69.
Summonsed for Jury Service was a solicitor serving in the Crown Prosecution Service by the name of Martin McKay-Smith. He wrote a letter addressed to HH the Judge sitting at Warrington Crown Court. It reads:
“Your Honour,
I have been summonsed as a member of the jury to serve at Warrington from 31st January. I am eligible to do so following the changes brought about by the Criminal Justice Act 2003.
I work for the Crown Prosecution Service and have done so since its inception in 1986. Prior to that I worked for the Greater Manchester Council as a prosecuting solicitor, having been in private practice as a solicitor for five years in Nottingham and Chester before that.
I am a Higher Court Advocate and have practised as such in many local courts including this one since 1998, on behalf of the Crown. I have not however conducted a trial in the Crown Court, despite preparation for two, which were not able to proceed.
At present I work for the arm of the service, which advises police on charging out of office hours. On 30
th
of January I was so engaged and will be doing so again from 1700 on the 31
st
January.
As a matter of policy, the CPS has asked those summoned to ensure the Judge has all the necessary information to hand in order to exercise discretion as to the feasibility of the individual serving.
Hence this letter, which can be amplified if your Honour requires it.
Yours faithfully
Martin McKay-Smith, Solicitor, Crown Prosecution Service”
70.
When Mr McKay-Smith was called to sit on the jury the trial Judge handed the letter to Defence Counsel who took instructions from his lay client and thereafter upon instructions he sought to challenge the juror for cause asserting that there would be some presumed or actual partiality in the juror by reason of his employment. The challenge was rejected by the learned Judge on the basis that there was nothing to prevent the juror from sitting by law. He did not know any particular member of the CPS connected with the case. If this juror was not allowed to sit then no member of the CPS could sit on any jury and that was not what Parliament had clearly intended. Apart from Mr McKay-Smith’s sitting on the jury no other complaint is made.
71.
Mr Carey-Hughes submitted that in the case of a prosecution brought by the Crown Prosecution Service the presence on a jury of a person employed by the Service itself evidently causes the case to fail the test in relation to bias.
72.
Mr Heywood submitted that there was no basis at all for a claim of personal partiality (as was conceded). The issue in the case was a stark dispute of fact between complainant and defendant. The juror properly raised the matter according to the issued guidance thereby permitting the Defendant to make submissions and the trial judge to rule on all of the facts then known.
73.
In the circumstances there was no basis upon which to allege objective impartiality and no basis upon which to contend that fears as to impartiality could be objectively justified. Having concluded that the presence of a CPS employee on a jury does not itself offend the principle of fairness we dismiss Mr Williamson’s appeal against conviction. | {"ConvCourtName": ["Woolwich Crown Court", "Crown Court of Warrington", "Central Criminal Court"], "ConvictPleaDate": ["5th of October 2004", "31 August 2004", "3rd of February 2005"], "ConvictOffence": ["indecent assault", "Rape", "attempt to choke, suffocate or strangle with intent to enable an indecent assault", "theft", "Assault Occasioning Actual Bodily Harm", "attempting to choke", "attempted murder", "making a threat to kill", "Having a Bladed or Pointed Article"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Woolwich Crown Court", "Crown Court of Warrington", "Central Criminal Court"], "Sentence": ["10 years’ detention in a Young Offender Institution", "7 weeks’ imprisonment", "11 years' imprisonment on count 1 and a consecutive term of 5 years' imprisonment on count 5, making a total term of 16 years"], "SentServe": ["concurrent", "consecutive"], "WhatAncillary": ["data not available"], "OffSex": ["him"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["met him and invited him back home"], "VictimType": ["man called Nicholas"], "VicNum": ["two separate victims", "the complainant’s"], "VicSex": ["man", "woman"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["property from his flat"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["woman police officer gave evidence that she had seen"], "DefEvidTypeTrial": ["defence to having a pointed article was that he did so ‘for good reason’"], "PreSentReport": ["data not available"], "AggFactSent": ["belt and used this to strangle"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["convictions", "sentence"], "AppealGround": ["the presence on a jury of a person employed by the Service itself evidently causes the case to fail the test in relation to bias", "the judge was wrong to reject a submission of no case to answer on count 1", "16 years’ imprisonment did not properly reflect the principle of totality", "whether the presence of a police officer on the Jury made the trial fair.", "convictions were unsafe by reason of the fact that a police officer was serving on the jury", "ground that the presence of a serving police officer on the jury deprived the appellant of a fair trial"], "SentGuideWhich": ["s.1 of the Juries Act 1974", "principle of totality", "Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms", "section 21 of the Offences Against the Person Act 1861", "Criminal Justice Act 2003"], "AppealOutcome": ["dismiss Mr Abdroikof's appeal against conviction", "we dismiss Mr Williamson’s appeal against conviction", "we allow the appeal against sentence to the extent of substituting a sentence of 9 years’ imprisonment for the sentence of 11 years on count 1, leaving in place the consecutive sentence of 5 years’ imprisonment on count 5", "dismiss Mr Green’s appeal against conviction"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["an overall term of 16 years for the two offences together was somewhat too long"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["In our judgment there was plainly sufficient evidence for the issue to be left to the jury.", "the presence of a CPS employee on a jury does not itself offend the principle of fairness", "the presence of a police officer on a jury does not in itself offend the principles of fairness and thus we dismiss"]} | {"ConvCourtName": ["Crown Court Of Warrington", "Woolwich Crown Court", "Central Criminal Court"], "ConvictPleaDate": ["2005-02-03", "2004-08-31", "2004-10-05"], "ConvictOffence": ["Rape", "Having a Bladed or Pointed Article", "Assault Occasioning Actual Bodily Harm", "indecent assault", "attempt to choke, suffocate or strangle with intent to enable an indecent assault", "theft", "making a threat to kill", "attempting to choke", "attempted murder"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court Of Warrington", "Woolwich Crown Court", "Central Criminal Court"], "Sentence": ["Williamson", "Green", "Abdroikov"], "SentServe": ["Combination", "Consecutive"], "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", "2"], "VicSex": ["Mixed"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Eye-witness testimony"], "DefEvidTypeTrial": ["Offender believes actions justified"], "PreSentReport": ["Don't know"], "AggFactSent": ["Weapon /armed"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["sentence", "convictions"], "AppealGround": ["the presence on a jury of a person employed by the Service itself evidently causes the case to fail the test in relation to bias", "convictions were unsafe by reason of the fact that a police officer was serving on the jury", "whether the presence of a police officer on the Jury made the trial fair.", "16 years’ imprisonment did not properly reflect the principle of totality", "the judge was wrong to reject a submission of no case to answer on count 1", "ground that the presence of a serving police officer on the jury deprived the appellant of a fair trial"], "SentGuideWhich": ["section 21 of the Offences Against the Person Act 1861", "principle of totality", "Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms", "s.1 of the Juries Act 1974", "Criminal Justice Act 2003"], "AppealOutcome": ["Dismissed-Failed-Refused", "Dismissed-Failed-Refused", "we allow the appeal against sentence to the extent of substituting a sentence of 9 years’ imprisonment for the sentence of 11 years on count 1, leaving in place the consecutive sentence of 5 years’ imprisonment on count 5", "Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["an overall term of 16 years for the two offences together was somewhat too long"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["the presence of a CPS employee on a jury does not itself offend the principle of fairness", "the presence of a police officer on a jury does not in itself offend the principles of fairness and thus we dismiss", "In our judgment there was plainly sufficient evidence for the issue to be left to the jury."]} | 481 |
Neutral Citation Number:
[2015] EWCA Crim 1501
Case No.
:
2015/2250/A8
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 6 August 2015
B e f o r e
:
THE VICE PRESIDENT
LADY JUSTICE HALLETT DBE
MR JUSTICE JEREMY BAKER
MR JUSTICE GOSS
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R E G I N A
V
G.B.
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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)
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Mr C Falk
appeared on behalf of the
Appellant
The
Crown
did not appear and was not represented
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J U D G M E N T
1.
MR JUSTICE GOSS: On 15th May 2015 in the Crown Court at Wood Green, following earlier pleas of guilty entered on 13th April 2015, the appellant was sentenced to 15 months' imprisonment for one offence of incest, contrary to section 10(1) of the Sexual Offences Act 1956 and to concurrent sentences of eight months' imprisonment for two offences of indecent assault, contrary to section 14(1) of the same Act. He now appeals with the permission of the single judge against those sentences.
2.
Having been convicted of an offence listed in Schedule 3 to the Sexual Offences Act 2003, the appellant was required to comply with the notification provisions of Part 2 of that Act for the appropriate period and as a result of his conviction of an offence specified in the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 he will also be included in the relevant list by the Independent Safeguarding Authority.
3.
The anonymity provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. No matter likely to lead to the victim's identity shall be published during her lifetime and this judgment should be anonymised accordingly.
4.
The appellant is now 68 years of age. The complainant, MB, is his sister. She is 15 months younger than him. As children, they lived with their parents and two younger siblings in a two room apartment, all six of the family sleeping in the same bedroom. The family was uneducated and of limited means. It is common ground that the children would witness their parents having sex.
5.
When the appellant was 14, and she was 13, he started sexually abusing his sister. He would lift her bedsheets and would reach under the covers, touch her between her legs, including the outside of her vagina, and insert his fingers inside her vagina. She was frightened to cry out and wake the family. That abuse, the offences charged as indecent assault, lasted for a period of about six months and ended when they moved home and she got her own bedroom. She did not tell her mother about what had happened. She thought her mother preferred the appellant and that she would not be believed and be told off.
6.
Subsequently, when he was 15 and she was 14 years old, the appellant committed the offence of incest. He came home one evening from work in his overalls, having just left school and was working in a local garage as a trainee mechanic. He went into her bedroom and told her to lie on her bed on her side, not to make a sound or move and to lift her leg. When she did, he had sexual intercourse. He did not ejaculate inside her vagina. The incident ended with him throwing her a £1 note. Again, she did not tell her mother because she feared that she would not be believed. Her father left home in about 1968 and both parents have since died.
7.
The complainant has had a troubled adult life suffering from depression, self harming, attempting to take her life and blaming the appellant's actions for the breakdown of three of her marriages. When she was in her forties she told her mother what had happened. In 2008 she travelled from her home in South West England to confront the appellant in his home. She recorded what was said and asked him to apologise for what he had done. There were some admissions from the appellant and an apology. She eventually reported the matter to the police in 2013. When interviewed, the appellant made partial admissions.
8.
The appellant was 67 years of age when sentenced. The judge did not accept his mitigation that he did not realise that what he was doing was wrong. It was, said the judge, natural instinct not to have any kind of relationship with one's immediate brothers and sisters. Neither did the court accept as mitigation that he undoubtedly copied what he overheard and oversaw his parents do. Even in the early sixties, said the judge, people knew what was right and wrong, children included.
9.
He referred to the appellant's plea of guilty and entitlement to full credit, thereby sparing his sister the terrible ordeal of giving evidence, and the impact the offences had had on her in terms of a lifelong feeling of isolation and that she was to blame, not having the courage to tell anyone what had happened. She had had support from the appellant in her life, but it did not stop her feeling as she had.
10.
The judge assessed the appellant as not being a risk to anyone, having not committed any crime for over 40 years and having glowing testimonials from family and friends.
11.
The judge commented that the current sentencing guidelines were not entirely apt because of the enormous age of the case. He referred to the definitive guideline for an adult offender wherein a category 1B case, which counsel agreed this was, identified a starting point of three-and-a-half years' imprisonment and a range from two-and-a-half to five years for the incest offence and observed that, after a trial, it would have been in the region of four years' imprisonment. It was necessary, said the judge, to consider the legislation that existed back in the early 1960s and the sentencing climate at those times. The appellant was young at the time, 14 or 15 years old, and she was even younger, 13 or 14. She did not resist his advances but in no way did that mitigate what happened.
12.
The court did not consider it would be right to suspend any sentence of imprisonment as not only was it a question of what was right for the appellant, but also it was a question of doing what was right by the public and the community, as well as what was right for the complainant.
13.
The appellant is now 68 years of age and of positive good character. Nine letters from his family, including the complainant's daughter whom he looked after at the complainant's request when she was 18, spoke of his positive influence, devotion, generosity and kindness to others. He has supported the whole family, including the complainant, financially. He paid for a wedding and took her on family holidays. He was full of remorse for his actions as a teenager.
14.
The grounds of appeal as originally advanced were that the sentence was wrong in principle on the grounds of the appellant's current age and the fact that the offences were committed 53 years ago when he was aged 14 to 15 and he had thereafter lived an industrious and blameless life. Complaint was also made that the judge failed to have sufficient regard to the appellant being just as much a child as the victim and that his behaviour had undoubtedly been influenced by what he had observed his parents doing. It was also submitted that the judge gave too much weight to the victim impact statement at the expense of the mitigation and that too much reliance was placed on current guidelines which, given the delay and youth of the appellant, were not really appropriate.
15.
The court has to assess the culpability of the offender and the harm caused by his offences, having particular regard to modern sentencing guidelines and consider all material facts relating to the offender since the offences. The relevant Definitive Guideline of the Sentencing Council directs reference to Part 7 of the original Sentencing Guidelines Council Guidelines in relation to sentencing young offenders for offences with a lower statutory maximum sentence under the Sexual Offences Act 2003. Regrettably, the judge was not referred to this part of the guideline. Instead, he considered the guideline for adult offenders. All the offences for which the appellant fell to be sentenced in this case were contrary to the Sexual Offences Act 1956. The statutory maximum sentences at the time were seven years' custody for the offence of incest and two years' custody for the offence of indecent assault, regardless of the age of the offender. The modern equivalent offences would be contrary to section 25 of the Sexual Offences Act 2003, sexual activity with a child family member, to which section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 applies, setting a maximum sentence for an offender aged under 18 at five years' custody.
16.
Part 7 of the Sentencing Guidelines Council provides a starting point of a Detention and Training Order of 18 months for a first-time offender who pleaded not guilty for an offence involving penetration where one or more of the aggravating features is present, with a range of a Detention and Training Order of 6 to 24 months. In cases in which there are no aggravating features, the starting point is a community order with a range of an appropriate non-custodial sentence.
17.
In relation to the starting point, the Guideline provides that: "for younger offenders [that is under 17], a court should consider whether a lower starting point is justified in recognition of the offender's age and maturity."
18.
None of the aggravating features referred to in the guideline were present in this case. However, the assaults were part of a series of such offences which is an aggravating factor. The identified mitigating factor of the small disparity in age between the victim and the offender was present.
19.
No reference was made at the sentencing hearing to this guideline. In this respect the judge was significantly misled. Thus, the starting point may not have been three-and-a-half years' imprisonment as he assumed. The Crown Prosecution Service, to whom we have given the opportunity to make submissions, agree. Moreover, whenever sentencing a youth pursuant to section 41(1) of the Children and Young Persons Act 1933 and the Definitive Guideline of the Sentencing Council's Overarching Principles on Sentencing Youths, regard has to be had to the welfare of the offender. At 1.3 of that guideline a sentencing court is reminded that it must be aware of:
i.
"obligations under a range of international conventions which emphasise the importance of avoiding 'criminalisation' of young people whilst ensuring that they are held responsible for their actions and, where possible, take part in repairing the damage that they have caused. This includes recognition of the damage caused to the victims and understanding by the young person that the deed was not acceptable. Within a system that provides for both the acknowledgement of guilt and sanctions which rehabilitate, the intention is to establish responsibility and, at the same time, to promote reintegration rather than to impose retribution."
20.
The appellant was not, of course, being sentenced as a 15-year-old youth. It is necessarily artificial for a court to put itself directly into the position of sentencing an offender who was a young teenager at the time of the offence but is over 50 years older at the time of sentence. However, the court must do its best. It is common ground that if these events occurred and were brought to the attention of the authorities today, in the absence of aggravating features of the kind referred to in the guidelines, a 15-year-old boy who offended in this way might well be made the subject of a non-custodial sentence in order to educate, repair damage and effect rehabilitation rather than to impose retribution.
21.
We must ask ourselves therefore whether, on the facts here, the judge was justified in imposing a far harsher sentence on this appellant than would be imposed if he were a 15-year-old boy. We note that this is not a case where the appellant's behaviour has added to the complainant's reasons for not revealing what had happened, over and above the natural reluctance of a victim of a sexual assault to come forward. Further, as an adult, he has led an honest and industrious life for 50 years. He has been of considerable assistance to all his family, including the complainant and her immediate family. He is remorseful. He has acknowledged what he did and he has been punished. In our judgment, as is conceded by the Crown Prosecution Service, bearing in mind all the circumstances, it would be wrong in principle to impose an immediate custodial sentence on this appellant.
22.
In reaching this conclusion we do not overlook the substantial harm suffered by the complainant. We hope that she may have derived some comfort from her brother's belated acknowledgement of his behaviour. Accordingly, we allow the appeal and quash the sentences passed in the lower court.
23.
LADY JUSTICE HALLETT: Mr B, what we intend to do is impose a community penalty with the least onerous conditions because you have already served 11 weeks, as we understand it. Therefore the community penalty will be a penalty for three months on each count concurrent and there will be a condition of residence at the address you gave us earlier for one week. The liaison probation officer in this court is going to make sure that the authorities where you are detained understand, but what that means is you are going to be released immediately, subject to a community order with a condition of residence of one week. There will be a notification requirement for five years. | {"ConvCourtName": ["Crown Court at Wood Green,"], "ConvictPleaDate": ["15th May 2015"], "ConvictOffence": ["offence of incest", "indecent assault"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleas"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Wood Green,"], "Sentence": ["15 months' imprisonment", "eight months' imprisonment for two offences"], "SentServe": ["concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["15"], "OffJobOffence": ["working in a local garage as a trainee mechanic"], "OffHomeOffence": ["lived with their parents"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["his sister"], "VictimType": ["The complainant, MB"], "VicNum": ["the victim"], "VicSex": ["She"], "VicAgeOffence": ["14"], "VicJobOffence": ["14"], "VicHomeOffence": ["lived with their parents"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["children would witness"], "DefEvidTypeTrial": ["he did not realise that what he was doing was wrong"], "PreSentReport": ["data not available"], "AggFactSent": ["troubled adult life suffering from depression"], "MitFactSent": ["remorse", "glowing testimonials from family and friends.", "entitlement to full credit", "small disparity in age", "positive good character."], "VicImpactStatement": ["victim impact statement"], "Appellant": ["appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against those sentences."], "AppealGround": ["he judge failed to have sufficient regard to the appellant being just as much a child", "sentence was wrong in principle"], "SentGuideWhich": ["10(1) of the Sexual Offences Act 1956", "Definitive Guideline of the Sentencing Council", "Schedule 3 to the Sexual Offences Act 2003", "Definitive Guideline of the Sentencing Council's Overarching Principles on Sentencing Youths", "Sexual Offences (Amendment) Act 1992", "Part 7 of the Sentencing Guidelines Council", "section 41(1) of the Children and Young Persons Act 1933", "Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009", "91 of the Powers of Criminal Courts (Sentencing) Act 2000", "definitive guideline for an adult offender"], "AppealOutcome": ["allow the appeal and quash the sentences"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["it would be wrong in principle to impose an immediate custodial sentence"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Crown Court At Wood Green,"], "ConvictPleaDate": ["2015-05-15"], "ConvictOffence": ["indecent assault", "offence of incest"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Don't know"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Wood Green"], "Sentence": ["eight months' imprisonment for two offences", "15 months' imprisonment"], "SentServe": ["Concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["15"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Relative"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Female"], "VicAgeOffence": ["14"], "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": ["Psychological harm"], "MitFactSent": ["small disparity in age", "positive good character.", "remorse", "glowing testimonials from family and friends.", "entitlement to full credit"], "VicImpactStatement": ["Yes"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against those sentences."], "AppealGround": ["he judge failed to have sufficient regard to the appellant being just as much a child", "sentence was wrong in principle"], "SentGuideWhich": ["Definitive Guideline of the Sentencing Council's Overarching Principles on Sentencing Youths", "section 41(1) of the Children and Young Persons Act 1933", "Part 7 of the Sentencing Guidelines Council", "91 of the Powers of Criminal Courts (Sentencing) Act 2000", "Definitive Guideline of the Sentencing Council", "definitive guideline for an adult offender", "Sexual Offences (Amendment) Act 1992", "Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009", "Schedule 3 to the Sexual Offences Act 2003", "10(1) of the Sexual Offences Act 1956"], "AppealOutcome": ["allow the appeal and quash the sentences"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["it would be wrong in principle to impose an immediate custodial sentence"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 373 |
Case No: 200304937C1;
200301276D4;
200404082B4;
200306340D3;
200306341D3;
200405578 B5
Neutral Citation Number:
[2005] EWCA Crim 1415
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday, 27 May 2005
Before :
LORD JUSTICE MANCE
MR JUSTICE NEWMAN
and
MR JUSTICE FULFORD
- - - - - - - - - - - - - - - - - - - - -
Between :
Barry Quayle
First Appellant
- and -
Reay James Wales
Second Appellant
- and -
Graham Jack Kenny
Third Appellant
- and -
Anthony Taylor
Fourth Appellant
- and -
May Po Lee
Fifth Appellant
- and -
D (Attorney-General’s Reference)
- 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 E Fitzgerald QC and Mr P Mytton
for the
First Appellant
Mr E Fitzgerald QC and Mr B Cooper
for the
Second Appellant
Ms K Hodson
for the
Third Appellant
Mr R Menon
for the
Fourth Appellant
Mr Adrian Eissa
for the
Fifth Appellant
Mr Mukul Chawla QC and Mr David McGonigal
(instructed by
Crown Prosecution Service
) for the
Respondent
in the first three appeals
Mr Mukul Chawla QC and Ms Jacqueline Hall
(instructed by
HM Customs and Excise
) for the
Respondent
in the fourth and fifth appeals
Attorney-General’s Reference:
Mr K Sutton
for
D (acquitted person)
Mr J Rees
instructed by the
Attorney-General
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Mance:
Introduction and summary of facts
1.
There are before us five appeals against conviction and one Attorney General’s reference. All these cases raise issues about the availability and extent of any defence of medical necessity in respect of the commission of what would otherwise constitute offences against the legislation governing the cultivation, production, importation and possession of cannabis. We start with a summary of the relevant facts.
2.
Quayle:
i)
Mr Quayle now aged 38 is a bi-lateral below-knee amputee as a result of operations in 1997 and 2000. He suffers pain, which he has rated as usually 8/10 and at worst 12/10 (sic). On a search of his home on 9
th
November 2002, he was found to be cultivating cannabis plants in his loft for his personal use. He said in interview that “I cannot stop because at night it gives me more than anything else they give me, it is the only thing that gives me relief”; he said that he did not take diazepam and temazepam, with which he had been prescribed, because they “knocked him” out and he had two children with attention deficit disorder, who he could not risk not hearing.
ii)
Mr Quayle was charged with the cultivation of cannabis plant in contravention of
s.6(1) of the Misuse of Drugs Act 1971
. His defence statement said that “he did grow cannabis, but did so out of necessity and uses it for personal use to alleviate pain”. Expert reports were produced on his behalf. Dr Reynolds, a Fellow of the Royal College of Anaesthetists and a member of the Pain Society, saw Mr Quayle on 12
th
June 2003. He explained that pain is either nociceptive (the result of damaged tissue) or neuropathic (associated with malfunction of the nerves). The former tends to respond to normal pain-killers, the latter to drugs working on nerves, such as those used to treat epilepsy or depression. He set out Mr Quayle’s medical history and the drugs with which he had been prescribed by his GP since 1999, and said:
“At night he takes up to four hours to get to sleep. He is prescribed diazepam and temazepam. He claims that his social circumstances discourage him from taking them. Smoking a joint of cannabis relieves his pain and relaxes him so that he gets to sleep within an hour or so.”
iii)
Dr Reynolds concluded:
“Mr Quayle is a man with an extensive history of severe pain, which a long succession of doctors has accepted is genuine. He has received incomplete relief of this symptom despite appropriate conventional medication. Part of his problem is that his sleep is disturbed despite prescription of regular night sedation. Smoking cannabis gives some assistance with his pain and insomnia.
Without entering into the debate around legality, there is no question in my mind that this patient has taken cannabis with benefit to his chronic symptoms.”
iv)
Victoria Jenkins, a BSc in pharmacology and toxicology, explained that the main psychologically active chemical in all forms of cannabis is tetrahydrocannabinol (THC), that cannabis has analgesic (pain-relieving) properties, muscle-relieving properties and anti-emetic properties and was used medically for these purposes in the 19
th
century. Her report (endorsed by Mr Longford, a BSc in biological sciences and PhD in toxicology) stated:
“… As with most drugs, the exact effects of cannabis on an individual are difficult to predict. ….
Mr Quayle suffers from nociceptive and neuropathic pain and it is quite feasible that the pain relief provided by cannabis would be as good if not better than other prescription medications for the treatment of these kinds of pain. Cannabis also produces relaxation and it is therefore likely to assist with any sleep problems that Mr Quayle may have.
…..
Most currently available analgesic drugs have serious side effects and are not always effective in the treatment of pain particularly neuropathic pain, which is resistant to the analgesic effects of drugs such as opioids. Various cannabinoids produce inhibition of pain responses. At present, there is laboratory evidence which supports an analgesic effect of cannabinoids, but there is no reliable clinical evidence to support this. …. Mr Quayle has been examined by a pain consultant who concluded that he suffered from both nociceptive and neuropathic pain, which is likely to respond well to cannabis. If he suffers from phantom-limb pain …., this is also likely to respond well to cannabis. ….”
v)
On 24
th
July 2003, at the outset of Mr Quayle’s trial before HHJ O’Rourke in Lincoln Crown Court, the judge ruled that he would not leave any defence of necessity to the jury. Mr Quayle thereupon pleaded guilty and was sentenced to 4 months’ imprisonment suspended for six months. He appeals on the basis that the judge erred in his ruling. The basis of that ruling was that necessity could not be available as a defence unless, firstly, “the commission of the crime was necessary or reasonably believed to be necessary by the defendant for the purpose of avoiding or preventing death or serious injury to himself or another”, as well as, secondly, committed for that reason alone and, thirdly, objectively reasonable and proportionate. The judge held that “it extends the meaning …. of the words ‘serious injury to himself’ far too much to imply into that the avoidance of pain or discomfort of however serious a degree when that derives from some condition the defendant is already suffering from”.
vi)
Before us Mr Edward Fitzgerald QC made a submission, evidently not made to the trial judge, to the effect that Mr Quayle’s conduct had not only to be viewed in the context of the serious pain to which he was prone, but that there was also a risk of suicide. He referred to a GP’s medical report dated 5
th
November 2002, following a review of Mr Quayle on 1
st
November 2002. It stated that “he still has an irregular sleep pattern, anhedonia and is feeling thoughts of suicide. Constantly on edge for months, leading to certain levels of aggression within the home”. But Mr Quayle was arrested eight days after this report, and his statements after arrest indicate that he had been taking cannabis for some time. The reported thoughts of suicide cannot have led him to take cannabis (or it seems to avoid aggression). It does not surprise us that, in these circumstances, no suggestion was made to the trial judge that the self-administration of cannabis was “necessary” to avoid a risk of suicide, or that no criticism is addressed in the grounds to the fact that the judge in his ruling did not address any such risk.
3.
Wales:
i)
Mr Wales now aged 53 suffers from a large number of injuries and ailments. He fractured two vertebrae in the Navy in 1968. He broke five further vertebrae in a traffic accident in 1981. He contracted tuberculosis resulting in lung scars and breathing problems in 1983. He had a further accident lacerating his tendons and breaking his left wrist. In 1990 he developed chronic pancreatitis for alcohol-related reasons together with depression and chronic (in his words at one point “life-threatening”) pain. His liver has been damaged by hepatitis B contracted in Thailand. He has rheumatoid arthritis, osteoporosis and osteoarthritis.
ii)
A search of Mr Wales’s home on 4
th
July 2002 discovered some 20 cannabis plants growing in a back bedroom. He said in interview that he took cannabis to get off morphine (apparently a mistake for dihydrocodeine) tablets to which he had become addicted. Mr Wales was charged with the production of cannabis contrary to s.4(2)(a) of the
Misuse of Drugs Act 1971
, and a trial spread over three days took place on 13
th
/15
th
January 2003 before HHJ Thompson in the Ipswich Crown Court. In support of a defence of medical necessity, Mr Wales adduced evidence that he suffered chronic pain from his pancreatitis as well as from bleeding caused by anti-inflammatory drugs which he had been prescribed for his arthritis. He had become addicted to one drug, dihydrocodeine, which he had been prescribed since 1981, and he would rather smoke cannabis than take morphine. Dihydrocodeine and morphine stopped him eating, while cannabis gave him an appetite and put him above the pain. “It doesn’t take the pain away; it helps me cope with it”; and it had no side effects. He wished it was in tablet form.
iii)
Mr Wales’s GP, Dr Marcolyn, confirmed that Mr Wales was unable to tolerate anti-inflammatory drugs because of their gastric effect and the risk of them causing pancreatitis; and that he had taken dihydrocodeine for many years and become addicted to it. Dr Bailey, a consultant in anaesthesia and pain management who had treated Mr Wales, said that Mr Wales took 6 to 8 dihydrocodeine tablets a day and occasionally, every two or so months, if things were bad, the stronger opiate, morphine. He had had two or three admissions in the past six months which might be related to withdrawal symptoms from dihydrocodeine or alcohol. He did not qualify for a cannabis trial, because, Dr Bailey said, that was only available for multiple sclerosis (MS) sufferers. Dr Bailey suggested further treatment with dihydrocodeine and celecoxib (although that drug has since, it appears, been withdrawn). Dr Notcutt, a consultant anaesthetist, lecturer and researcher on pain and cannabinoids, described the risks of anti-inflammatory drugs, which he said that he personally would not prescribe. These risks include indigestion, ulcers and peritonitis. He said that peritonitis is serious. It causes as many as 2000 deaths a year in the United Kingdom, though mainly among the elderly. He agreed that, if there was a specific risk of injury from any anti-inflammatory drug, one would not expect it to be prescribed. The overall benefits of cannabinoids were pain relief and pain distancing, in that the patient was distanced from the pain and therefore not so bothered by it. That he said also happens with morphine. Further, cannabis gives improved sleep, relief of muscle spasms and bladder spasms for patients with multiple sclerosis, relief of constipation, relaxation and relief of anxiety, misery and depression. He said that some patients experience side effects which cause them to discontinue using cannabis, and that “A lot of patients don’t like smoking so they eat it or they go without”. However, he said that, if he were able, legally, to write a prescription, he “would be trying cannabis certainly for pain”, in the form of a preparation sprayed under the tongue.
iv)
The judge left the defence of necessity to the jury, who convicted. The summing up is criticised (a) for failure to explain that serious pain could amount to serious injury, in particular because of its psychological consequences; and (b) for a direction that the defence could only be available if the defendant believed that he would (i) imminently and (ii) inevitably suffer serious injury.
4.
Taylor
and
Lee:
i)
Mr Taylor was stopped by Customs while passing through the green channel at Luton Airport on 9
th
February 2003 on arrival from Switzerland. Before any questions were put to him, he handed to Customs his card, reading “medicinal cannabis and natural health consultant”, and when asked volunteered that he had with him organic cannabis for purposes of medical necessity in connection with a clinic of which he is or was the proprietor, called Tony’s Holistic Clinic, in King’s Cross. His luggage was found to contain 20.5 kgs of cannabis.
ii)
Mr Taylor is not medically qualified, but the clinic had at the time some 700 patients, many HIV-positive or suffering AIDS and others with MS, all said to have to produce a letter of diagnosis written by a doctor and identification before becoming patients. Mr Taylor at one point described the clinic as a “charity”, but at another referred to it as a “business” and explained that 5% of the customers got cannabis free and one-third got it at cost, with the rest therefore paying a full price. He explained that the price of the 20.5 kgs had been SFr 75,000 (some £35,000, although he said the cannabis had been bought on credit) and that this cheap Swiss price “allows a lot of profit” which funded the salaries of five people at the clinic (all including himself apparently remunerated at £7 per hour) as well as expenses such as the airfares. The cannabis was organically grown in Switzerland, and contained no pesticides, which was why he procured it there, rather than on the streets in London. We note in parenthesis that, when a Customs officer stated in interview that “I understand that it’s not for your personal use”, Mr Taylor replied “Not all of it no”. If and so far as this might suggest that some was for his personal use, that has later been denied and the present appeal falls to be considered on the basis that it was all for use in the clinic. Mr Taylor was charged with being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a Class B controlled drug, contrary to
s.170(2) of the Customs and Excise Management Act 1979
. He was bailed and his passport was surrendered as a condition of his bail.
iii)
A month later, Ms May Po Lee, a former employee in a health shop run by Mr Taylor below his clinic, was stopped while going through the green channel at Luton Airport after arrival from Switzerland. She immediately produced a letter from Mr Taylor indicating that she had cannabis for medical use for which Mr Taylor was responsible. Her luggage was found to contain 5.03 kgs of cannabis. The importation was because Tony’s Holistic Clinic was running short of cannabis. Ms Lee explained in interview that she was engaged by Mr Taylor as a courier for the trip, that he had paid for her flight and hotel with his credit card, and that she would have been paid £800 to go and collect the cannabis. She explained that the clinic was a holistic centre dealing with very ill patients, who got a lot a relief from the cannabis, especially towards the end of their lives. Mr Taylor and Ms Lee were, in relation to this importation, both charged with being knowingly concerned in the fraudulent evasion of the prohibition or restriction on the importation of a Class B controlled drug.
iv)
In his defence statement in respect of both charges against him, Mr Taylor maintained that the cannabis was on each occasion imported “strictly for the purposes of alleviating the pain and suffering of established customers all of whom are sufferers from significant debilitating diseases and/or terminal illnesses and were fundamentally dependant on the use of a certain type of cannabis to maintain a basic quality of life”, and that “His principal motivation was a humanitarian concern that people would be subjected to significant pain without the cannabis. He did not believe that other medicines, particularly morphine, would provide the same palliative effect for its users while simultaneously maintaining a quality of life”. In her defence statement, Ms Lee said that “The principal reason for her importation of cannabis into the United Kingdom was her belief that if she did not import the substance, the patients of Tony’s Holistic Clinic would suffer from serious physical injuries. Ms Lee would not have imported cannabis into the United Kingdom, had she not held this belief”.
v)
The defence served various expert reports. Dr Notcutt would have given evidence on pain relief and cannabis, no doubt on the lines set out above in relation to
Wales
. Dr Iverson, author of
The Science of Marijuana
(2000), would have covered the use of cannabis in relation to AIDs sufferers and have spoken to cannabis’s relative non-toxicity and its limited adverse effects within a range tolerated for conventional medicines. Dr Grinspoon, author of
Marijuana Revisited
(1978) and
Marijuana, The Forbidden Medicine
(1993) would have spoken of cannabis’s “unusual safety” and said that “Cannabis can reduce pain. However, it is inconsistent and can in some cases heighten sensitivity to pain. Consequently, the use of cannabis for pain relief must be considered on a case by case basis”. The defence also proposed to call two doctors who had on occasions referred patients to Tony’s Holistic Clinic, namely Dr Youle, and HIV specialist at the Royal Free Hospital, Hampstead. The latter would also have supported the view that cannabis has quite clear therapeutic uses, and can help to alleviate medical symptoms.
vi)
It was also proposed to call four or five patients to explain their conditions, why they used cannabis, how it benefited them, why other conventional drugs did not and whether they would have suffered death or serious injury but for the supply to them of cannabis by Tony’s Holistic Clinic.
vii)
The matter came on for trial at the Luton Crown Court before HHJ Moss on 13
th
October 2003. After hearing argument, the judge ruled on 14
th
October 2003 that both the Crown case and the defence case were sufficiently clear for him to be able to decide whether there was any possible defence of necessity, that there was not, that the defendants’ proposed evidence on this subject was inadmissible, and that the Crown did not therefore have any case of necessity to disprove. The judge for the purposes of his reasoning was prepared to accept that pain equates with serious injury, but considered nonetheless that the medical evidence “taken at its highest” did not take the case over the threshold set out in
Martin
[2000] 2 CAR 42. There was insufficient “responsibility” for patients, insufficient connection in time with any risk and the evidence was of choice rather than any “forcing” of either defendant’s will.
viii)
As a result of this ruling both defendants pleaded guilty. On 3
rd
November Mr Taylor was sentenced to 18 months’ imprisonment for the first and 6 months consecutive for the second importation, making a total of two years imprisonment, suspended for two years, and was ordered to pay £7,500 costs. Ms Lee was sentenced to 100 hours community service for her part in the second importation. Both defendants now appeal on the ground that the judge’s ruling was in error, the evidence of alleged necessity should have been admitted and the matter left to the jury.
5.
Kenny:
i)
Mr Kenny now aged 25 injured his back in or about 2000 picking up a piece of glass at work, and his case was that he feels pain every morning and that his back can tighten up for a day or a week.
ii)
On a search of his house on 4
th
March 2003 there were found 16 cannabis plants and 211.54 gms of cannabis. In interview, Mr Kenny accepted that these were his, and said that he had smoked cannabis - some 5 to 10 reefers a day – to avoid serious ongoing pain and consequent mental suffering caused by his back injury. Cannabis gave him the fastest relief, and had fewer side effects than other drugs. It enabled him to relax and set his pain aside. He was charged with producing the 16 cannabis plants and possessing the 211.54 gms of cannabis contrary to ss. 4(1) and 5(1) of the
Misuse of Drugs Act 1971
.
iii)
His trial began before HHJ Barry in the Bradford Crown Court on 7
th
June 2004. The defendant gave evidence along the lines of his interview. He said that his life had been much affected by the back pain which he felt every morning; and at intervals, sometimes once a month, sometimes longer or shorter, he suffered spasms, when he would cry out and hold his breath and be unable to walk, to pull up on his socks or to wash himself; and such an effect could last a day or even longer, up to a week, and he was never able to relax. He had had about ten conventional sorts of painkiller, electronic treatment, one session of acupuncture (but he proved to have a phobia to needles) and, when he became depressed, antidepressants. In these circumstances he had come on most days to use cannabis which gave him the fastest relief and had fewer side effects. Its effect was to distract the pain, to enable him to relax and set the pain aside in his mind, and in due course with its assistance he was able to get himself back on his feet and go to work and with work his depression had lifted.
iv)
The defence also called evidence from Dr Hickey who said that no physical lesions were detectable, but that the defendant suffered chronic back pain - though a doctor could only decide what level of pain on the basis of what the patient said. The defence also called a Mr Atha, who has taken a keen interest in the therapeutic uses of cannabis for over 15 years and is described as a Drug Abuse Research Consultant with the Independent Drug Monitoring Unit, 100 Park Road, Hindley, Wigan. He prepared two very lengthy reports, one dealing with drugs and their production generally and the other with the subject of medical necessity. He said that cannabis could itself have a potent effect in reducing pain, particularly on a patient’s nerves, and could also increase the effectiveness of prescription drugs designed to reduce pain.
v)
At the close of the defence case, the judge ruled after argument that there was no defence of medical necessity capable of being left to the jury. There were in his view public policy limitations on the availability of the defence; it required a fear of a danger extraneous to the defendant himself; and it could not provide a licence to offend as often as necessary over years, in order to avoid pain, when pain, although to some extent ascertainable objectively, was largely only capable of assessment by the sufferer himself. Mr Kenny now appeals on the ground that the judge should have left the defence to the jury.
6.
Attorney Generals’ Reference (No. 2 of 2004):
i)
During the course of this reference, the defendant waived his right to anonymity, so that we can refer to him by name as Mr Ditchfield.
ii)
On 6
th
September 2003 Mr Ditchfield’s car was searched by police, and a spectacles case was recovered from its glove compartment, which was found to contain two plastic bags, one of which contained 6.8 gms of cannabis, the other of which contained 6.88 gms of cannabis resin. In interview Mr Ditchfield said that he was a campaigner who thought that sick people should have the right to use cannabis medicinally, and that, if a sick person with a genuine medical need (such as a sufferer from MS) asked him for cannabis, he would give it to him free. The cannabis in his spectacles case was, he said, of medicinal quality, and was not for his personal use but for supply to anyone with a medical requirement who might need it to relieve their suffering. He said that most of the sick people he knew suffered from terrible diseases, and, although they were prescribed medication, it was cannabis that gave them relief. Mr Ditchfield was charged with two counts of possession of a controlled drug of Class B with intent to supply contrary to
s.5(3) of the Misuse of Drugs Act 1971
, and two corresponding alternative counts of simple possession of such drug contrary to s.5(2).
iii)
He was tried before The Recorder of Chester, HHJ Elgan Edwards DL, on 13
th
to 15
th
January 2004. At the outset of the trial, before evidence, the judge invited and heard submissions whether any defence of necessity could be available to Mr Ditchfield. Initially, he considered not. But he was persuaded in the light of this court’s decision in
Philip David Lockwood
[2002] EWCA Crim 60
to revise his view.
iv)
Mr Ditchfield then gave evidence on the lines of his interview, and called a Mr Glyn Williams, a MS sufferer with prostate cancer, who said that Mr Ditchfield had done him the most good, that morphine has side effects and that Mr Ditchfield does not take money.
v)
The judge left the defence to the jury, directing them that mental injury can be as serious as physical injury, and leaving them to consider “whether serious injury included the alleviation of symptoms of a dreadful illness like MS”. The jury entered verdicts of not guilty on all counts.
vi)
The Attorney General now seeks the opinion of this Court on the following question of law:
“May the defence of necessity be available to a defendant in respect of an offence of possession of cannabis or cannabis resin with intent to supply, contrary to
section 5(3) of the Misuse of Drugs Act 1971
, if his case is that he was in possession of the controlled drug intending to supply it to another for the purpose of alleviating pain arising from a pre-existing illness such as multiple sclerosis?”
The legislative framework
7.
Under the
Misuse of Drugs Act 1971
, a “controlled drug” is any substance or product specified in Part I, II or III of Schedule 2 to the Act. Class A, B and C drugs are any of the substances and products specified in, respectively, Parts I, II and III of Schedule 2. These different grades correspond with the seriousness attached to the offences relating thereto. Prior to 29
th
January 2004, cannabis and cannabis resin were Class B drugs, while cannabinol (except where contained in cannabis or cannabis resin) and its derivatives were Class A drugs. As from 29
th
January 2004, cannabis, cannabis resin, cannabinol and cannabinol derivatives have all been reclassified as Class C drugs by the Misuse of Drugs Act 1971 (Modification) (No. 2) Order 2003 (SI 2003 No. 32201). The reclassification followed the recommendation of a report in March 2002 of the Advisory Council on the Misuse of Drugs. The Home Secretary announced his acceptance of this report in July 2002, on the basis that it would reflect more accurately the relative harmfulness of drugs, give the misuse of drugs legislation greater credibility and indicate the government’s priority to tackle Class A drugs.
8.
The 1971 Act
contains provisions as follows:
“3
Restriction of importation and exportation of controlled drugs
(1)
Subject to subsection (2) below-
(a) the importation of a controlled drug; and
(b) the exportation of a controlled drug
are hereby prohibited.
(2)
Subsection (2) does not apply-
(a) to the importation or exportation of a controlled drug which is for the time being excepted from paragraph (a) or, as the case may be, paragraph (b) of subsection (1) above by regulations under
section 7
of this Act.
(b) to the importation or exportation of a controlled drug under and in accordance with the terms of a licence issued by the Secretary of State and in compliance with any conditions attached thereto.
4
Restriction on the prohibition and supply of controlled drugs
(1)
Subject to any regulations under
section 7
of the Act for the time being in force, it shall be unlawful for a person-
(a) to produce a controlled drug; or
(b) to supply or offer to supply a controlled drug to another.
(2) Subject to section 28 of this Act, it is an offence for a person-
(a) to produce a controlled drug in contravention of subsection (1) above; or
(b) to be concerned in the production of such a drug in contravention of that subsection by another.
5
Restriction on possession of controlled drugs
(1)
Subject to any regulations under
section 7
of the Act for the time being in force, it shall not be lawful for a person to have a controlled drug in his possession.
(2)
Subject to section 28 of this Act and to subsection (4) below, it is an offence for a person to have a controlled drug in his possession in contravention of subsection (1) above.
(3)
Subject to section 28 of this Act, it is an offence for a person to have a controlled drug in his possession, whether lawfully or not, with intent to supply it to another in contravention of section 4(1) of this Act.
(4) …..
6
Restrictions on cultivation of cannabis plant
(1)
Subject to any regulations under
section 7
of the Act for the time being in force, it shall not be lawful for a person to cultivate any plant of the genus
Cannabis
.
(2)
Subject to section 28 of this Act, it is an offence to cultivate any such plant in contravention of subsection (1) above.”
Ss. 5(4) and 28 of the Act deal with defences not presently relevant (in the case of s.28, relating to knowledge of facts necessary for the relevant offence).
9.
S.7
of
the 1971 Act
provides:
“7(1)
The Secretary of State may by regulations-
(a) except from section 3(1)(a) or (b), 4(1)(a) or (b) or 5(1) of this Act
such controlled drugs as may be specified in the regulations; and
(b) make such other provision as he thinks fit for the purpose of making it lawful for person to do things which under any of the following provisions of this Act, that is to say section 4(1), 5(1) and 6(1), it would otherwise be unlawful for them to do.
(2) Without prejudice to the generality of paragraph (b) of subsection (1) above, regulations under that subsection authorising the doing of any such thing as is mentioned in that paragraph may in particular provide for the doing of that thing to be lawful –
(a) if it is done under and in accordance with the terms of a licence or other authority issued by the Secretary of State and in compliance with any conditions attached thereto; or
(b) if it is done in compliance with such conditions as may be prescribed.
(3) Subject to subsection (4) below, the Secretary of State shall so exercise his power to make regulations under subsection (1) above as to secure –
(a) that it is not unlawful under section 4(1) of this Act for a doctor, dentist, veterinary practitioner or veterinary surgeon, acting in his capacity as such, to prescribe, administer, manufacture, compound or supply a controlled drug, or for a pharmacist or a person lawfully conducting a retail pharmacy business, acting in either case in his capacity as such, to manufacture, compound or supply a controlled drug; and
(b) that it is not unlawful under
section 5(1)
of this Act for a doctor, dentist, veterinary practitioner, veterinary surgeon, pharmacist or person lawfully conducting a retail pharmacy business to have a controlled drug in his possession for the purpose of acting in his capacity as such.
(4) If in the case of any controlled drug the Secretary of State is of the opinion that it is in the public interest –
(a) for production, supply and possession of that drug to be either wholly unlawful or unlawful except for purposes of research or other special purposes; or
(b) for it to be unlawful for practitioners, pharmacists and persons lawfully conducting retail pharmacy businesses to do in relation to that drug any of the things mentioned in subsection (3) above except under a licence or other authority issued by the Secretary of State,
he may by order designate that drug as a drug to which this subsection applies; and while there is in force an order under this subsection designating a controlled drug as one to which this subsection applies, subsection (3) above shall not apply as regards that drug.
…..
(6) The power to make orders under subsection (4) above shall be exercisable by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(7) The Secretary of State shall not make any order under subsection (4) above except after consultation with or on the recommendation of the Advisory Council.”
10.
Pursuant to the powers conferred by s.7 as well as certain other sections of
the 1971 Act
, the Secretary of State made the Misuse of Drugs Regulations 1985 (SI 1985 No. 2066), revoked and replaced with effect from 1
st
February 2001 by the Misuse of Drugs Regulations 2001 (SI 2001 No. 3998). These regulations contain exemptions from the offence provisions of
the 1971 Act
. In that connection, they contain schedules numbered 1 to 5, the operation of which is conveniently summarised in the Report of the Independent Inquiry into the
Misuse of Drugs Act 1971
(the Runciman Report) as follows. Schedule 1, lists drugs, from both Class A and Class B, which may only be used for medical or scientific research. These include cannabis, cannabis resin, cannabinol and cannabinol derivatives not being dronabinol or its stereoisomers. (Dronabinol is an anti-emetic and appetite stimulant marketed as Marinol, which was moved from schedule 1 to schedule 2 by the Misuse of Drugs (Amendment) Regulations 1995 (SI 1995 No. 2048)). All these drugs are also designated separately in The Misuse of Drugs (Designation) Order 2001 (SI No. 2001 No. 3997) as drugs to which s.7(4) of
the 1971 Act
applies. Schedule 2 specifies drugs in relation to which there are controls over prescription, secure storage and record keeping, including cocaine, heroin, methadone and morphine. These drugs may be prescribed and lawfully supplied and possessed on prescription. Otherwise, their supply and possession, together with their importation, exportation and production, are offences except under licence. Schedule 3 lists drugs subject to a less elaborate range of controls. Schedule 4 lists drugs which may lawfully be possessed by anyone provided they are in the form of medicinal products, and may be lawfully imported or exported, if in the form of such products for self-administration. Schedule 5 contains very weak preparations or products which may be freely imported, exported or possessed, but for the production or supply of which authority is needed.
11.
The prescriptive nature and the detail of the scheme of regulation, exception and permission contained in the
Misuse of Drugs Regulations 2001
is illustrated by the following extracts:
“
Exceptions for drugs in Schedules 4 and 5 ….
4
(1) Section 3(1) of the Act (which prohibits the importation and exportation of controlled drugs) shall not have effect in relation to the drugs specified in Schedule 5.
(2) The application of section 3(1) of the Act, in so far as it creates an offence, and the application of sections 50(1) to (4), 68(2) and (3) or 170 of the
Customs and Excise Management Act 1979
, in so far as they apply in relation to a prohibition or restriction on importation or exportation having effect by virtue of section 3 of the Act, are hereby excluded in the case of importation or exportation by any person for administration to himself of any drug specified in Part II of Schedule 4 which is contained in a medicinal product.
(3)
Section 5(1)
of the Act (which prohibits the possession of controlled drugs) shall not have effect in relation to -
(a) any drug specified in Part II of Schedule 4 which is contained in a medicinal product;
(b) the drugs specified in Schedule 5.
…..
Licences to produce etc. controlled drugs
5.
Where any person is authorised by a licence of the Secretary of State issued under this regulation and for the time being in force to produce, supply, offer to supply or have in his possession any controlled drug, it shall not by virtue of
section 4(1)
or
5(1)
of the Act be unlawful for that person to produce, supply, offer to supply or have in his possession that drug in accordance with the terms of the licence and in compliance with any conditions attached to the licence.”
…..
Administration of drugs in Schedules 2, 3, 4 and 5
7.
- (1) Any person may administer to another any drug specified in Schedule 5.
(2) A doctor or dentist may administer to a patient any drug specified in Schedule 2, 3 or 4.
Production and supply of drugs in Schedules 2 and 5
8.
- (1) Notwithstanding the provisions of section 4(1)(a) of the Act -
(a) a practitioner or pharmacist, acting in his capacity as such, may manufacture or compound any drug specified in Schedule 2 or 5;
(b) a person lawfully conducting a retail pharmacy business and acting in his capacity as such may, at the registered pharmacy at which he carries on that business, manufacture or compound any drug specified in Schedule 2 or 5.
(2) Notwithstanding the provisions of section 4(1)(b) of the Act, any of the following persons, that is to say -
(a) a practitioner;
(b) a pharmacist;
(c) a person lawfully conducting a retail pharmacy business;
(d) the person in charge or acting person in charge of a hospital or nursing home which is wholly or mainly maintained by a public authority out of public funds or by a charity or by voluntary subscriptions;
(e) in the case of such a drug supplied to her by a person responsible for the dispensing and supply of medicines at the hospital or nursing home, the sister or acting sister for the time being in charge of a ward, theatre or other department in such a hospital or nursing home as aforesaid;
…..
may, when acting in his capacity as such, supply or offer to supply any drug specified in Schedule 2 or 5 to any person who may lawfully have that drug in his possession, except that nothing in this paragraph authorises -
(i) the person in charge or acting person in charge of a hospital or nursing home, having a pharmacist responsible for the dispensing and supply of medicines, to supply or offer to supply any drug; or
(ii) a sister or acting sister for the time being in charge of a ward, theatre or other department to supply any drug otherwise than for administration to a patient in that ward, theatre or department in accordance with the directions of a doctor or dentist.
…..
(4) Notwithstanding the provisions of section 4(1)(b) of the Act, a person who is authorised by a written authority issued by the Secretary of State under and for the purposes of this paragraph and for the time being in force may, at the premises specified in that authority and in compliance with any conditions so specified, supply or offer to supply any drug specified in Schedule 5 to any person who may lawfully have that drug in his possession.
…..
Production and supply of drugs in Schedules 3 and 4
9.
- (1) Notwithstanding the provisions of section 4(1)(a) of the Act -
(a) a practitioner or pharmacist, acting in his capacity as such, may manufacture or compound any drug specified in Schedule 3 or 4;
(b) a person lawfully conducting a retail pharmacy business and acting in his capacity as such may, at the registered pharmacy at which he carries on that business, manufacture or compound any drug specified in Schedule 3 or 4;
(c) a person who is authorised by a written authority issued by the Secretary of State under and for the purposes of this sub-paragraph and for the time being in force may, at the premises specified in that authority and in compliance with any conditions so specified, produce any drug specified in Schedule 3 or 4.
(2) Notwithstanding the provisions of section 4(1)(b) of the Act, any of the following persons, that is to say -
(a) a practitioner;
(b) a pharmacist;
(c) a person lawfully conducting a retail pharmacy business;
….
may, when acting in his capacity as such, supply or offer to supply any drug specified in Schedule 3 or 4 to any person who may lawfully have that drug in his possession.
Possession of drugs in Schedules 2, 3 and 4
10.
- (1) Notwithstanding the provisions of
section 5(1)
of the Act -
(a) a person specified in one of sub-paragraphs (a) to (j) of regulation 8(2) may have in his possession any drug specified in Schedule 2;
(b) a person specified in one of sub-paragraphs (a) to (h) of regulation 9(2) may have in his possession any drug specified in Schedule 3 or 4;
(c) a person specified in regulation 9(3)(b) or (c ) or (6) may have in his possession any drug specified in Schedule 3,
for the purpose of acting in his capacity as such a person, except that nothing in this paragraph authorises -
(i) a person specified in sub-paragraph (e) of regulation 8(2);
(ii) a person specified in sub-paragraph (c ) of regulation 9(3); or
(iii) a person specified in regulation 9(6),
to have in his possession any drug other than such a drug as is mentioned in the paragraph or sub-paragraph in question specifying him.
(2) Notwithstanding the provisions of
section 5(1)
of the Act, a person may have in his possession any drug specified in Schedule 2, 3 or Part I of Schedule 4 for administration for medical, dental or veterinary purposes in accordance with the directions of a practitioner, except that this paragraph shall not have effect in the case of a person to whom the drug has been supplied by or on the prescription of a doctor if -
(a) that person was then being supplied with any controlled drug by or on the prescription of another doctor and failed to disclose that fact to the first mentioned doctor before the supply by him or on his prescription; or
(b) that or any other person on his behalf made a declaration or statement, which was false in any particular, for the purpose of obtaining the supply or prescription.
…..
Cultivation under licence of cannabis plant
12.
Where any person is authorised by a licence of the Secretary of State issued under this regulation and for the time being in force to cultivate plants of the genus Cannabis, it shall not by virtue of
section 6
of the Act be unlawful for that person to cultivate any such plant in accordance with the terms of the licence and in compliance with any conditions attached to the licence.
Approval of premises for cannabis smoking for research purposes
13.
Section 8 of the Act (which makes it an offence for the occupier of premises to permit certain activities there) shall not have effect in relation to the smoking of cannabis or cannabis resin for the purposes of research on any premises for the time being approved for the purpose under this regulation by the Secretary of State.”
12.
In a reply in 1999 to a report dated 4
th
November 1998 of the House of Lords Select Committee on Science and Technology “Cannabis, the Scientific and Medical Evidence” (9th Report, 1997-98, HL Paper 151, Session 1997-98), the government said that it would welcome clinical trials into the therapeutic uses of cannabis, and was willing to license medical research and trials involving cannabis or the cannabinoids. The reply is printed as appendix 2 to a report of the Select Committee dated 4
th
March 1999 (2
nd
Report 1999). In a further report dated 14
th
March 2001 (2
nd
Report 2001), the Select Committee recorded the approval of Medical Research Council (“MRC”) awards for two clinical trials, one a three-year study to assess the efficacy of cannabis extract and THC in the treatment of spasticity in sufferers from multiple sclerosis, the other a two-year study to assess their efficacy as post-operative analgesics. The MRC at the same time awarded over £600,000 to fund basic cannabinoid research. To date the licences granted and trials undertaken in relation to sufferers from MS and certain other types of pain have not led to any decision on the question whether or to what extent it might be appropriate to reschedule cannabis or any related product so as to permit any form of medicinal use, by moving it out of schedule 1 into another schedule of the Regulations and by other changes to the legislative scheme.
13.
The background to the domestic legislative position outlined above consists in three United Nations Conventions on international co-operation, described in Chapter 1 of the Runciman Report. The first, the Single Convention on Narcotic Drugs 1961, was itself a consolidating measure, and is subject to a protocol added in 1972. The second and third date from respectively 1971 and 1988. The 1961 Convention entitles party states to adopt “special measures of control” and to ban such drugs altogether “except for amounts which may be necessary for medical and scientific research only, including clinical trials …..” (article 2.5). The controls include limitations on manufacture, production, cultivation, importation and possession as well as requirement of labelling, keeping records, prescribing and safe custody. Activities contrary to the Convention were to be “punishable offences when committed intentionally” (article 36). Schedule IV to the 1961 Convention lists cannabis and cannabis resin among such drugs.
14.
The second convention, the Convention on Psychotropic Drugs 1971, lists substances whose use is to be prohibited by party states “except for scientific and very limited medical purposes by duly authorised persons, in medical or scientific establishments which are directly under the control of their Governments or specifically approved by them” (article 7(a)). The list includes cannabinol (except dronabinol). The very restrictive wording of this Convention prevents states from permitting the listed drugs to be made available on prescription.
15.
Under both the 1961 and the 1971 Conventions, any obligation to create punishable offences is subject to each state’s “constitutional limitations”. However, paragraph 8 of Chapter 1 of the Runciman Report indicates that, according to United Nations commentaries, the intention of these Conventions may not have been to cover activities of possession, purchase and cultivation when undertaken for personal use. The Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 (The Vienna Convention) supplements and strengthens the international scheme in this respect. Inter alia, it requires breaches of the conventions to be made criminal offences, and it requires that each party state establish as a criminal offence the possession, purchase or cultivation of illicit drugs for personal consumption. But it draws a distinction between the nature and severity of the sanctions which should follow from trafficking and from offences related to personal consumption. Sanctions are mandatory in the case of trafficking, but are “subject to [a state’s] constitutional principles and the basic concepts of its legal system” in the case of possession, purchase and cultivation for personal use.
16.
Prior to the enactment of the
Medicines Act 1968
(enacted following the thalidomide tragedy), there was limited control of only some medicines regarded as dangerous. In previous centuries cannabis and its derivatives were the subject of (largely undocumented) use in a medicinal context, but this appears to have died away by the earlier part of the last century with the advent of new and synthetic drugs. During the 1980s and 1990s there was renewed interest in the potential medical uses of cannabis and its derivatives. The Select Committee’s report of 4
th
November 1998, to which we have referred, examined the position in some detail. It recorded that “Use of cannabis for medical purposes is sometimes connived at by the medical professions”. It set out statements by, for example, MS sufferers as to its benefit as well as medical evidence which the Committee heard attesting to its analgesic property (chapter 5). In paragraph 5.10 the report referred to some evidence attested to by doctors that cannabis could be of benefit in relation to neuropathic pain, such as the phantom limb pain experienced by as many as 30% of amputees, for which there was no other satisfactory treatment.
17.
As to the potential risks of use of cannabis, the Committee observed that “Although cannabis is not in the premier league of dangerous substances, new research tends to suggest that it may be more hazardous to health than might have been thought only a few years ago” (paragraph 4.1). The report examined both the acute (short-term) effects (paragraphs 4.3-4.10) and its chronic (long-term) toxicity (paragraphs 4.13-4.24). It said that the former include slight impairment of psychomotor and cognitive function, important for example for those driving a car or operating a machine, and delusions and hallucinations capable of being misdiagnosed as schizophrenic illness, and that cannabis may also exacerbate the symptoms of those suffering from schizophrenic illness. The Committee concluded that “These relatively rare psychological effects of cannabis are not considered to represent a serious limitation on the potential medical use of the drug …., save that patients suffering from schizophrenic illness or other psychoses should be excluded. However, they do constitute an issue for public health. According to the Department of Health, cannabis contributes to the extra cost of acute psychiatric services imposed by drug misuse, although this cannot be separately costed .…”. With regard to chronic toxicity, the Committee said that “Cannabis can have untoward long-term effect on cognitive performance, i.e. the performance of the brain, particularly in heavy users”. The Committee also identified the consequences of smoking cannabis as the most important long-term risk associated with cannabis use, pointing out that cannabis smoke contains all the toxic chemicals present in tobacco smoke, with greater concentrations of carcinogenic benzanthracenes and benzpyrenes, and that regular cannabis smokers suffer from an increased incidence of respiratory disorders, including cough, bronchitis and asthma (paragraphs 4.17 and 4-18). The Committee examined the use of two cannabinoids, legally used as medicines in the United Kingdom. Nabilone is licensed and available on prescription, but little used since the development of other more powerful anti-nausea drugs in the 1980s. However, Dr Notcutt told the Committee of his use of nabilone for intractable pain, giving as many as 50% of the patients some pain relief, but involving for a significant number of patients unpleasant side effects (unpleasant psychoactive effects and drowsiness) and an overall success rate of about 30%. Dronabinol is not licensed in the United Kingdom, but is available for prescription on a named-patient basis, since it was moved to schedule 2 (paragraph 10 above). It has been licensed by the US Food and Drug Administration for the treatment of anorexia associated with AIDs, on the basis of clinical trials showing reduction of nausea, prevention of further weight loss and improved patient’s mood. This was described by one medical witness to the Committee as “the most compelling indication” for cannabis-based medicine.
18.
The Committee’s recommendations on the medical use of cannabis started by recognising “that, in all the evidence we have received, there is not enough rigorous scientific evidence to prove conclusively that cannabis itself has, or indeed has not, medical value of any sort” (paragraph 8.1). However, the Committee went on to say that they had “received enough anecdotal evidence …. to convince us that cannabis almost certainly does have genuine medical applications, especially in treating the painful muscular spasms and other symptoms of MS and in the control of other forms of pain” (paragraph 8.2). The Committee therefore recommended “that clinical trials of cannabis for the treatment of MS and chronic pain be mounted as a matter of urgency” (paragraph 8.3). It added that, recognising the dangers of smoking, it did not envisage smoking being used to administer any medicine ultimately licensed, and for that reason recommended research into alternative modes of administration.
19.
With regard to the Government’s repeated statements that, if sufficient evidence in favour of cannabis as a medicine were produced for the Medicines Control Agency (“MCA”) to be prepared to licence it, the government would amend the Misuse of Drugs Regulations to permit it to be prescribed, the Committee considered that “The problem with this policy is that it will take several years at least for this to happen” and “In the meantime 85,000 people in this country will continue to suffer the very unpleasant symptoms of MS” (paragraph 8.5).
20.
In the upshot the Committee recommended that the Government should at once take steps to transfer cannabis and cannabis resin from Schedule 1 to Schedule 2 of the Misuse of Drugs Regulations, so as to allow doctors to prescribe an appropriate preparation of cannabis, albeit as an unlicensed medicine and on a named-patient basis, and to allow doctors and pharmacists to supply the drug prescribed, with the incidental effect that research without a special licence would also be possible. The Committee said that its principal reason for this recommendation was compassionate, in that illegal medical use of cannabis was quite widespread, yet it exposed patients and in some cases their carers to the distress of criminal proceedings, with the possibility of serious penalties (paragraph 8.11). A secondary reason was the Committee’s view that the law appeared to be being enforced inconsistently, and in some cases with a very light hand, bringing Parliament, the Committee thought, into disrepute. A further subsidiary reason was the encouragement of research. The Committee also recommended transferring the cannabinoids remaining in Schedule 1 to Schedule 2, although it did not regard this as a priority because it was not convinced that they had a convincing medical use, and it recognised that the 1971 Convention meant that international agreement would be required (paragraph 8.10 of the report and paragraph 14 above).
21.
The government’s response to the Committee’s report was an immediate rejection of the Committee’s recommendation regarding cannabis and cannabis resin, In its explanation in the written reply referred to in paragraph 12 above, the Government referred to the “well-established procedure which prospective medicines have to go through in order to ensure their safety, quality and efficacy” and its view that “it would not be proper to allow cannabis to be prescribed by doctors before those characteristics have been scientifically established”, a position which “the report admits …. has not been reached”. The Government said that it “has very great sympathy for those whose conditions are not helped by existing medicine. But it sees no case for setting aside the controls which exist to protect the public and allowing doctors to prescribe, even on a named patient basis, raw cannabis with unknown standards of safety, quality and efficacy”. It also expressed itself as “mindful of the implications for the totality of the controls on cannabis of allowing the prescription of raw cannabis before a medicinal form has been developed”. As to cannabinoids, it said that, if it became clear that any cannabinoid other than dronabinol had therapeutic potential, it would seek amendment of the 1971 Convention to permit it to be placed in Schedule 2 of the Misuse of Drugs Regulations.
22.
The Select Committee in its report in reply dated 4
th
March 1999 said that the Government’s main arguments had been considered in its original report and that it continued to find them unpersuasive, when cannabis was known to be safe in terms of acute toxicity, but using it presented risks from which its current users for medical purposes were unprotected.
23.
The Runciman Report in 2000 contained a further comprehensive review of the position and arguments relating to therapeutic use of cannabis. It recommended the transfer of cannabis, cannabis resin, and cannabinol and all its derivatives to Class C in
the 1971 Act
(a transfer which has since taken place – cf paragraph 7 above), as well as (in common with the Select Committee) a transfer of cannabis and cannabis resin from Schedule 1 to Schedule 2 of the Misuse of Drugs Regulations. The Report’s overview reads:
“We have also considered the issue of the therapeutic use of cannabis. We are in no doubt that the therapeutic benefits of cannabis use by people with certain serious illnesses outweigh any potential harm to themselves or to others. We have nothing to add to the detail of the report of the House of Lords Select Committee on Science and Technology. We are particularly surprised that one of the grounds for the Government’s summary rejection of its recommendations should be anxiety about the capacity of GPs to withstand pressure for the prescription of cannabis when they have always been able to prescribe heroin for pain without any apparent problem. We do not consider that the relevant International Convention prevents the transfer of cannabis and cannabis resin from Schedule 1 to 2 of the Regulations, thereby allowing its prescription. We recognise that until the current research programme produces a cannabis plant with a standard dose of THC, the main psychoactive ingredient, rules will need to be devised to govern what is to be provided under prescription, and by whom. We do not see that as an insurmountable problem. In the interim, we have recommended a specific defence in the law in the event that a person is charged with possessing, cultivating or supplying cannabis for the relief of certain medical conditions.”
In relation to this defence, the Runciman Report recommended that the burden of proof should rest upon the accused. This would, it suggested, meet this country’s international obligations and enable spurious defences to be rejected.
24.
The House of Lords Select Committee returned to the topic in its report dated 14
th
March 2001. Standing by its original report, it welcomed what it saw as “a more encouraging [governmental] attitude towards the licensing of therapeutic preparations of cannabis”, if its quality, safety and efficacy were established. It considered that the treatment of therapeutic users by prosecutors and in court by juries was inconsistent (paragraph 14), that the acquittal by some juries of cannabis users brought the law into disrepute, and that it was undesirable to prosecute genuine therapeutic users who grow or possess cannabis for their own use (paragraph 18). It expressed concern about what it regarded as an “overly cautious stance” on the part of the MCA, which it considered placed “the requirements of safety and the needs of patients in an unacceptable balance” (paragraphs 29 and 27).
25.
The government in a response published in December 2001 emphasised that “the development and peer-review of high-quality clinical trials are processes which cannot be rushed, irrespective of the need, otherwise there is the danger that an inadequate trial design would result in a flawed clinical study”, and it defended both its record in granting research licences and the MCA’s record in relation to product licences. With regard to prosecutions, it observed that their number was small, that every case depended on its circumstances, and that inevitably there would be cases where a false or unsubstantiated claim of a therapeutic need would be made. It went on:
“It is also important to remember that at each stage of the prosecution process, from the initial contact with the Police through to consideration by the courts, the scope for the exercise of discretion exists. While the law can make no distinction on the criminality of the possession of cannabis for recreational or therapeutic reasons, while the efficacy and safety of the latter remain unproved, the Government believes that the criminal justice system does allow for a sympathetic approach to the genuine therapeutic user.”
26.
In March 2002 the Report of the Advisory Council on the Misuse of Drugs recommended the reclassification as a Class C drug, effected as from 29
th
January 2004 as referred to in paragraph 7 above, on the basis that cannabis was “less harmful” than other substances within Class B, while stating explicitly that “Cannabis is not a harmless substance and its use unquestionably risks harm to individual health and to society”. The chairman’s covering letter underlined this, adding that “the Council is anxious that the dangers associated with the use of cannabis preparations are widely known”.
The parties’ cases
27.
The hearing of the five appeals started in October 2004 and was adjourned, in circumstances mentioned below, to February 2005. The appellants’ representation at both stages was as follows: Mr Quayle and Mr Wales were represented by Mr Edward Fitzgerald QC (leading Mr Mytton and Mr Cooper respectively); Mr Taylor was represented by Mr Menon, Ms Lee by Mr Eissa and Mr Kenny by Miss Hodson. The Attorney General’s Reference came before us for the first time in February 2005, when the Attorney General was represented by Mr Jonathan Rees and Mr Ditchfield by Mr Sutton.
28.
When the appeals first came on before us in October 2004, differences existed in the attitudes of both the Crown and the appellants in the various appeals. We observed that, while it was open to any appellant to argue whatever points seemed good to him or her, the Crown’s attitude on general points of this importance ought to be consistent. We asked whether the matter had received attention at the highest level. It emerged after an adjournment that it had not been considered by the Crown Prosecution Service’s Director of Policy, still less by the Attorney General. We were told that it was now desired to refer it to him, and that this would require a significant adjournment. We granted such an adjournment and further made clear that on the resumed hearing we wished to have a detailed exposition of and argument on the statutory scheme relating to control of drugs, which had not at that stage been put before us. When the appeals came back before us in February 2005, the Crown was represented in the cases of
Quayle, Wales, Taylor, Lee
and
Kenny
by fresh leading counsel, Mr Chawla QC, who had not been instructed in October 2004 and who served revised skeleton arguments, including one on the legislative scheme. Mr Chawla led Mr McGonigal in the appeals of
Quayle
,
Wales
and
Kenny
and Miss Hall in the appeals of
Taylor
and
Lee
. On behalf of the Attorney General in
Ditchfield
,
Mr Rees, presented submissions supplementing and in some respects expanding those of Mr Chawla although not inconsistent with them.
29.
We have when summarising the facts in paragraphs 2 to 6 identified the general nature of the issues raised in each case. To recapitulate, the primary case advanced on behalf of Messrs Quayle, Wales and Kenny is that their cultivation or preparation (and use and possession) of cannabis were all excusable in law since they genuinely and reasonably believed that these activities were necessary to avoid them suffering serious injury or pain, and that the charges against them should have been left to the jury on that basis; alternatively, that, if such activities were only excusable in law if necessary to avoid serious injury (as distinct from pain), the judge should also have left the jury to consider the charges on that basis. In this context, Mr Fitzgerald submits that, on the evidence, it was open to the jury to conclude that pain may involve or lead to psychological injury and/or that the alternative analgesic drugs may themselves cause “serious injury”. In the case of
Wales
the judge is further criticised for his direction that the defence of necessity could only be available if the defendant believed that he would (i) imminently and (ii) inevitably suffer serious injury.
30.
In the cases of Messrs Taylor and Lee, the contention is that the judge’s ruling in each case wrongly prevented the jury considering a defence of necessity, to the effect that they acted as they did in the interests of others towards whom they reasonably regarded themselves as responsible and who they genuinely and reasonably feared would suffer serious pain and/or (if required) serious injury if they did not receive the cannabis being imported or supplied. The successful defence of Mr Ditchfield was to that effect.
31.
The appellants and Mr Ditchfield remind us that a trial judge must never usurp the role of the jury. This principle was recently underlined in
Wang
[2005] UKHL 9
. Not even in exceptional circumstances can or should a trial judge direct a jury that they must convict. There is no distinction in this respect between offences where the burden would lie solely on the Crown and those where the defence bears a burden. (Here, it was common ground that the burden of disproving any potentially available defence of necessity would rest on the Crown, since it was not suggested that we could, and we see no basis on which we could, at common law introduce a reverse burden along the lines which the Runciman Committee recommended should be enacted - see paragraph 23 above). However, it remains the law that, if an issue is suggested on which there is in truth
no
evidence which the jury can be asked to consider, a trial judge is not obliged to address the jury on that issue or to leave it to the jury to consider: see per Lord Bingham at paragraph 14 in
Wang
. Likewise, if an issue is suggested based on proposed evidence which cannot possibly constitute any defence in law, a trial judge is entitled to rule that he will not leave any such issue to the jury. These propositions were not challenged before us.
32.
The appellants and Mr Ditchfield buttress their submissions by a contention that, if the law does not provide potential defences in the terms which the appellants submit should have been (and which were in the case of
Ditchfield
) left to the jury, this country would be in breach of the European Convention on Human Rights. No declaration of incompatibility is sought. No notice has at any stage been given to the Crown under
s.5 of the Human Rights Act 1998
of any claim to any such declaration. Mr Fitzgerald stands on his submission that this was and is unnecessary since (he submits) the court is obliged, if the legislative scheme would otherwise be inconsistent, to interpret or expand the common law defence of necessity to prevent or remove any such inconsistency.
33.
The Crown’s case before us operates at two levels. At a detailed level, Mr Chawla’s submits that, whatever view might be taken regarding the avoidance of serious pain, the cases of
Quayle
,
Wales
and
Kenny
lack at least one fundamental and essential ingredient, namely that the allegedly causative feature of the commission of the offence must be extraneous to the defendant; while the cases of
Taylor
and
Lee
concern persons who could not in reality be regarded as anything other than volunteers, operating maybe for reasons of altruism but also in the context of a commercial enterprise and not in any circumstances where they could reasonably be said to have a responsibility towards those for whose benefit they say they were acting. The Attorney General pursues the further submission that the defence of necessity does not embrace the avoidance of serious pain, and should not be extended (in this context at least) to do so.
34.
Both Mr Chawla and the Attorney General also address the issues before the court at a more basic level which focuses on the nature of the statutory scheme and the effect of the contentions pursued by the appellants and Mr Ditchfield. In their submission, the appellants’ and Mr Ditchfield’s cases involve the proposition that a defence of necessity is available in respect of the medicinal use of cannabis, when Parliament has clearly and precisely regulated the medicinal use of drugs in a way which does not presently embrace cannabis. Mr Chawla does not submit that Parliament has impliedly abrogated the defence of necessity in all circumstances relating to the cultivation, possession, use or supply of cannabis, but he submits that there are strong public policy grounds for not treating it as covering the present conduct involving allegedly medicinal use or purposes.
The common law authorities
35.
The most basic defence in this area of the law is duress by human threats. The defence is potentially available where, through fear of wrongful violence or threats by another, a person’s will is so overborne that he or she, reasonably and proportionately, acts in a way which would otherwise be unlawful in order to avoid a perceived risk of death or serious injury induced by such fear. The defence was recently considered by the House of Lords in
Hasan
[2005] UKHL 22
. Lord Bingham said in
Hasan
that “the only criminal defences which have any close affinity with duress are necessity, where the force or compulsion is exerted not by human threats but by extraneous circumstances, and, perhaps, marital coercion under
s. 47 of the Criminal Justice Act 1925
”. Necessity by circumstances is the defence relied on in the present appeals and reference.
36.
In
Hasan
Lord Bingham said that it was “unsurprising” that the law in England and elsewhere “should have been developed so as to confine the defence of duress within narrowly defined limits”. In this respect, we note in passing that he was also echoing a thought expressed in an early case by Lord Denning MR, who said that the doctrine “must be carefully circumscribed. Else necessity would open the door to many excuses”, and by Edmund Davies LJ (
Southwark L.B.C. v. Williams
[1971] Ch. 734
, 743H and 744H). Lord Bingham went on to identify certain features of duress, namely that it operates as a complete defence excusing what would otherwise be criminal conduct in relation to an innocent victim, that the onus is on the Crown to disprove duress and that, citing Prof. Sir John Smith QC, “duress is a unique defence in that it is so much more likely than any other to depend on assertions which are peculiarly difficult for the prosecution to investigate or subsequently to disprove”. Later, Lord Bingham said that these features “incline me, where policy choices have to be made, towards tightening rather than relaxing the conditions to be met before duress may be successfully relied on”; and cited words of Dickson J in
Perka v. The Queen
[1984] 2 SCR 232
, 250:
“If the defence of necessity is to form a valid and consistent part of our criminal law it must, as has been universally recognised, be strictly and scrupulously limited to situations which correspond to its underlying rationale”.
37.
Lord Bingham also pointed out that “If it appears at trial that a defendant acted in response to a degree of coercion but in circumstances where the strict requirements of duress were not satisfied, it is always open to the judge to adjust his sentence to reflect his assessment of the defendant’s true culpability”. This point was made in the context of the defence of duress by threats, but may be compared with other earlier judicial statements in
Howe
[1987] AC 417
, 433, per Lord Hailsham (in a similar vein in the context of murder), in
Pommell
[1995] 2 CAR 607, 613-4, per Kennedy LJ (in an opposite sense in a case where it was arguable that the defendant was fulfilling the underlying legislative policy) and in
In re A
[2001] Fam 147, 234, per Brooke LJ. At its lowest, in our view, the point made by Lord Bingham points to a need to consider the appropriateness of recognising any suggested defence of necessity in the context in which it is raised.
38.
The most important limitations of duress identified by Lord Bingham were these: (1) duress does not, despite the logic of the opposite argument, afford a defence to murder, attempted murder and, perhaps, some forms of treason; (2) the threat relied on must be to cause death or serious injury; (3) the threat must be directed against the defendant or his immediate family or someone close to him – in this regard, although the point was not in issue in
Hasan
, it appeared to Lord Bingham that the Judicial Studies Board’s specimen direction was “if strictly applied, …. consistent with the rationale of the defence exception” in suggesting “that the threat must be directed, if not to the defendant or a member of his immediate family, to a person for whose safety the defendant would reasonably regard himself as responsible"; (4) the relevant tests have been stated largely objectively – thus for example the threat must induce a belief in its efficacy that is reasonable as well as genuine (paragraph 23); (5) the defence is available only where the criminal conduct which it is sought to excuse has been directly caused by the threats relied upon; (6) there must have been no evasive action the defendant could reasonably have been expected to take – an “important limitation” which Lord Bingham considered to have been unduly weakened in recent years, in particular by the decisions in
Hudson and Taylor
[1971] 2 AB 202) and, so far as it purported to follow
Hudson and Taylor
on this point,
Abdul-Hussain
(17 December 1998, [1999] Crim LR 570; and (7) the defendant must not voluntarily have laid himself open to the duress relied upon.
39.
In the context of point (6), Lord Bingham emphasised in paragraphs 27 and 28 “the requirement that execution of a threat must be reasonably believed to be imminent and immediate if it is to support a plea of duress”, saying that juries should be directed that “if the retribution threatened ….. is not such as [the defendant] 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 ….”
40.
Turning to the defence of necessity where the force or compulsion is exerted not by human threats but by extraneous circumstances, a convenient starting point is the decision in
Martin
[1988] 88 CAR 343. A husband, whilst disqualified, drove his son to work. His explanation was that his son had overslept and was at risk of losing his job if he arrived late, and that his wife had suicidal tendencies and had threatened to commit suicide if he did not do as he did. A court of appeal presided over by the Lord Chief Justice held that, however sceptically one might view that defence, it should have been left to the jury. Simon Brown J, giving the judgment, said:
“The principles may be summarised thus. First, English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this defence arises as duress, that is pressure upon 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 others. Arising thus it is conveniently called “duress of circumstances.”
Secondly, 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.
Thirdly, 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, impelled 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, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by action 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.
That the defence is available in cases of reckless driving is established by
Conway (supra)
itself and indeed by an earlier decision of the court in
Willer
(1986) 83 Cr.App.R. 225.
Conway
is authority also for the proposition that the scope of the defence is no wider for reckless driving than for other serious offences. As was pointed out in the in the judgment, (1988) 88 Cr.App.R. at 164, [19888] 3 All E.R. at 1029h: “reckless driving can kill.”
We see no material distinction between offences of reckless driving and driving whilst disqualified so far as the application of the scope of this defence is concerned. Equally we can see no distinction in principle between various threats of death: it matters not whether the risk of death is by murder or by suicide or, indeed, by accident. One can illustrate the matter by considering a disqualified driver driven by his wife, she suffering a heart attack in remote countryside and he needing instantly to get her to hospital.”
41.
In
Pommell
[1995] 2 CAR 607 the court was concerned with a defence to a charge to possession of a loaded shotgun found in bed with the defendant. The defendant said that he had during the night persuaded someone to give him the gun to prevent him shooting some other people who had killed a friend, and that he intended in the morning to give the gun to his brother to hand in to the police. It was held that this proposed defence should have been left to the jury. Kennedy LJ giving the judgment said that “The strength of the argument that a person ought to be permitted to breach the letter of the criminal law in order to prevent a greater evil befalling himself of others has long been recognised, …. but it has, in English law, not given rise to a recognised general defence of necessity, and in relation to the charge of murder, the defence has been specifically held not to exist”. However, he continued, “that does not really deal with the situation where someone commendably infringes a regulation in order to prevent another person from committing what everyone would regard as being a greater evil with a gun”. After referring to
Martin
, Kennedy LJ went on to agree with a commentary on
DPP v. Bell
(1992) RTR 335
in which Prof. Sir John Smith QC said that the defence was not limited to road traffic offences, but on the contrary “being closely related to the defence of duress by threats, appears to be general, applying to all crimes except murder, attempted murder and some forms of treason”.
42.
In
Abdul-Hussain
, Rose LJ giving the judgment of this court referred to
Pommell
in stating the first of eleven propositions, which was that “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”. But he went on, in seeking to summarise the legal position, to say as proposition 2 that “The courts have developed the doctrine on a case by case basis, notably during the last 30 years. Its scope remains imprecise”. He also observed as proposition 7 that
“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 4 above [that is so as to overbear his will]”.
This test is at the least suggestive of a situation which the judge and jury can assess on the basis of objectively ascertainable and available material.
43.
The Crown relies before us upon this court’s decision in
Rodger & Rose
[1998] 1 CAR 143. The facts there involved a break-out from Parkhurst Prison which the two defendants sought to excuse on the basis that the Home Secretary had increased their original tariffs and they had become suicidal. The prosecution was prepared to concede that the break-outs were because of contemplated suicide, which would have taken place had the break-outs not occurred. The court in a judgment given by Russell LJ held that no such defence was available. It distinguished all previous cases, including
Martin
,
Conway
and
Pommell
as having one factor not present in
Rodger & Rose
, namely that the feature causative of the defendant committing the offence was in all these cases
“extraneous to the offender himself. In contrast, in these appeals it was solely the suicidal tendencies, the thought processes and the emotions of the offenders themselves which operated as duress. That factor introduces an entirely subjective element not present in the authorities. ….. if these appeals were to succeed it would involve an extension of the law upon this topic as hitherto reflected in authority and would introduce an entirely subjective element divorced from any extraneous influence.
We do not consider that such a development of the law would be justified, nor do we think that such an extension would be in the public interest. If allowed it would amount to a licence to commit crime dependent on the personal characteristics and vulnerability of the offender. As a matter of policy that is undesirable and in our view it is not the law and should not be the law.”
44.
Rodger & Rose
does not mean that the defence of necessity of circumstances is never available in respect of prison-breach. As long ago as 1500, it was said in argument that a prisoner might justify an escape from a burning gaol which was necessary to save his life “for he is not to be hanged because he did not stay to be burnt” (cf
Southwark L.B.C. v. Williams
, 746B, per Edmund Davies LJ, citing Glanville Williams). On behalf of the appellants and Mr Ditchfield it is submitted that, in so far as it excluded suicide,
Rodger & Rose
can be regarded as a decision based purely on public policy considerations in the particular context of prison sentences. It is also submitted that it only relates to suicide by the defendant him- or herself, and attention is drawn to
Martin
as a case where a threat of suicide by a third party was regarded by this court as capable of giving rise to a potential defence of necessity. It is submitted that, at all events outside the content of prison-breach, there is no logical or satisfactory distinction between action necessary to avoid one’s own and someone else’s suicide.
45.
The appellants also rely on this court’s judgment in
Shayler
[2001] EWCA 1977; 1 WLR 2206 (CA); on appeal
[2003] 1 AC 247
(HL). In giving the Court of Appeal’s judgment, Lord Woolf CJ said that any definition of the precise limits of the defence of duress and necessity was fraught with difficulty, because its development had been closely related to the particular facts of the different cases which had come before the courts (paragraph 46). But he went on seek to identify the “core ingredients” by reference to inter alia
Martin
and
Abdul-Hussain
. Commenting on Brooke LJ’s distinction in
In re A
between cases of duress by threats or circumstances and cases of real choice (paragraph 52 below), Lord Woolf said: “None the less the distinction between duress of circumstances and necessity has, correctly, been by and large ignored or blurred by the courts”. However, he recognised that
In re F
was another case in which they were treated as different.
46.
A number of other points arise from Lord Woolf’s judgment in
Shayler
.
Abdul-Hussain
is cited as making clear that the harm threatened need not be immediate but should be imminent; however, that statement itself needs care in the light of Lord Bingham’s speech in
Hasan
. Second, the question as addressed whether the alleged harm that the defendant seeks to avoid has to involve a danger to life or of serious injury, or whether it can simply be harm greater than the act done which seeks to avoid such harm. Lord Woolf answered that question by citing Smith & Hogan’s statement (9
th
Ed. p. 247) that “There are some cases where what was in substance a defence of necessity was allowed without identifying a threat to life or serious injury”, coupled with reference to
Gillick
and
In re F.
He then said: “However, any extension of the defence here is slight: protection of the physical and mental well-being of a person from serious harm is still being required”. If this were read as a general acceptance in all circumstances of such harm as sufficient to justify a defence of necessity, it would seem open to question, particularly in the light of Lord Bingham’s approach in
Hasan
.
47.
Third, however, the court of appeal concluded that Mr Shayler did not have available to him any potential defence of necessity because
“it is inherent in the defence that it has ingredients which Mr Shayler is not in a position to establish. He cannot identify the action by some external agency which is going to create the imminent (if not immediate) threats to the life and limb of members of the general public as a result of the security service’s alleged abuses and blunders. That is a fundamental ingredient of the defence. Without it, it is impossible to test whether there was sufficient urgency to justify the otherwise unlawful intervention. It is also impossible to apply the proportionality test. Furthermore, if it is possible to identify the members of the public at risk this will only be by hindsight. This creates difficulty over the requirement of responsibility. Mr Shayler’s justification for what he did lacks the required degree of precision. There is no close nexus between his disclosure and the possible injury to members of the public. Putting it simply there was no necessity or duress as those words are ordinarily understood.”
The reference to a need for “action by some external agency” in our view reflects thinking similar to that in
Rodger & Rose
, although that case was not mentioned. The duress or necessity on which a defendant relies must be capable of objective assessment. According to this court’s decision in
Safi (Ali Ahmedi)
[2004] 1 CAR 12 (at p.157) (although this case was not, we note, commented upon in
Hasan
), a reasonable and well-founded belief in a threat or other danger may suffice. But, even assuming that that qualification is to be added, a requirement that the belief be “well-founded” imports a need for it to have been manifested externally and an ability to measure and assess it accordingly.
48.
The general reasoning in
Shayler
on the subject of necessity remains open to review in the light of the House of Lords’ treatment of the subject in the same case. Lord Bingham at p.266 A-B thought it “a little unfortunate” that the Court of Appeal had followed the judge and “ventured into this vexed and uncertain territory”, when Mr Shayler had raised no question of necessity or duress of circumstances before the judge. He said:
“I should not for my part be taken to accept all that the Court of Appeal said on these difficult topics, but in my opinion it is unnecessary to explore them in this case.”
Mr Shayler’s only defence was that he had acted in the public and national interest, and Lord Bingham did not think that it was “within measurable distance of affording him a defence of necessity or duress of circumstances”. However, nothing was said specifically casting doubt on the statements in the passage quoted in paragraph 47 above, in which we see much force.
49.
In
Philip David Lockwood
[2002] EWCA Crim 60
a court of appeal composed of Mitchell and Keith JJ was concerned with a renewed, non-counsel application for permission to appeal against a conviction on a charge of producing cannabis. The applicant’s only defence was necessity, founded upon his claim (not mentioned in his original interview) to have used the product of the plants medicinally to alleviate various painful symptoms both physical and mental. The applicant complained about inter alia the judge’s directions to the jury on that defence, which were to the effect that the prosecution had to satisfy the jury that necessity was not a possibility, and that they could only convict if they rejected what he had to say in evidence. The gist of the complaint is likely to have been directed at the next part of the direction, which included a direction to the jury to consider whether they were sure that he only relied on this defence after he had been told about it after his interview and it had not occurred to him beforehand, followed by a direction that “If you are sure that necessity played no part in this until after the interview, then he is guilty”. Be that as it may, Mitchell J in giving judgment said that in the court’s judgment the “directions were both clear and correct. Having correctly directed them on necessity, the issue was left to the jury in terms which could not have been made clearer”. This judgment was, when shown to HHJ Elgan Edwards DL in
Ditchfield
, decisive in causing him to change his mind and to leave the issue of necessity to the jury. In our view, that was to put too much weight on a slight foundation. The question whether it was appropriate to leave any issue of necessity to the jury at all was never argued or before the court in
Lockwood
.
50.
In
Brown
[2003] EWCA Crim 2637
this court (Kay LJ, Silber and Levesen JJ) was concerned with another renewed application (non-counsel, though the transcript refers to it being renewed orally which suggests that the applicant presented it in person) for permission to appeal, following a conviction for producing a Class B drug, cannabis, contrary to s.4(2)(a) of
the 1971 Act
. The proposed defence was necessity arising from chronic pain. At the start of the trial, the judge had been invited by counsel to rule whether, as a matter of law on the defendant’s own factual and medical evidence, there was any defence properly to be left to the jury; and, after his negative ruling, the defendant pleaded guilty and sought to appeal. Levesen J giving the judgment upholding the judge’s ruling, said:
“In this case the choice facing the applicant was not severe pain without cannabis or absence of pain with cannabis, rather it was absence of pain with adverse side effects without cannabis, and, on his account, absence of pain with minimal side effects with cannabis. The difference is restricted to the adverse side effects which, however unpleasant, could not sensibly be said to raise a prime facie possibility of serious injury, let alone one such as would overwhelm the will of the defendant.
Quite apart from this point, there has to be material from which a jury could come to a conclusion that they were not sure from an objective stand point that the applicant was not acting reasonably and proportionately. The evidence makes it clear that it was possible for the applicant to control pain by conventional and legal means. These arguments are sufficient to demonstrate that the learned judge was correct to conclude that the evidence, even at its highest, was not sufficient to raise a defence to be left to the jury.
Finally, the Crown argued that in order to provide prima facie evidence of a defence fit to be left to the jury there had to be material from which the jury could conclude that the causative feature of the applicant’s commission of the offence was, or may have been, extraneous to the applicant on the basis that the defence does not extend to include the subjective thought processes and emotions of the defendant: see R v Roger [1998] 1 Cr. App. R. 142, where the suicidal thoughts of a prisoner were judged to be no defence to the offence of breaking prison. Suicide or depression is an innate affliction, as are the side effects of pain relief using lawful medication.
As Sir Patrick Russell, giving the judgment of the Court made it clear in that case at page 145G:
“If [the defence] is allowed it could amount to a licence to commit crime dependent upon the personal characteristics and vulnerability of the offender. As a matter of policy that is undesirable and in our view it is not the law and should not be the law.”
In the event the learned judge ruled that the evidence was not sufficient to justify leaving the defence to the jury. We agree.”
51.
With regard to the references in the authorities to a need for a threat to life or of serious injury, the appellants submit that the avoidance of severe pain should be equated with the avoidance of serious injury, Mr Fitzgerald QC for Mr Quayle and Mr Wales invokes in this connection case-law concerning medical treatment and general considerations of principle. The case-law include
Bourne
[1939] 1 KB 687
,
Gillick v. West Norfolk and Wisbech Area H.A.
[1986] 1 AC 142
,
In re F
(Mental Patient: Sterilisation)
[1990] 2 AC 1
and
In re A
. In
Bourne
Macnaghten J directed the jury that the inclusion of the word “unlawfully”, in the statutory definition of the offence of procuring a miscarriage with intent, made it incumbent on the Crown to prove that the act was not “done in good faith for the purpose only of preserving the life of the mother”, and further that, in considering whether there was any clear line of distinction between danger to health and to life, the jury should take “a reasonable view” of the latter words. He was assisted in his interpretation by an express proviso in a parallel statute (the
Infant Life (Preservation) Act 1929)
dealing with the situation of children after birth. In
Gillick
the House held that doctors could in certain circumstances be justified in giving contraceptive advice and treatment to under 16 year olds without parental consent (even in exceptional cases those not yet sufficiently mature to give their own consent), where this was justified as necessary in the child’s best interests to avoid physical and/or mental suffering. In
In re F
the House held that doctors are, on the ground of necessity, entitled (and may even be under a duty to their patients) to act in the best interests of the lives, physical or mental health of adults unable to give consent to medical treatment, who would otherwise be deprived of the medical care to which they were entitled. In both
Gillick
and
In re F
the issue was whether doctors could act in the best interests of persons for whose treatment they were medically responsible, in circumstances where those persons could not decide for themselves. That is a very different situation from the present.
52.
In
Bourne
the issue could also be viewed as involving competing interests of the parent and an as yet unborn child. In
In re A
doctors owing duties to both conjoined twins faced the clinical dilemma that any chance of saving the life of the one (Jodie) over a longer period involved an operation which would positively invade the bodies of both and necessarily end the life of the other (Mary) at once. Brooke LJ’s comprehensive discussion described the “species of the genus of necessity which is caused by wrongful threats” in terms tending to equate it with “the newly identified defence of ‘duress of circumstances”, which he exemplified by reference to, inter alia,
Martin
. He distinguished both from “cases of pure necessity where the actor’s mind is not irresistibly overborne by external pressures” but “the claim is that his or her conduct was not harmful because on a choice between two evils the choice of avoiding the greater harm was justified” (pages 232C–236B). Brooke LJ treated this situation, at least, as one where the law might speak of conduct as justified (compare Lord Bingham’s statement in
Hasan
at paragraph 18 that, in the context of duress by threats, the law is concerned with no more than a potential excuse). Robert Walker LJ at p.253H-255E also found in the previous cases concerning duress of circumstances no real assistance or clear principle or analogy applicable to the situation of clinical dilemma faced by the doctors in
re A
. Recognising that, in the absence of parliamentary intervention, the law had to develop on a case by case basis, as indicated by Rose LJ in
Abdul-Hussain
, he concluded that, on the particular facts, where Mary was on the evidence bound to die soon in any event, the doctors’ fundamental duty to protect the life of Jodie justified the medical operation to separate the twins, despite its inevitably fatal effect for Mary. This reasoning in our view underlines the danger of Mr Fitzgerald’s approach in so far as that seeks to extract from cases from the very different area of medical intervention general principles to be applied across the whole area of duress by threats or necessity by circumstances.
53.
In the light of these authorities, we are not persuaded by Mr Fitzgerald’s attempts to derive from individual authorities in different areas a coherent over-arching principle applicable in all cases of necessity. Such an attempt appears to us to pay too little attention to the particular context of individual decisions, and not to correspond with the case by case approach suggested by the authorities. However, there is a recognised defence of duress by threats, to which it is clear that the defence of necessity by circumstances bears a close affinity. Save that, in the present cases at least, the offences in question are not readily seen as involving any individual victim, the arguments which Lord Bingham mentioned in
Hasan
in favour of a confined definition appear to us applicable to any defence of necessity by circumstances.
The legislative scheme
54.
In our view all the cases before us require to be addressed at a basic level at which we consider that a clear overall answer is to be found to all of them. This arises from the Crown’s submissions outlined in paragraph 34 above, as well as to the appellants’ acknowledgement that policy considerations may have played at least a background part in
Rodger & Rose
. The defence of necessity suggested by the appellants and Mr Ditchfield would, if it exists in law, enable individuals to undertake otherwise unlawful activities, without medical intervention or prescription, with a view to the use for medicinal purposes of cannabis either by themselves or by others for whom they say that they assumed responsibility as unqualified medical practitioners. The legislative scheme makes the most careful provision regarding the categorisation of drugs and the production, importation, possession, supply, prescription and use of such drugs for medical or other purposes. Its starting point is that the Secretary of State shall exercise his power to enable doctors (among other qualified professionals) to have, prescribe and supply controlled drugs (see s.7(3) of
the 1971 Act
and the consequential provisions of the
Misuse of Drugs Regulations 2001
dealing with importation set out in paragraph 11 above). But, under s.7(4), the Secretary of State may exclude the operation of s.7(3) in relation to a drug, if of the opinion that it is in the public interest that its production, supply and possession should be wholly or partly unlawful or unlawful except for purposes of research or other special purposes or except under a licence or other authority issued by him. Cannabis, cannabis resin and most cannabinoids are, under
SI 2001 No. 3998
and
SI 2001 No. 3997
, designated as drugs which may only be used for medical or scientific research and as drugs to which s.7(4) of
the 1971 Act
applies (paragraph 10 above). The effect of that designation is that, whatever benefits might be perceived or suggested for any individual patients, if these particular drugs were available for medical prescription and use (other than research), such individual benefits were and are in the legislator’s view outweighed by disbenefits of strength sufficient in the national interest to require a general prohibition.
55.
The House of Lords Select Committee and the Runciman Committee in their weighty reports expressed the view that the present legislative regime is inappropriately restrictive, and recommended its relaxation, on grounds summarised in paragraphs 18-20 and 22-24 above, so as to permit with immediate effect the prescription by doctors of cannabis and cannabis resin as an unlicensed medicine on a named-patient basis. Whether to make such a change was a matter for the Secretary of State and Parliament. Neither took up the recommendation for any immediate change in the law. The government in early 1999 issued an unequivocal rejection of any change which would, in its view, short-circuit “the well-established procedure which prospective medicines have to go through in order to ensure their safety, quality and efficacy”, and in December 2001 emphasised its view that “the development and peer-review of high-quality trials are processes which cannot be rushed” (paragraphs 21 and 25 above). The actual passage of time since the Select Committee and Runciman Reports will have reinforced the view of those who would have preferred to see those reports accepted and implemented. But the law remains unchanged, and it is the courts’ role to give effect to it. There is, we would add, no basis on which we can judge, nor have we been asked to judge, whether there is anything unreasonable about the length of time being taken to complete the trials of cannabis which have been in progress.
56.
The necessitous medical use on an individual basis which is at the root of the defences suggested by all the appellants and Mr Ditchfield is in conflict with the purpose and effect of the legislative scheme. First, no such use is permitted under the present legislation, even on doctor’s prescription, except in the context of the ongoing trials for medical research purposes. Secondly, the defences involve the proposition that it is lawful for unqualified individuals to prescribe cannabis to themselves as patients or to assume the role of unqualified doctors by obtaining it and prescribing and supplying it to other individual “patients”. This is contrary not only to the legislative scheme, but also to any recommendation for its change made by the Select Committee and Runciman Reports. Further, it would involve obvious risks for the integrity and the prospects of any coherent enforcement of the legislative scheme. A parallel but lawful market in the importation, cultivation, prescription, supply, possession and use of cannabis would have to come into existence, which would not only be subject to no medical safeguards or constraints, but the scope and legitimacy of which would in all likelihood be extremely difficult to ascertain or control. Mr Fitzgerald cited to us Lord Scarman’s ringing endorsement in
McLoughlin v. O’Brien
[1983] AC 410
, 430B-D of the courts’ role in developing, formulating and applying principle, ending with the words:
“By concentrating on principle the judges can keep the legal system clear of policy problems which neither they, nor the forensic process which it is their duty to operate, are equipped to resolve. If principle leads to results which are thought to be socially unacceptable, Parliament can legislate to draw a line or map out a new path.”
Accepting every word of that, we consider that in the present context it cuts in the opposite direction to that for which Mr Fitzgerald contends. Neither judges nor juries are well equipped to resolve issues as to when and how far the deliberate policy of clear legislation should give way in a particular case to countervailing individual hardship, or as to what the overall effect of such derogations would be on the whole legislative scheme.
57.
We are not concerned with the question whether a defence of duress by threats or of necessity by circumstances may ever be available in relation to offences under the drugs legislation, where the general scheme and policy of the legislation would not be in question. We have no doubt it may. To take an obvious example, if A forces B at gun-point to take into his possession cannabis or to smoke a cannabis joint, there would be no offence, and the defence of duress by threats is regularly suggested, though less regularly accepted by juries, in relation to charges of illegal importation of drugs. We will not either encourage or discount the possibility that there may be occasions when a defence of necessity might also run. A contrived but possible example mooted in argument concerned the patient on an island, in need of a further supply from a chemist of a particular drug licensed for prescription by a doctor to ensure his or her continued health, in circumstances where the only doctor capable of prescribing it had died or was storm-bound on the mainland. If (improbably) no prescription could be obtained in any way, might the chemist be justified in giving out a further supply without a prescription? But, whatever the answer to such an exceptional case, it has nothing to do with the situation before us. We are concerned with sufferers whose conduct contravenes the legislative policy and scheme on a continuing and regular basis, but who maintain nonetheless that this is excusable. Mr Fitzgerald submitted at one point that, in contrast to the evident ill which would (for example) result if prison-breach were held to be excusable (cf
Rodger & Rose
), any ill-effects of cannabis itself or of non-compliance with the statutory prohibitions could be seen as relatively minor compared with the risk of serious injury or pain to an individual defendant; and that it should be left to the jury in any particular case to weigh the potential ill-effects which might result (either generally or to the particular defendant) from such non-compliance against the potential benefits to the particular defendant; and that the jury should, on that basis, determine whether or not to enforce the statutory prohibition taking account of whatever degree of need a defendant might show impelled him or her to act as he or she did. The jury has a well-established power to return a verdict of not guilty, whatever the law and however clear it may be. But to require the judge to direct the jury that they should weigh in the balance the pros and cons of enforcing the clear policy of a statutory scheme in any particular case is, in our view, a different matter. It would involve a positive invitation to the jury to act contrary to the law and to take over the role of the legislative authorities.
58.
There have over recent years been cases in which a defence of medical necessity has been advanced and left to the jury in response to charges involving the cultivation, possession or use of cannabis. We were shown internet printouts of reports relating to six cases where the defence led to acquittals on charges of cultivation or possession for both personal use and supply to others. The first we were shown was in 1998. One of the acquittals was by a magistrate, the others by juries. No legislative step has been taken to remove or prevent any such defence. But we do not consider that the existence of a potential common law defence can be regarded as settled by such cases or as clear in any way which could mean that the policy and scheme of the legislation, or of the most recent statutory instruments, should be viewed as having been conceived, implemented or continued on the basis that such a defence would be potentially available.
The European Convention on Human Rights
59.
We come at this point to Mr Fitzgerald’s submission that, unless the common law recognises a defence of necessity by circumstances in situations such as those before us, this country would be in potential breach of the European Convention on Human Rights. So, Mr Fitzgerald submits, it is incumbent on the common law to interpret or expand the defence to cover such situations and prevent or remove any such inconsistency. The primary article relied on is article 8, protecting the private life of individual citizens. Mr Fitzgerald submits that the legislative scheme is unjustified and unsustainable, that sufferers from pain have waited long enough for it to be changed and that they are entitled to have a jury determine their guilt or innocence in that light.
60.
We find it difficult to see how this argument could, if it has any validity, be of direct application to anyone other than an immediate sufferer. The clients on whose behalf Mr Fitzgerald was presenting the argument (Mr Quayle and Mr Wales) were immediate sufferers. But we can see that, if the argument is valid in relation to immediate sufferers, third parties might, in some circumstances perhaps, be better placed to argue that the common law should recognise a defence of necessity based on their sense of responsibility for such sufferers and on such sufferers’ right to protection of their private life.
61.
Mr Fitzgerald relied on the decision of the President, Dame Elizabeth Butler-Sloss, in
Venables and Thompson v. News Group Newspapers Ltd.
[2001] Fam. 430
. The case involved the trial, albeit on written evidence, of applications for permanent injunctions to protect the claimants’ identities and whereabouts from disclosure in the press in exceptional, and well-known, circumstances. In order to preserve the claimants’ undoubted rights under articles 2, 3 and 8 of the Convention and taking the view that these prevailed in the circumstances over the press’s and public’s interest in freedom of information and expression, the President concluded that the common law of confidence could and should be extended so as to justify permanent injunctions against the whole world.
62.
Mr Fitzgerald also referred us to the reasoning of the Ontario Court of Appeal which in
Parker
(2000) 75 CRR (2d) 233 held under the Canadian Charter that an absolute prohibition on possession of cannabis without any medical exemption violated the accused’s right to liberty in a manner not according with principles of fundamental justice, and declared the prohibition illegal, while suspending the declaration for one year. The accused, Mr Parker, was held entitled to a constitutional exemption from the offence during the period of such suspension for the possession of cannabis for his medical needs. The possession charges against him arose from his cultivation of cannabis to control serious epileptic seizures to which he was prone after suffering severe head injuries while young. The evidence accepted by the trial judge and court of appeal was that he had no effective alternative to control his epilepsy. He had on at least one previous occasion successfully advanced a defence of necessity at common law (see the judgment of the court given by Rosenberg JA at paragraph 26). At one point Parker was apparently also contemplating such a defence to the instant charge, but he did not pursue it and “the only issue at trial was the constitutionality of the prohibition against possession or cultivation of cannabis when the accused claims that he or she requires it for medicinal purposes” (judgment, paragraph 17). The Court of Appeal found it impossible to read a relevant medical exemption into the Canadian legislation and struck down the offending prohibition accordingly (paragraph 198).
63.
The Ontario Court’s judgment contains a thorough and informative account of the history of the use and prohibition of cannabis, including reference to the House of Lords Select Committee Report of 1999 and a survey of the factual conclusions justified by the evidence given at Parker’s trial, which led the Trial judge to find that “The evidence at trial demonstrated that the side effects of marijuana use are almost trivial compared to the side effects of the conventional medicine Parker also uses” (paragraph 145).
64.
We are not in the same position as the President in
Venables
. We are not concerned, as she was, with balancing competing interests under the Convention and considering whether the common law could be extended to give effect to our conclusions. The first step in our view is to consider and ascertain the effect of the United Kingdom legislation. If the policy and scheme of United Kingdom legislation conflict with an interest protected under the Convention, and if such legislation cannot be “read down” or qualified, then extending a common law defence so as to prevent the conflict is a different exercise to any which the President undertook.
65.
We are also not the same position, evidentially or above all legally, as the Canadian courts. This is apart from obvious distinctions between the terms of, and the role and powers of the Canadian court under, the Canadian Charter compared with those of, and of the English court under, the
Human Rights Act 1998
incorporating the European Convention on Human Rights into United Kingdom law. In
Parker
there was evidence and a trial on the issue of incompatibility, which led to a declaration striking down an aspect of the Canadian legislation. The parallel, though less radical, procedure in the United Kingdom would involve a declaration of incompatibility under s.5. On Mr Fitzgerald’s argument, however, it would seem that the Canadian court should have started, by considering whether the common law defence of necessity (on which Mr Parker had originally contemplated relying) was or could be made available, because, if it could, then there would be no incompatibility.
66.
We have not had put directly before us under s.5 of
the 1998 Act
any issue as to the compatibility or otherwise of any aspect of the United Kingdom’s current drug legislation with the European Convention on Human Rights. We have not been put in a position procedurally in which we could determine any such issue. Nor has it been suggested that the legislation can be read down or qualified, so as to create an exception permitting self-prescription or prescription by persons other than doctors in cases of exceptional pain where cannabis offers the only or the best means of avoiding or alleviating the pain. The suggestion is that, whatever the legislative policy and scheme, we should interpret or extend the common law defence of necessity so as to avoid a suggested inconsistency with article 8.
67.
The legislative policy and scheme are clear. We have accepted that this does not mean that a common law defence of duress by threats or necessity by extraneous circumstances can never have a place (paragraph 57 above). But its role cannot be to legitimise conduct contrary to the clear legislative policy and scheme, as would in our view be the effect of the defences suggested in the appeals and reference before us for reasons given in paragraph 56 above. We see no basis in article 8 for altering our conclusions regarding the scope and the inapplicability of the common law defence of necessity by extraneous circumstances in the context of the present appeals and reference.
68.
We add only this with regard to the evidence before us. We have been shown a good deal of material, much of it summarised earlier in this judgment. The issues which would be involved in considering the compatibility with the Convention of the United Kingdom’s drug legislation if there is no relevant common law defence of necessity are not straightforward. Interference with the right to respect for private life is permissible under article 8(2) if “in accordance with the law and …. necessary in a democratic society ….. for the prevention of disorder or crime, for the protection of health or morals, or the protection of the rights and freedoms of others”. Within the limits indicated in
Taylor (Joseph) v. Lancashire County Council
[2005] EWCA Civ 284
, the court’s decision would involve an evaluation of the medical and scientific evidence, a weighing of the competing arguments for and against the immediate change recommended by the Select Committee and the Runciman Committee, a greater understanding of the nature and progress of the tests of cannabis which have taken and are taking place, and a recognition that, in certain matters of social, medical and legislative policy, the elected government of the day and Parliament are entitled to form overall policy views about what is best not just for particular individuals, but for the country as a whole, in relation to which the courts should be cautious before disagreeing.
69.
On the material before us, so far as it is appropriate for us to express any view, we would not feel justified in concluding that the present legislative policy and scheme conflict with the Convention. That is so, even if there is no common law defence of medical necessity such as that for which the appellants and Mr Ditchfield contend. We would not feel justified in concluding that either Parliament or the Secretary of State has acted inappropriately or delayed unduly in maintaining the present general policy and scheme up to the present date pending the outcome of and decisions on the basis of tests which are, we are told, still on-going.
70.
For these reasons, we do not consider that the submissions based on the European Convention on Human Rights assist the appellants and Mr Ditchfield in these appeals and reference.
The detailed requirements of any defence of necessity
71.
Apart from the general considerations addressed in paragraphs 54-58 above, there are also detailed requirements of any defence of necessity which are indicated by the common law authorities and which the present cases in our view lack.
72.
Extraneous circumstances.
Lord Bingham spoke in
Hasan
of the need for “a just and well-founded fear”, while accepting that threats of death or serious injury will suffice. He noted that the relevant requirements had been defined objectively, and went on (with the majority of the House) to apply the same approach when he decided that the defence was not available if the defendant ought reasonably to have foreseen the risk of coercion. It is by “the standards of honest and reasonable men” therefore that the existence or otherwise of such a fear or such threats falls to be decided. We have observed that Lord Bingham did not address or comment on the case of
Safi
, in which this court held that what matters is not whether there was actually a threat of torture, but whether there was a reasonable perception of such a threat. But that still involves an objective test based on external events, conduct or words about which evidence would have to be produced or given. It is also notable that Lord Bingham described the criminal defence which he thought had a close affinity with duress by threats as “necessity …. by extraneous circumstances”.
73.
There is therefore considerable authority pointing towards a need for extraneous circumstances capable of objective scrutiny by judge and jury and as such, it may be added, more likely to be capable of being checked and, where appropriate, met by other evidence. Lord Bingham’s dictum fits in this regard with dicta in
Abdul-Hussain
, the decision in
Rodger & Rose
and Lord Woolf’s dicta in
Shayler
speaking of a “fundamental ingredient” of “some external agency” as well as with the non-counsel decision in
Brown
.
74.
The appellants’ objection to any such distinction is that it means, for example, that the commission of an offence could be excused if it was to avoid the realisation of a danger of one’s wife committing suicide (cf
Martin
), but not if in that case it had been the wife herself who, realising that she would commit suicide unless she drove her son to school, had driven while disqualified (cf
Rodger & Rose
). Likewise, they suggest, the distinction could deny a defence of necessity to a person at risk of serious injury or perhaps pain, but allow it potentially to a parent or carer responsible for the well-being of such a person; and in circumstances like those in
Rodger & Rose
, a compassionate warder with responsibility for the prisoner, could release the prisoner, if he was able to detect the risk of suicide in time; while in cases such as the present, a person in or at risk of serious injury or pain could not himself engage in cultivation, possession or use of cannabis for medical purposes, but a parent or carer responsible for his upkeep could cultivate or obtain and administer cannabis to him or her for such purposes. The appellants suggest that none of these distinctions can stand scrutiny, so that
Rodger & Rose
must be regarded as a special case based on policy considerations.
75.
We accept that it is right to remember the context of the decision in
Rodger & Rose.
Any court was, we think, bound to recognise the incongruous penal results and the risk of abuse that would result from recognising a defence of necessitous escape from prison based on danger that the prisoner escaping would commit suicide if he remained in custody. But, on that basis, the suggestion that a prison officer in a situation like that in
Rodger & Rose
might legitimately free a prisoner is we think likely to run into problems at a more basic level of legislative policy, which in our view the cases before us also present (see paragraphs 54-58 above). Nevertheless, although the court in
Rodger & Rose
adverted to considerations of policy when it said that the suggested defence was undesirable, it did so not to justify a particular exception in this context to the defence, but in support of a generally expressed common law exception, based on the undesirability of introducing “an entirely subjective element divorced from any extraneous influence” into the defence. On the authorities (cf. paragraph 73 above), the requirement of an objectively ascertainable extraneous cause has a considerable, and in our view understandable, basis. It rests on the pragmatic consideration that the defence of necessity, which the Crown would carry the onus to disprove, must be confined within narrowly defined limits or it will become an opportunity for almost untriable and certainly peculiarly difficult issues, not to mention abusive defences. On that basis, we consider that the Crown’s first narrow point, namely that, for the defence of necessity of circumstances to be potentially available, there must be extraneous circumstances capable of objective scrutiny by judge and jury, is valid.
76.
Pain.
It is, however, submitted on behalf of Messrs. Quayle, Wales and Kenny that any such test is satisfied in all their cases both because of the objectively ascertainable facts giving rise to the pain they suffer actually, or would suffer if they were not to use cannabis, whether from their afflictions or from taking alternative lawful medicaments, and because pain is capable of some degree of objective scrutiny and is not wholly subjective. In addressing this submission, we do not gain any real assistance from cases from other areas of the law, where distinctions may or may not have been drawn between injury and harm or pain.
77.
The reason why we would not accept the submission is that the law has to draw a line at some point in the criteria which it accepts as sufficient to satisfy any defence of duress or necessity. Courts and juries have to work on evidence. If such defences were to be expanded in theory to cover every possible case in which it might be felt that it would be hard if the law treated the conduct in question as criminal, there would be likely to be arguments in considerable numbers of cases, where there was no clear objective basis by reference to which to test or determine such arguments. It is unlikely that this would lead overall to a more coherent result, or even necessarily to a more just disposition of any individual case. There is, on any view, a large element of subjectivity in the assessment of pain not directly associated with some current physical injury. The legal defences of duress by threats and necessity by circumstances should in our view be confined to cases where there is an imminent danger of physical injury. In reaching these conclusions, we recognise that hard cases can be postulated, but these, as Lord Bingham said, can and should commonly be capable of being dealt with in other ways. The nature of the sentences passed in the cases before us is consistent with this.
78.
It is also submitted that the present cases involve not merely pain, but a risk of serious physical or psychological injury as a result of pain, or as a result of the alternative medicines which would have to be taken if cannabis was not. We have in the case of
Quayle
already given our reasons for rejecting on the facts Mr Fitzgerald’s submission that there was any relevant risk of suicide in that case (paragraph 2(vi) above). In the case of
Wales
, the judge is criticised for failing to explain that serious pain could amount to serious injury because of its psychological consequences, but there does not appear to have been any evidence which could have justified such a case. Mr Wales did describe the pain he suffered as “life-threatening” and the judge reminded the jury of this, although it does not appear to have been Mr Wales’s case that there was an actual risk of suicide. His case on the facts was that cannabis helped him cope with the pain, without side effects, while the prescribed medicines had side-effects (stopping him eating) and, on the expert evidence that he called, also involved medical risks such as a general risk of peritonitis. We do not see in the evidence any basis on which a jury could be asked to conclude that Mr Wales faced any imminent risk of serious injury sufficient to justify him taking cannabis on a regular basis. Further, if there was such a case, it was left to the jury. Finally, in the case of
Kenny
, the evidence did not suggest any risk other than that of pain, and the criticism is that that risk should have been left to the jury.
79.
Imminence and immediacy.
We consider that these requirements represent another reason why, even at the detailed level, it is difficult to accept that there could be any successful defence of necessity in the cases of
Quayle, Wales
and
Kenny
. Their defences amount to saying that it is open to defendants on a continuous basis to plan for and justify breaches of the law. However, we need not express a view whether that would have alone justified a judge in refusing to leave their defences to a jury. The requirements of imminence and immediacy mean, in any event, in our view that the judge was right to refuse to leave any defence of necessity to the jury in
Taylor
and
Lee
, and that the defence should not have been left to the jury in
Ditchfield
. In each of these three cases, the defendant was taking a deliberately considered course of conduct over a substantial period of time, involving continuous or regular breaches of the law. In each case, the defendant was not the immediate sufferer and had every opportunity to reflect and to desist. The compassionate grounds which may well have motivated Mr Taylor and Ms Lee and which the jury evidently accepted did motivate Mr Ditchfield cannot avoid the fact that they deliberately chose to act contrary to the law on a continuous basis.
80.
We note in passing that the court in
Southwark L.B.C. v. Williams
refused to recognise a defence of necessity raised by squatters in answer to a claim to recover possession of properties owned by the council. The evidence was that there were no homes for the squatters, they had been living in “quite deplorable conditions” and the empty council properties in which they then squatted had been vandalised by the council to make them unfit for habitation, but that they had entered and lived there in an orderly way and repaired them after entry. Nevertheless, the court upheld summary possession orders, “for the sake of law and order”, as Lord Denning put it, and because the circumstances “do not … constitute the sort of emergency to which the plea [of necessity] applies”, as Edmund Davies LJ said. Megaw LJ agreed with both judgments on this aspect. The case is an old one, and the law has developed, so that we need not consider it further. But the underlying theme, that a continuous and deliberate course of otherwise unlawful self-help is unlikely to give rise to the defence has itself, in our view, continuing relevance.
81.
The point made in paragraphs 79-80 may also be viewed in another way. Where there is no imminent or immediate threat or peril, but only a general assertion of an internal motivation to engage in prohibited activities in order to prevent or alleviate pain, it is also difficult to identify any extraneous or objective factors by reference to which a jury could be expected to measure whether the motivation was such as to override the defendant’s will or to force him to act as he did. If the response is that the defendant was not forced, but chose to act as he did, then the considerations mentioned in the previous paragraph apply.
Conclusions
82.
It follows both from the general objection identified in paragraphs 54-58 and, independently, from the more detailed points addressed in paragraphs 71-81 read in each case with paragraphs 59-70 above, that none of the defendants in any of the cases before us was in our view able to rely at trial on any facts which could at common law give him or her any defence of necessity. The judicial rulings to that effect in the cases of
Quayle
,
Taylor
,
Lee
and
Kenny
were correct in the result, even though not in every case in their reasoning. The judges in
Wales
and in the
Attorney General’s Reference
in
Ditchfield
were wrong to leave the defence of necessity to the jury. In the case of
Wales
, the jury anyway convicted, but in the case of
Ditchfield
the jury acquitted. It follows that all the appeals will be dismissed, and the question of law on which this court’s opinion is sought by the Attorney General in the reference will be answered in the negative. | {"ConvCourtName": ["Luton Crown Court", "Bradford Crown Court"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["charged with being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a Class B controlled drug", "production of cannabis", "charged with the cultivation of cannabis", "producing the 16 cannabis plants and possessing"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["both defendants pleaded guilty", "Quayle thereupon pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["bailed"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["data not available"], "Sentence": ["Mr Taylor was sentenced to 18 months’ imprisonment for the first and 6 months consecutive for the second importation, making a total of two years imprisonment, suspended for two years, and was ordered to pay £7,500 costs.", "4 months’ imprisonment suspended for six months.", "Ms Lee was sentenced to 100 hours community service"], "SentServe": ["Mr Taylor was sentenced to 18 months’ imprisonment for the first and 6 months consecutive for the second importation, making a total of two years imprisonment, suspended for two years, and was ordered to pay £7,500 costs.", "consecutive"], "WhatAncillary": ["data not available"], "OffSex": ["he", "she"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["Lee, a former employee in a health shop run", "Tony’s Holistic Clinic"], "OffHomeOffence": ["loft", "Mr Wales’s home"], "OffMentalOffence": ["alcohol-related reasons together with depression", "depressed", "mental suffering", "thoughts of suicide"], "OffIntoxOffence": ["alcohol"], "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": ["search of his home", "stopped by Customs", "car was searched", "search of Mr Wales’s home"], "DefEvidTypeTrial": ["out of necessity", "Expert reports", "defence of medical necessity"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["extensive history of severe pain", "two children with attention deficit disorder", "bi-lateral below-knee amputee"], "VicImpactStatement": ["data not available"], "Appellant": ["Barry Quayle\n \n First Appellant", "Reay James Wales\n \n Second Appellant", "May Po Lee\n \n Fifth Appellant", "Anthony Taylor\n \n Fourth Appellant", "D (Attorney-General’s Reference)", "Graham Jack Kenny\n \n Third Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["five appeals against conviction"], "AppealGround": ["ground that the judge should have left the defence to the jury.", "now appeal on the ground that the judge’s ruling was in error, the evidence of alleged necessity should have been admitted and the matter left to the jury."], "SentGuideWhich": ["s.170(2) of the Customs and Excise Management Act 1979.", "s.6(1) of the Misuse of Drugs Act 1971.", "s.4(2)(a) of the Misuse of Drugs Act 1971"], "AppealOutcome": ["all the appeals will be dismissed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["wrong to leave the defence of necessity to the jury."]} | {"ConvCourtName": ["Luton Crown Court", "Bradford Crown Court"], "ConvictPleaDate": ["Don't know"], "ConvictOffence": ["producing the 16 cannabis plants and possessing", "charged with being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a Class B controlled drug", "production of cannabis", "charged with the cultivation of cannabis"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes", "Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know", "Unconditional Bail"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["data not available"], "Sentence": ["Mr Taylor was sentenced to 18 months’ imprisonment for the first and 6 months consecutive for the second importation, making a total of two years imprisonment, suspended for two years, and was ordered to pay £7,500 costs.", "Quayle", "Ms Lee was sentenced to 100 hours community service"], "SentServe": ["Consecutive", "Consecutive"], "WhatAncillary": ["data not available"], "OffSex": ["Mixed"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Employed", "Other"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Had mental health problems", "Had mental health problems"], "OffIntoxOffence": ["Yes-drinking"], "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": ["car was searched", "stopped by Customs", "search of Mr Wales’s home", "search of his home"], "DefEvidTypeTrial": ["Expert Evidence", "Offender reasons actions", "defence of medical necessity"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["extensive history of severe pain", "two children with attention deficit disorder", "bi-lateral below-knee amputee"], "VicImpactStatement": ["data not available"], "Appellant": ["Attorney General", "Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["five appeals against conviction"], "AppealGround": ["ground that the judge should have left the defence to the jury.", "now appeal on the ground that the judge’s ruling was in error, the evidence of alleged necessity should have been admitted and the matter left to the jury."], "SentGuideWhich": ["s.170(2) of the Customs and Excise Management Act 1979.", "s.4(2)(a) of the Misuse of Drugs Act 1971", "s.6(1) of the Misuse of Drugs Act 1971."], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["wrong to leave the defence of necessity to the jury."]} | 314 |
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2024] EWCA Crim 200
CASE NO: 2022 02543/02546 B1
Royal Courts of Justice
Strand
London
WC2A 2LL
Thursday 15 February 2024
Before:
LORD JUSTICE COULSON
MR JUSTICE HOLGATE
RECORDER OF REDBRIDGE
HER HONOUR JUDGE ROSA DEAN
REX
v
SOHILA TAMIZ
PEDRAM TAMIZ
__________
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 KIERAN VAUGHAN QC
appeared on behalf of the Applicants
_________
J U D G M E N T
LORD JUSTICE COULSON
:
Introduction
1.
The applicant Sohila Tamiz ("ST") is now 67. The applicant Pedram Tamiz ("PT"), her son, is now 47. On 19 July 2022, following a trial before Judge Lowe (the "trial judge") and a jury that lasted four-and-a-half weeks, they were convicted of a series of offences arising out of their harassment and unlawful eviction of their tenants, described in greater detail below. On 10 October 2022, ST was sentenced to 5 years imprisonment. PT was sentenced to 40 months' imprisonment.
2.
ST seeks permission to appeal against her conviction and has identified nine grounds of appeal. PT also seeks permission to appeal against conviction, relying on the same nine grounds. PT had also sought permission to appeal against his sentence. That was refused by the single judge and was abandoned a week ago.
3.
The applications for permission to appeal against conviction were considered in detail by the single judge, Julian Knowles J (“the single judge"). He explained in detail how and why the applications were unarguable, and he refused permission to appeal. These renewed applications to the full court make no allowance for, or reference to, that detailed analysis by the single judge. It is as if it had not happened. Depending on the outcome, therefore, these renewed applications give rise to the risk that this court will make loss of time orders in respect of both ST and PT, pursuant to the
Criminal Appeal Act 1968
and the
Prosecution of Offences Act 1985
.
The general nature of the offending
4.
ST and PT are the beneficial owners and managers of a property at 28 Athelstan Road, Margate. The property is divided into 26 flats. Prospective tenants were not required to give references or pay deposits. In consequence, they tended to be immigrants with limited English, or people on low wages or benefits, and others with alcohol, drug or other personal problems. They were all, in one way or another, vulnerable people, most of whom were reliant on the benefit system to pay their rent, although some of them had to find a “top-up” payment themselves in order to reach the full amount.
5.
ST and PT were convicted of a variety of offences arising out of their abusive behaviour towards the tenants. The two principal offences of which they were convicted were a conspiracy to interfere with the peace and comfort of a residential occupier, contrary to
s.1(2)
Criminal Law Act 1977
(the "harassment counts") and conspiracy to unlawfully evict the tenants, contrary to
s.1(2)
Criminal Law Act 1977
(the "unlawful eviction counts"). Other counts, where the tenants' property was taken and retained, included conspiracy to burgle. The evidence was that this behaviour took place over a lengthy period, from at least 2016-2022. We do not set out the individual counts on which ST and PT were convicted. It is more efficient to do that when we look at the individual grounds of appeal.
6.
Two other co-defendants, Adam McChesney and Kasem El Darrat, were also convicted of similar offences. They have not sought to appeal their convictions. McChesney acted as the enforcer for ST and PT and was involved in the intimidatory tactics against the tenants in many of the incidents that we shall relate. El Darrat also carried out similar but more limited actions on behalf of ST and PT.
7.
As we have indicated, the trial lasted four-and-a-half weeks. As the evidence unfolded, there were many common themes in the prosecution case: the repeated making of threats and demands of rent when no rent was due; threatening tenants that they would be unlawfully evicted; entering properties without permission of the tenants; demanding tenants to vacate their flats with no or next to no notice; removing fuses to prevent the supply of electricity as a prelude to eviction; taking the keys to a flat; removing and changing the locks; entering flats and destroying possessions inside or taking them away and unlawfully retaining them; and worst of all, the use of masked men to frighten the tenants and the use of physical violence against them.
8.
There was also some video evidence (in which, amongst other things, ST addressed the Bulgarian tenants as "scum") and text messages, in one of which McChesney responded to a tenant's indication that ST needed to follow the correct legal procedure for eviction by retorting: "She doesn't work like that".
9.
It was the defence case that the majority of the allegations against ST and PT were lies and inventions, and that if any of the tenants were told to leave their homes, or if anyone broke into their flats and assaulted them, or trashed their homes, or changed the locks whilst the tenants were still living there, none of that was anything to do with them.
10.
By their verdicts the jury generally rejected that defence. However, it is to be noted that, although she was convicted on fourteen counts, ST was acquitted on Counts 1 and 9. PT was convicted on seven counts, and he too was acquitted on Counts 1 and 9.
General Observations
11.
Despite the fact that there are nine separate grounds of appeal, they have a common theme: ST and PT complain that the judge refused to admit various elements of bad character evidence relating to the tenants and their friends and associates. The provisions relating to a non-defendant's bad character are set out in
s.100
Criminal Justice Act 2003
in the following terms:
"100 Non-defendant bad character
(1)
In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if—
(a)
it is important explanatory evidence
(b)
it has substantial probative value in relation to a matter which—
(i)
is a matter in issue in the proceedings, and
(ii)
is of substantial importance in the context of the case as a whole, or
(c)
all parties to the proceedings agree to the evidence being admissible.
(2)
For the purposes of sub
section (1
)(a) evidence is important explanatory evidence if—
(a)
without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
(b)
its value for understanding the case as a whole is substantial.
(3)
In assessing the probative value of evidence for the purposes of sub
section (1
)(b) the court must have regard to the following factors (and to any others it considers relevant)—
(a)
the nature and number of the events, or other things, to which the evidence relates;
(b)
when those events or things are alleged to have happened or existed;
(c)
where—
(i)
the evidence is evidence of a person’s misconduct, and
(ii)
it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct, the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct;
(d)
where—
(i)
the evidence is evidence of a person’s misconduct
(ii)
it is suggested that that person is also responsible for the misconduct charged, and
(iii)
the identity of the person responsible for the misconduct charged is disputed, the extent to which the evidence shows or tends to show that the same person was responsible each time.
(4)
Except where sub
section (1
)(c) applies, evidence of the bad character of a person other than the defendant must not be given without leave of the court."
12.
There are a number of well-known principles arising out of those provisions:
(a)
If the bad character is said to be relevant to an issue in the proceedings that evidence has to be of substantial probative value
and
to be of substantial importance in the context of the case as a whole: see, amongst others,
R v Braithwaite
[2010] EWCA Crim 1082
and
R v Phillips
[2011] EWCA Crim 2935
.
(b)
Where previous convictions are relied on for the purposes of credibility, the only relevant convictions will be those that directly showed that the non-defendant had a tendency to lie: see
R v Hanson
[2005] EWCA Crim 824
;
(2005) 2 Cr App R 21
, and
R v Brewster
[2011] 1 WLR 601
.
(c)
In
Brewster
at [20] and [21] this court drew a distinction between previous convictions which bear directly on the credibility of a witness (because they provide a reason for doubting the truth of the particular evidence the witness gives), and convictions which affect credibility only indirectly (because a person who would do something like that is not someone whose word can be trusted). The second type of conviction should not be admitted as bad character unless it would be reasonably capable of assisting a fair-minded jury to reach a view on whether a witness's evidence is worthy of belief. This distinction is designed to avoid unsubstantiated and irrelevant attacks on credit.
(d)
Where convictions are old and the offence is not particularly serious, permission to cross-examine about the offences is likely to be refused: see
R v Garman
[2008] EWCA Crim 266
and
R v Moody
[2019] EWCA Crim 1222
.
13.
It is also necessary to put the unsuccessful applications relating to the bad character of the tenants in this case into their proper context. Even without the particular elements of the evidence ruled out by the trial judge, ST and PT maintained attacks of one sort or another on the character and habits of just about every one of the prosecution witnesses. The trial judge permitted them considerable latitude in making those attacks. The particular matters which the trial judge excluded therefore need to be seen in that context. His rulings, rightly and repeatedly, referred to his concern about allowing too many satellite issues to distract the jury.
14.
Furthermore, it is also important to note that, in a separate ruling, evidence as to ST's own convictions and bad character was excluded by the trial judge. That was not because this evidence was not relevant (and of course such material was
prima facie
admissible because of the attacks that had been mounted on the prosecution witnesses) but because the trial judge concluded that to allow it in would run the risk of unfairly prejudicing the jury against ST. That was scrupulously fair. Again, therefore, the trial judge's particular rulings which are at the heart of the renewed applications must be seen in their proper context.
15.
We now propose to deal with each individual count and, where applicable, the ground of appeal said to arise in respect of it. Accordingly, in respect of each count we set out: (i) the nature of the offending; (ii) the evidence in support; (iii) the relevant grounds of appeal; (iv) the single judge's observations; (v) our own analysis. Because of the sheer volume of the points taken, this is a relatively long and laborious exercise, but the length of our judgment should not be taken as an indication of arguability: one bad point can be disposed of shortly, nine bad points inevitably take a little longer.
Count 2: Harassment, Jennifer Duffey, Flat 21 - ST and PT
16.
In 2016 the applicants demanded that Jennifer Duffey leave her home in their block against her will. PT obtained a bag of what looked to contain drugs and accused Ms Duffey of being the source of them. ST lost her temper with Ms Duffey. She barged into her flat accompanied by PT and other men to protect ST and to intimidate the tenant. Ms Duffey's friend, Deborah Paramore, was present and reminded ST about the law and procedure of eviction. ST angrily dismissed Ms Paramore and initiated a violent struggle with her. ST then had the locks removed while Ms Duffey was still living at the property, so that her and her partner's last night there was spent in insecurity and terror. Ms Duffey felt obliged to leave the next day and took only what she could carry. ST then changed the locks and disposed of Ms Duffey's remaining belongings.
17.
In support of Count 2, the prosecution relied on the evidence of Jennifer Duffey, Deborah Paramore and another friend, Martin Lawrence.
18.
There is no specific ground of appeal raised by either ST or PT in relation to Count 2. This is the first of six out of seven counts on which PT was convicted in respect of which there is no specific ground of appeal. It is, however, submitted that, if Grounds 8 and 9 of the proposed appeal are upheld then, because they are of general application, it is arguable that his conviction on Ground 2 is unsafe. Accordingly, we need say nothing further about Ground 2 at this stage.
Count 3: Unlawful Eviction, Julie Box-Beaumont and Stephen Dale, Flat 24 - ST only
19.
Julie Box-Beaumont and Stephen Dale were a couple in late middle age who between them had alcohol and gambling problems and quickly fell into rent arrears. In September 2017 the applicant ST sent men round to demand that they got out. ST had their electricity cut off. A man called Adam, working directly for ST, told them, "You are going to fucking leave because you are a pair of fucking cunts. I've taken the fuse out."
20.
One evening masked men acting for ST appeared at their door, took their keys, and told them, "You have ten fucking minutes to move". Ms Box-Beaumont and Mr Dale put as much of their possessions as they could into two carrier bags and walked out. They lost most of their belongings, including Mr Dale's most prized possession, his military medals, and the presents they had bought for their grandchildren for Christmas. They later discovered some of their possessions in local second-hand shops and were reduced to trying to buy back their own property.
21.
In support of these allegations the prosecution called Julie Box-Beaumont and Stephen Dale. There were also admissions that Mr Dale twice reported to the police the earlier threats made by Adam, as well as the actual illegal eviction. The defence was that Ms Box-Beaumont and Mr Dale had left the property voluntarily and ST had nothing to do with any individuals who may have attended their flat and may have caused them to leave.
22.
Ground 1 of the proposed appeal against conviction is that the trial judge erred in refusing to admit into evidence bad character evidence relating to Stephen Dale. Mr Dale had a previous conviction for possession of a bladed article dating from November 2015, about six months before the incident involving ST. The background to the offence and the type of article carried are not known, and the defence made no application for more information. Despite that, it was submitted on behalf of ST that this conviction was of substantial probative value to the issue of whether the masked men who broke into the flat might have been unconnected with the landlords, and may instead have been creditors in connection with Mr Dale's potential gambling debts. The trial judge ruled that the application fell a long way short of demonstrating that the conviction had substantial probative value on the issue of whether the masked men had motives other than assisting the landlord.
23.
The single judge was equally unimpressed, saying the previous conviction was not substantially probative of the motives of the masked men.
24.
That means that this is now the third time that the question has been judicially considered of whether Mr Dale's previous conviction was relevant to or of substantial probative value in respect of the motives of the masked men who threatened him and his partner inside their own home. The single judge had no doubt that it was not. We agree with him and will, we hope, be forgiven for using rather more trenchant terms in explaining why.
25.
It might be thought that the obvious motive of the masked men, based on what they actually said – ("You have ten fucking minutes to move") - was to evict Ms Box-Beaumont and Mr Dale. They asked for, and took, the keys to the flat, and ST did not subsequently deny receiving those keys back into her possession. Moreover, that the motive was illegal eviction was entirely consistent with the earlier evidence about the threats made by Adam (which were reported to and noted by the police), and the removal of the fuse to disconnect the electricity. By contrast, there was no evidence that the motive of the men was to enforce some sort of debt against Mr Dale, and such a proposition defies common sense: debt collectors do not usually make people homeless when trying to enforce a debt, legally or otherwise; they prefer to know where you live.
26.
On any view Mr Dale's conviction was wholly unrelated to any question as to the motive of the masked men. Assume that his conviction had been admitted into the evidence, how would that have assisted the jury in deciding that that meant that the masked men may have been nothing to do with the landlords? It would not have done. It had no probative value at all, much less substantial probative value.
27.
Moreover, we are entirely confident that the fact that Mr Dale had an unrelated conviction for possession of a bladed article would not have assisted the jury in deciding the principal issue they had to decide, namely whether they were sure that ST was connected with the illegal eviction. The prosecution are right to say that this is the first example of a theme running throughout this proposed appeal: applications, principally by ST, to admit irrelevant bad character evidence with the sole purpose of attacking a prosecution witness's personal credibility. As we have said,
s.100
is expressly designed to prevent that happening.
28.
For those reasons, we reject Ground 1 of the proposed appeal.
Counts 4 and 5: Harassment and Burglary, Hayley Griffiths and her sons, Flat 21 - ST only
29.
Hayley Griffiths lived in Flat 21 with her children. In the summer of 2018, ST decided she had to pay up or get out. ST's agent removed Ms Griffiths' main electrical fuse on at least two occasions, plunging her and her children into darkness. When she was rushing into her flat with shopping in her hands trying to avoid ST, ST took her only key from the lock where she had left it for a few seconds, thus depriving her of her security.
30.
On three occasions groups of men entered her flat by force. On the first occasion the children were intimidated with bats, and later, a polite and well-dressed man claiming to be ST's nephew but accompanied by thugs told Ms Griffiths to "Get out". On the second occasion there was a violent kicking on the door against the barricades which were by then Ms Griffiths’ only form of security. On the last occasion, masked men armed with a claw hammer broke in shouting about drugs. Following ST's orders, they proceeded to smash the toilet. ST appeared the next day asking to see the damage, even though Ms Griffiths had not reported the incident to anyone. ST insisted on turning the water off, which was not in fact necessary because the damage had not in fact created a leak. ST told Ms Griffiths that she was dirty and left her without water. She reported her to Social Services, which prompted them to offer the family alternative accommodation. When Ms Griffiths returned to collect the remainder of her belongings, ST had had the locks changed, the flat was empty, and Ms Griffiths found some of her possessions dumped in the alley. Those included her young son's bed.
31.
In support of Counts 4 and 5 the Crown called Hayley Griffiths. There was a statement from her son, Kody Morgan, which was read by agreement. That statement included evidence that one of the intruders said, "You have to be out by 8 pm. My uncle runs the place. You’re going to get him into trouble." Despite this evidence, the evidence was that ST did not instruct others to enter the property, cause damage or threaten any occupants, and denied playing any role in either the harassment or the burglary.
32.
There are two grounds of appeal arising out of these counts. Ground 2 asserts that the trial judge was wrong to refuse to allow statements taken from Carl Hopkins and Mahdi Yusef to be put to the witness Hayley Griffiths. Those statements were made in separate possession proceedings at a time before ST and PT turned on them. As we note below, Mr Hopkins and Mr Yusef were themselves the victims of Counts 6, 7 and 8, dealt with next. They made comments in their statements to the effect that they had concerns about Ms Griffiths’ antisocial behaviour and the drug taking in her flat.
33.
Ground 3 of the proposed appeal is a submission that the trial judge was wrong, later in the trial, to refuse to allow the defence to ask Mr Yusef whether he was afraid of Hayley Griffiths and her son, and to put text messages to him which supported that conclusion. The trial judge gave detailed reasons for refusing that application.
34.
The single judge refused permission to appeal on these grounds. He pointed out that, in respect of Ground 2, the passage in the transcript relied on by ST was actually concerned with stopping counsel putting witness statements into the jury bundle, an action which the trial judge rightly refused. As to whether those statements could be put to Hayley Griffiths, both the trial judge and the single judge observed that appropriate applications would have had to have been made. They were not. As to Ground 3, the single judge noted that the trial judge had provided a clear ruling in which he made plain that his alleged fear was not a matter that could be put to Mr Yusef because it had no or little probative value.
35.
We deal first with Ground 2. We agree with the single judge that this ground is confused, because at no time was a proper application made for the statements made by Mr Hopkins and Mr Yusef in the possession proceedings to be put to Ms Griffiths. It appears that counsel prepared a bundle of documents to be put to Ms Griffiths, which, unheralded and unannounced, included these previous statements. The trial judge said that the material could not be put to her unless it was admissible. That was plainly right.
36.
It seems to us that there were a raft of reasons as to why those two statements were, without more, inadmissible. For them to have been put into evidence, it would have required, not only a proper bad character application, but also a hearsay application. Neither such application was made. This was particularly unfortunate since the bundle was not produced until the morning of Ms Griffiths' cross-examination.
37.
A clarification document was received from the applicants yesterday. That suggests that the defence were prevented from putting these statements to Mr Hopkins and Mr Yusef. That is not how the complaint has ever been framed; it is not identified in the 200-plus paragraphs of the Grounds of Appeal. Furthermore, there is no part of the transcript that makes clear that there was any formal application to that effect. The judge here faced a barrage of defence applications as it was. He dealt with them politely and carefully. It is not appropriate to criticise him for not dealing with an application that was not properly made. The transcript makes clear that the judge was dealing with, and certainly thought he was dealing with, a point about the cross-examination of Ms Griffiths. Accordingly, that seems to us to be the proper limit of the complaint under Ground 2.
38.
The first point to make therefore, as we have said, is that there was a need for a bad character application in respect of that material, and that was not made. In any event we are quite satisfied that the absence of those two references in those statements had no effect whatsoever. What ST wanted to be able to do was to cross-examine Ms Griffiths about the drug dealing from her flat; but that was permitted, and Ms Griffiths was subject to lengthy cross-examination on that very topic. It does not seem to us, therefore, that the statements added anything.
39.
Moreover, we repeat, the issue for the jury was whether there was any connection between those events that Ms Griffiths complained about, namely the harassment, the taking of her possessions and so on, and ST. The evidence of that connection was, we think, plain from what one of the men had said about his link to those who owned the property and how ST turned up the following day to turn the water off, even though she had not been notified of the smashing of the toilet. We consider that it is contrary to common sense to suggest that, in some way, the antisocial behaviour referred to in the two witness statements was of substantial probative value in deciding why the men barged into Ms Griffiths' flat, telling her she had to leave immediately and then smashing the toilet so as to cut off her water supply.
40.
We also reject Ground 3 for largely the same reasons. The evidence which the defence wanted to rely on from Mr Yusef amounted to bad character evidence against Ms Griffiths and those who lived with her. Again, therefore, a proper bad character application was necessary and was not made. Further and in any event, since the text messages (which indicated his fear of possible reprisals) had not been put to Ms Griffiths during her cross-examination, it would have been wrong and unfair to allow Mr Yusef at a later stage of the trial to adopt them, because it would have meant that Ms Griffiths would not have had an opportunity to deal with that aspect of the case. Again, we consider that none of this was of any relevance to the main issue, namely whether ST was part of the conspiracy with the men who had broken into Flat 21, told Ms Griffiths to leave and smashed the toilet. Again, we consider that the applicants have come nowhere close to establishing that the text messages had any substantial probative value in respect of any issue, let alone an important issue in the case.
41.
There is one additional point that we should make in relation to Grounds 2 and 3. Those on whose statements the applicants wanted to rely, namely Mr Hopkins and Mr Yusef, were themselves the complainants in relation to Counts 6, 7 and 8. When they came to give evidence in relation to those counts, both men were attacked relentlessly by the applicants and unequivocal submissions were made that both men were liars. So Grounds 2 and 3 arise out of an application to permit the applicants to accuse Ms Griffiths of being a liar by reference to evidence from two men whom subsequently they were going to call, and did call, liars. In our view, that one-eyed approach to evidence was wholly impermissible.
42.
Accordingly, for all these reasons, we do not consider that there is anything in either Ground 2 or Ground 3.
Counts 6 and 7: Harassment and Unlawful Eviction, Flat 6, Carl Hopkins - ST only
43.
Carl Hopkins was a tenant who worked for the applicant ST as a caretaker to offset some of his rent. ST and Adam McChesney asked him to help evict tenants by cutting off their utilities. Mr Hopkins refused. ST therefore sacked him. That loss of work quickly put Mr Hopkins into rent arrears, and McChesney (on ST's behalf) told him that he too had to go.
44.
In February 2019, Mr Hopkins's electricity and water were cut off. Mr Hopkins had nowhere to go and refused to leave the property. ST gave orders for ten men to attend the flat to get Mr Hopkins out. They broke into his flat, assaulting him, knocking out three teeth, and poured petrol over him. They said, "Get out straightaway. Just get out now." Terrified that he was going to be set alight, Mr Hopkins left. When he returned the next day to pick up his belongings, his door had a new lock on it. Mr McChesney met him there and allowed him to collect his things. but his valuables had disappeared.
45.
The prosecution called Carl Hopkins to give evidence in support of these counts. The individual allegations of threats, disconnecting the utilities, physical violence and the removal of belongings were all denied. It was said that Mr Hopkins left the property voluntarily.
46.
Ground 4 of the appeal is that the trial judge erred in refusing to allow in bad character evidence in respect of Carl Hopkins, (the witness whose statement on another point the Defence wished to rely on under Ground 2). Mr Hopkins had convictions for possession (not supply) of drugs dating from 1998 and 2011. He also had a further possession conviction that postdated his illegal eviction. It was said that these convictions were important explanatory evidence because they showed that the men who illegally evicted him may have attended Mr Hopkins's property in connection with drug dealing and had not been sent by ST.
47.
The trial judge ruled that the convictions could not be put to Mr Hopkins, but that he could be asked whether he was a user of drugs or a drug dealer at the time of the illegal eviction. The defence were not permitted to go into any further evidence on those matters if Mr Hopkins denied them. The judge again made the point that there was a real danger of the trial expanding into a series of satellite arguments on issues that were not of substantive importance to the case as a whole. Mr Hopkins denied drug use but was cross-examined in a way that, in our view, went considerably beyond the judge's original ruling. When Mr Hopkins had finished his evidence, the application was reopened but the judge again refused it.
48.
The single judge was unimpressed with Ground 4, noting that the judge was best placed to assess the weight and relevance of Mr Hopkins's convictions in the context of the trial as a whole.
49.
We agree with the single judge. The offences against Mr Hopkins, the subject of Counts 6 and 7 took place in late 2018 and January 2019. Accordingly, previous convictions from 1998 and 2011 were irrelevant as to whether he was a drug user at the time of the assaults upon him. The conviction after the relevant events was of no probative value whatsoever.
50.
We note that when the application was made and renewed, the defence relied on
R v Luckett
[2005] EWCA Crim 1050
. Indeed, that was an authority to which the applicants had repeated recourse in relation to their applications to put in the bad character of various witnesses who had convictions for drug offences. In
Luckett
, this court ruled that evidence of the victim's bad character, and in particular his association with and violent encounters involving drug dealers, was of substantial probative value on the issue of how the victim came by his injuries. It will be seen at once, therefore, that
Luckett
is a very different case to this one. Take Mr Hopkins as an example. Mr Hopkins had no conviction for drug dealing at all. Moreover, there was no evidence of any encounters between Mr Hopkins and drug dealers at any time and no evidence of any evidence of violence as between drug dealers and Mr Hopkins. Accordingly, this was a completely different case to
Luckett
, and like the trial judge, we derived no assistance from it at all.
51.
Standing back, it is necessary to remember that the issue in relation to Counts 6 and 7 was the extent to which the events about which Mr Hopkins complained were events which involved ST. Again, it might be thought that the fact that the men told Mr Hopkins to "get out straightaway" clearly indicated that they were concerned with his eviction rather than money he might owe as a result of drug use. Furthermore, the fact that McChesney was there the following day changing the locks provides further support for the prosecution case that ST was plainly part of a conspiracy to evict Mr Hopkins.
52.
Accordingly, we reject Ground 4 of the proposed appeal. We note that a further point is made by Mr Hopkins under Ground 7, 'Collusion', and we deal with that below.
Count 8: Harassment, Flat 24, Mardy Yusef - ST and PT
53.
Mr Yusef had a drink problem and fell into arrears. In the autumn of 2018 the applicant ST and McChesney went to his flat. ST barged her way in. McChesney stood and watched. Subsequently Mr Yusef's letterbox was removed while he was away. His electricity too was cut off on more than one occasion. Mr McChesney kept asking Mr Yusef when he was moving out and when he was going to pay the rent.
54.
Thereafter the lock on Mr Yusef's door was changed, so he had to break into his own home and was not able to secure it again. He got a man to start replacing the door because the landlords would not, but was prevented from doing the work and so was left with no door at all. He was physically assaulted by other men working indirectly or directly on the orders of ST.
55.
In support of these allegations the Crown relied on the evidence of Mr Yusef, who had video recordings of some of the relevant incidents. There was also the evidence of PC Foster, whose statement was read. The defence of both ST and PT was based on a denial of involvement in the relevant incidents. However, they both accepted removing a lock that Mr Yusef had attached to the outside of the door; although they maintained that the door had been left secure. They again said that Mr Yusef had vacated the property voluntarily.
56.
There is no specific ground of appeal relating to Count 8. It is potentially covered by the ground of appeal at Count 7, (Collusion), and the general Grounds 8 and 9. Other than that, no specific points arise in respect of the safety of the convictions in relation to Count 8.
Counts 10 and 11: Harassment and Unlawful Eviction, Yolanda Jane Davis, Flat 13 - ST only
57.
Yolanda Davis was a long-term drug user with personal problems but was able to function quite well at the material time and had her drug use under reasonable control. She had lived at the property for some twenty months by the spring of 2019 without difficulty. In May 2019 her Personal Independence Payment was stopped at very short notice and she started to fall into rent arrears. The applicant ST and McChesney told her she had to pay up or leave. ST told her she had better find "somewhere nice and safe" to live. McChesney told her "to be careful".
58.
As time went on McChesney repeatedly told Ms Davis in text messages that if she did not meet a 7 o'clock deadline he would be obliged to go round and change the locks. McChesney told Ms Davis he would be in trouble with the landlords if he did not do it. Ms Davis's electricity and gas were cut off. She recorded some conversations with ST in which ST told her to get out.
59.
Ms Davis told McChesney that any eviction had to be done lawfully. McChesney replied, "You know she doesn't do things like that". ST told her "No Yolanda, if you can't pay you have to leave". In the end, on an evening when Ms Davis was away and allowed the friend of a friend to stay the night, McChesney took advantage by throwing the friend out, changing the locks, smashing the toilet, or allowing others to smash it, and screwed the door shut. Ms Davis never recovered most of her belongings; found some of them later furnishing another flat ready for letting. Ms Davis broke into the flat to recover them. Other possessions of hers were scattered in the alley to which we have already referred.
60.
The prosecution called a large number of witnesses in support of Counts 10 and 11. Yolanda Davis gave evidence; and she exhibited text and voice messages between herself and both ST and McChesney. There was also evidence from DC Collins about the contemporary complaints made by Ms Davis before the eviction, and evidence from her friends, Eddie Wardle and Lee Sorrell, about certain specific instances. Despite the evidence of the messages, ST denied any involvement in any of the events related by Ms Davis. Again it was said that she had left the flat voluntarily.
61.
Two grounds of appeal arise in relation to Counts 10 and 11. Ground 5 is a complaint that the trial judge erred in refusing to admit the bad character evidence in respect of Yolanda Davis. Ground 6 is that the trial judge erred in refusing to admit the bad character evidence of Edward Wardle.
62.
The single judge rejected these criticisms, saying in respect of Ground 5 that this was "a classic case of a judge, who is fully sighted on all the issues in a complex case, being best placed to assess whether evidence is merely relevant, or whether it meets the high threshold of 'substantive probative value'…". Similar points arose in relation to Ground 6, with the additional consideration that, as the single judge noted, Mr Wardle was a peripheral witness and the Defence had ample material on which to cross-examine him in any event.
63.
Before considering the individual grounds, it is again necessary to take a step back and consider the defence raised by ST to these counts, that she was not involved in the events related by Ms Davis. In our view that defence was fanciful, given the evidence that ST told her to find somewhere "nice and safe" to live; that McChesney told her he would be in trouble with the landlords if he did not change the locks; that there were recorded conversations where ST had told Ms Davis to "get out"; and where McChesney made plain in a text that ST did not do things like apply for legal eviction. We consider that the inherent weakness of ST's defence to Counts 10 and 11 will necessarily have informed the judge's approach to the relevant bad character applications.
64.
We take Ground 5 first. Ms Davis had a number of previous convictions for drugs, theft and fraud. It appears that the acquisitive offences were committed to fund her drug habit. That is not, sadly, uncommon. Those convictions do not, we consider, reflect on her credibility: contrary to the suggestion at [176] of the Grounds document that a drug user is "the type of person who is capable of inventing a story for her own ends", the law does not make such facile assumptions: see
R v Brewster
(cited above). We are therefore left with the inescapable conclusion that the application in respect of Ms Davis's bad character was again designed as a character blackening exercise with no reference to the probative value of the material or the issues in the case. The single judge thought that Ground 5 was unarguable as a ground of appeal. We agree.
65.
This morning Mr Vaughan KC argued that in relation to these counts the central issue was the credibility of Ms Davis. We respectfully disagree. The central issue, given the independent evidence of harassment and illegal eviction, was whether there was any connection with ST. The jury had no difficulty in connecting her with the criminal activities. We have no such difficulty either.
66.
Similar conclusions follow in respect of Ground 6 and the complaint about the judge's refusal to admit Mr Wardle's convictions, in particular for supplying Class A drugs. It was impossible to see how that conviction went to any issue in the case or had any substantial probative value. Again the analysis in
R v Brewster
is applicable. The judge rightly described Mr Wardle as a peripheral witness dealing with a peripheral issue (why certain people were in Flat 13 on a particular night, who they were, and who removed them).
67.
For these reasons, we reject Grounds 5 and 6 of the proposed appeal. We next turn to deal with Ground 7, which is concerned with a collusion and is raised in respect of Mr Hopkins (Counts 6 and 7), Mr Yusef (Count 8) and Ms Davis (Counts 10 and 11).
Ground of Appeal 7: Collusion
68.
It was suggested on behalf of ST that the proposed evidence of a woman called Julie Robinson indicated that there had been collusion between Hopkins, Yusef and Davis. She said that these three admitted to her that they had given statements to the Council (the "respondent") about their treatment at the hands of ST and PT. The judge produced yet another detailed ruling refusing to admit this part of Ms Robinson's evidence to be adduced. He said that there was nothing in her draft statement about the likely truthfulness of the evidence of these witnesses and therefore her evidence as to the collusion was irrelevant and inadmissible.
69.
The single judge was unimpressed with this ground of appeal, describing the judge's ruling as "unimpeachable". We agree. In her statement, Julie Robinson did not suggest that Hopkins, Yusef and Davis were getting together to make up allegations against ST and PT.
70.
On a closer analysis, we consider that the suggestion of collusion fails at each hurdle. First, Ms Robinson does not say that the three were colluding at all; she simply says that Mr Hopkins said he was "getting a case going" against ST and PT, and that Mr Yusef and Ms Davis "were involved as well". That does not even suggest that they were talking to one another.
71.
Secondly, as we have said, Ms Robinson does not say that the three had agreed to lie in their statements and/or that Mr Hopkins said that he or they were going to make up allegations against ST and PT. There was therefore never any challenge in her proposed evidence to the reliability of the accounts that the three witnesses had given. In those circumstances Ms Robinson's statement was inadmissible because it was irrelevant. It certainly did not go to an issue in the case.
72.
Thirdly, we consider that the suggestion of collusion - which is a serious allegation - had not been fairly and squarely put to Ms Davis, Mr Hopkins and Mr Yusef earlier in the trial when each had been cross-examined. The trial judge pointed out that it had not been suggested to them when they gave their evidence that they had got together to create false evidence against ST and PT. It would therefore have been wrong and unfair for Ms Robinson to come to court later and attempt to give such evidence, when it had not been put to the alleged perpetrators. Mr Vaughan said this morning that what was included in the summary of Ms Robinson's evidence was simply a synopsis and that she was going to go on to say that they had got together to put together a false case. The difficulty with that is that it was not in the synopsis, that was not what the judge ruled on, and that was not what was put to the three witnesses. Accordingly, it seems to us that the collusion aspect was properly dealt with by the judge and there can be no possible basis now for a complaint.
73.
We therefore reject Ground 7 of the proposed appeal.
Counts 12, 13, 14, 15 and 16: Various victims and flats, Harassment and Wrongful Evictions - both ST and PT
74.
These counts involved six further victims and strikingly similar evidence of offending against ST and PT. We summarise that offending below. There are no specific grounds of appeal arising out of these counts, but they are of course affected by Grounds 8 and 9.
Counts 11 and 12: Stefka Yankova and Petar Yankov, Flat 24
75.
Stefka Yankova and Petar Yankov were Bulgarian immigrants who had gone to the UK for work. They were introduced to the block by El Darrat. They were allowed to move five people including a child aged 5 into a one-bedroom flat provided they did not let the respondent know. When work was scarce during the pandemic, they fell into arrears. That was during the emergency prohibition on the eviction of any tenant (even by lawful means) during the pandemic. ST told them that they had to leave and could only return if they paid two months’ rent in advance.
76.
Their electricity was stopped. Their locks were changed. When they got back into their home momentarily, ST grabbed Ms Yankova's handbag, it seemed in an attempt to recover some of the money ST was owed, but Ms Yankova's husband took it back from PT. PT violently grabbed a phone from a small boy who was recording the scene. El Darrat assisted in removing and disposing of their belongings, knowing that it was against their will and without their permission. They never got them back.
Count 14: Maya Yankova and Iliyan Kostov, Flat 13
77.
Maya Yankova (Stefka and Petar’s daughter) had also come to the UK for work. El Darrat assured her it was fine to have large numbers in a one-bedroom flat provided they did not let the Council know. They arrived in October 2020 during the pandemic. Ms Yankova fell into arrears very quickly. Her electricity supply was stopped, her gas was stopped, and she was told to leave.
78.
A campaign of harassment commenced, with loud repeated knocking on the door, and on one occasion (captured on video) El Darrat pushed the door in with such force as to pull the security chain off its fixing. ST used to walk in uninvited and shout and scream at the occupants for money. She told the men working for her, including El Darrat, to remove the furniture and appliances (some of which were provided by ST, others belonging to the occupants) so that it was difficult for them to live. PT was recorded on video demanding that they left immediately. This again was during the specific ban even on otherwise lawful evictions during the pandemic.
79.
The applicants ST and PT persuaded the police to tell Ms Yankova's own husband that he had to leave the flat.
Count 15: Jordan Humphrys, Flat 16
80.
Jordan Humphrys was a vulnerable young man on the cusp of independent living. When he fell into arrears, ST and PT told him they wanted him gone. Mr Humphrys knew of the violence to those who resisted the applicants and was too weak a character and too fearful to put up any significant argument.
81.
In January 2021 - still during the moratorium on lawful evictions - he agreed to leave, although it was against his will. As he left, his lock was changed, and El Darrat supervised Mr Humphrys as he picked up his things by letting him in with a new key.
Count 16: Anka Angelova, Flat 5
82.
Anka Angelova went on a visit to Bulgaria in July 2021 and left numerous members of her extended family in her flat. The applicants brought in contractors to say the place was uninhabitable and forced everyone living there to leave. The flat was not uninhabitable but required some immediate repairs to the bathroom floor, which the applicants had failed to address for some six months despite repeated written notices from the respondent requiring that and other defects be remedied. When the applicant evicted the occupants, they took the flat key and electric meter key. When Ms Angelova returned from Bulgaria the applicants made a show of offering her alternative accommodation while the flat was repaired, but that alternative accommodation never materialised. The whole family ended up sleeping in their cars.
83.
The defences run by ST and PT to all those counts were more of the same: that they had not been involved in the events about which the victims complained and they had voluntarily left the property and agreed that their belongings should be removed. Noticeably in relation to Count 14, ST and PT said that, if they did shout or behave aggressively, it was not done with the intention of causing Ms Yankova to leave the property, but to encourage her to pay rent. Furthermore, in relation to Ms Angelova, the immediate eviction was admitted, but it was said that it was necessary so as to ensure full repairs could be carried out to the bathroom floor. ST and PT were convicted on all these counts; indeed these counts make up five of the seven counts on which PT was convicted. As we have said, there are no specific grounds of appeal in relation to any of them.
84.
So pausing there, the position is this. There was a considerable amount of both general and detailed evidence against ST and PT supported by numerous witnesses. There was also a good deal of independent evidence. Their response, which included some limited admissions, was largely based on blanket denials. A number of the individual counts, (including six of the seven counts on which PT was convicted), are not now the subject of any specific ground of appeal at all. As we have explained, there is nothing in Grounds 1-7 of the proposed appeal. Accordingly, this renewed application now turns on the last two grounds, namely Ground 8 and Ground 9, which are of general application. Do they render all the convictions including those on which there are no specific complaints unsafe or unfair?
85.
As a lead-in to those last two grounds, surveying the evidence as a whole, we consider that ST and PT faced real difficulties based on the sheer volume of the evidence against them. Realistically the jury will have been asking themselves: how unlucky can two people be, that so many of their tenants were subject to this appalling behaviour, in circumstances where the only people who would benefit were ST and PT themselves, and yet none of it was apparently anything to do with them?
Ground 8: The evidence of ST and PT
86.
The complaint at the heart of Ground 8 is that in his summing-up the trial judge erred in directing the jury that they could hold accusations made by ST and PT against them when assessing their credibility if they found those accusations not to be proved. No particular words in the directions are identified as setting out this alleged direction. This is important because the single judge was of the view that the trial judge did not give the direction complained of. Instead the single judge thought that the trial judge had explained how the jury should approach the background matters, and then given examples of what they might conclude, thereafter leaving it to them to decide what, if anything, they made of those examples.
87.
The Judge's directions were in these terms:
"BACKGROUND DISPUTES
As I have emphasised throughout, and already repeated today, it makes no difference what an occupier has done: even if they did everything they have been accused of by the defendants, it's still an offence to do anything these defendants are charged with. So how should you approach all their background disputes?
In order to reach your verdicts, it is not necessary to come to any conclusion as to whether this or that tenant paid rent on this or that month, or over-occupied the flat, or sold cigarettes, or was involved with drugs, and so on.
Equally, in order to reach your verdicts, it is not necessary to decide whether any defendant deliberately deceived tenants about the difference between a deposit and a service charge; or whether they overcharged for rent; or whether they were negligent with regard to their maintenance obligations. The defendants are not charged with any offences in respect of those allegations.
Nevertheless, these background matters remain very much in dispute, and it would not have been possible to understand the evidence of both sides, without hearing something about them. You may feel able to form some views about the rights and wrongs of some of these background disputes. For example, do the background allegations of misbehaviour by tenants and their families represent (i) a pattern of real, unlawful and antisocial behaviour by difficult and badly behaved tenants; (ii) a pattern of these defendants inventing allegations against tenants they want out, to help get them evicted, and to attack their credibility in court; or (iii) some combination of both? Similarly, do the background allegations against the defendants represent (i) a pattern of real deceit and exploitation by self-interested landlords; or (ii) a pattern of lies and exaggerations by tenants who are 'out to get' these defendants; or (iii) some combination of both?
These background disputes may help explain or put into context some of the more central issues in the case; and they may assist you in assessing the credibility of the various witnesses. How much significance they carry is a matter for you."
88.
Our analysis is this. First, we consider that the trial judge simply did not give the direction which he is alleged to have given. His direction was not about lies, but a more general direction about the background dispute.
89.
Secondly, as to the direction itself, the judge could hardly avoid giving a direction to the jury about the background disputes. Because of the myriad background matters raised on behalf of both sides, they could not be entirely ignored. What the judge was doing in the passage that we have cited was starting with the conventional direction, that the jury did not have to decide all of the various points raised by either side; that what mattered was whether ST and PT were guilty of the offences with which they had been charged, (which central direction was also the subject of separate written legal directions and a Route to Verdict). But understandably the trial judge went on to say that the jury may have felt able to form some views about some of these background matters and whether, as the defence said, they represented a pattern of real, unlawful and antisocial behaviour by difficult and badly behaved tenants, or as the respondent said, a pattern of these applicants inventing allegations against tenants they wanted to evict, or a combination of both. The trial judge said that this was a matter for the jury. He stressed that they must not become distracted with these background matters.
90.
In our view, given the nature of the evidence as a whole, that was a sensible, fair and balanced direction to give in a case where there been four-and-a-half weeks’ worth of evidence mainly about what could fairly be described as background matters.
91.
There is a suggestion at [211] of the Grounds document that, because the trial judge limited the questions that could be put to some of the respondent's witnesses, they (that is to say the jury) were likely to find the defence accusations unproven. We reject that submission out of hand. There was no important part of the defence case, and the accusations ST and PT made against their tenants, that was not fully explored in the evidence. The trial judge properly limited the scope of that evidence, otherwise the trial would have taken twice as long. Again we remind ourselves that the trial judge ruled out the entirety of the bad character application against ST, despite her attacks on her tenants. The trial judge was entitled to regulate the evidence in the way in which he did. That held true for the evidence of both sides.
92.
For these reasons, therefore, we have concluded that there is nothing in Ground 8.
Ground 9: The Judge's direction as to the whole of the evidence
93.
Ground 9 in is put in these terms:
"The convictions on all Counts (including Counts 2 and 12-16, not specifically referred to above) were rendered unsafe due to Learned Judge's errors in Grounds 1-8 coupled with his direction to the jury that they should consider the whole of the evidence when deciding each individual verdict."
94.
Because we have rejected as unarguable the existence of errors in relation to Grounds 1-8, Ground 9 comes down to the Judge's summing-up under the head of "11 Different Occupiers". The direction was in these terms:
"11 DIFFERENT OCCUPIERS.
There are 16 counts in this case, many of them against more than one defendant, requiring 34 verdicts in all. As I have already said, each verdict must be considered separately, and obviously your verdicts do not all have to be the same.
The 16 counts cover 11 residential occupiers, and 11 different households. So as well as the evidence relating directly to each occupier, the evidence as a whole creates a wider picture or context, which you are entitled to consider. The basic principle is, you may (and indeed should) consider the whole of the evidence, when deciding each individual verdict.
The prosecution are entitled to say: 'It is not just one tenant saying they were told the extra payment at the start was a deposit; it is all of the prosecution witnesses, and that makes it more likely that each one of them is telling the truth on that point. It is not just one tenant who says violent and threatening burst into their flat at a time when the landlords were trying to get them out; it is four of five of them, which shows a distinct pattern of behaviour. It is not just one tenant who says the lock on their flat was changed to keep them out. It is not just one who says their possessions were forcibly removed and stolen or dumped, or who says utilities were turned off or bathrooms damaged.' These similarities, the prosecution say, create clear patterns of behaviour, which can only be explained in one plausible way, that when the defendant decided it was time to get someone out, these are the kinds of steps they took to do it. Put another way, the prosecution are entitled to say: 'It is not plausible that all of these 11 different households would have any reason to make up such serious lies about people who have never done them any wrong.
The Defence, on the other hand, are entitled to say: 'What you have here is a pattern, but it is a pattern of lying. The tenants in question are unreliable witnesses who have, for reasons of their own latched on to certain easy and recyclable lies in order to get these defendants into trouble for things they are entirely innocent of.' Whilst not all these tenants knew each other, some of them plainly did; and those who did know each other may well have conspired together to tell certain similar lies in order to make their campaign of falsehood against these defendants more plausible. In addition, where you find that certain forced and violent entry to people's homes did take place, or fuses were taken, etc, it may well be that these acts were carried out by other people – other people who had a grudge against whichever tenant, and thus had nothing to do with the defendants at all.
These are the sort of arguments and considerations which apply when you look at the evidence about each residential occupier in the context of the evidence as a whole. But, as you have seen from the Route to Verdict, the question in the end will always be whether you are sure that a particular defendant is guilty of the particular charge you are considering."
95.
The single judge considered this direction to be unexceptional but did not otherwise address the point. It is also right to say that the complaint now made about the direction by Mr Vaughan is fairly and appropriately measured. The complaint is put in these terms:
"Whilst no complaint is made about how the Learned Judge directed the jury in this respect, the corollary is that once the Defence were disadvantaged in relation to one count, it had a knock-on effect in respect of the others."
96.
We have of course already rejected the suggestion that the learned judge erred at all, but we ought to deal with the more general point about the judge's treatment of the whole of the evidence.
97.
As a matter of law,
R v Freeman
[2009] 1 WLR 2723
at [19-20] confirms that the jury does not have to be sure of guilt on one count before relying upon the evidence in respect of that count on another count. The jury can look at the evidence on any other count, or look at the matter as a whole in relation to that defendant. In the directions to the jury, that should be dealt with on the basis of coincidence rather than propensity: see
R v McAllister
(2009) 1 Cr App R 10
.
98.
In our view the judge’s direction set out above was a proper direction in the unusual circumstances of this case. It was completely unrealistic to expect the jury to ignore the fact that so many of the counts against ST and PT were based on very similar incidents: threats, intimidation, changing of the locks, and so on. Whilst the jury were told that they had to consider the evidence on each count separately, they were also entitled to consider all the evidence in the round. It echoed the Judge's earlier reference to the patterns in the evidence alleged by both sides.
99.
We acknowledge of course that this was not a standard cross-admissibility direction; but that is not the complaint that is made. Doubtless that is because a more standard cross-admissibility direction, in a case of this sort would, we think, have been very unfavourable to ST and PT. In the unusual circumstances of this case, given the nature of the evidence which the jury had to corral, we consider that a direction in the terms given was appropriate. It was a version of the coincidence cross-admissibility direction referred to in the
Bench Book
, albeit much altered to reflect the evidence in this case. The important thing about it was that it was fair and balanced. It also expressly required the jury to think about the defence case that the complainants had conspired to tell similar lies, which was a version of the collusion direction, also set out in the
Bench Book
. Moreover, it concluded with a restatement of the need to look at each individual count separately. In all the circumstances the provision of that direction in the unusual circumstances of this case cannot possibly render the verdicts unsafe or unsatisfactory.
100.
Finally, it cannot be said that the jury allowed themselves to be overly influenced by the evidence as a whole when considering each individual count. Both ST and PT were acquitted of some counts, which only confirms the care and attention which the jury paid to the individual components of this troubling case.
101.
For all those reasons, therefore, we consider Ground 9 to be unarguable.
Conclusion on the renewed applications to appeal against conviction
102.
In our view, for the reasons that we have set out, there is nothing in any of the Grounds of Appeal raised by ST and supported by PT. Standing back, considering the case in the round, we are satisfied that the convictions against ST and PT are entirely safe.
103.
It follows from what we have said that we consider that these renewed applications are, and always were, hopeless. They have incurred a considerable waste of court resources. We are therefore going to invite Mr Vaughan to address the court as to why we should not make loss of time orders in each case.
(Further submissions. The court adjourned for a short time to consider its judgment on this aspect of the applications)
Loss of Time Orders?
104.
We have considered carefully whether to make loss of time orders in this case. This was a case where there were a number of detailed rulings by the trial judge during the course of a four-and-a-half week trial. The grounds of appeal largely focussed on those rulings. They were then considered in detail by the single judge. There was also a detailed Respondent's Notice. The single judge’s refusal meant that most of the points on which the applicants relied before us had already been judicially considered and rejected not once but twice. Following refusal, it seems to us that the applicants should have sat down and said to themselves, “Well, what is wrong with what the single judge said? What is the answer to the points he made and which are made in the Respondent's Notice? Is there an answer?” None of that appears to have happened here.
105.
Instead, it looks as if the applications were renewed almost automatically. In our view, the practice of simply replicating an application for permission to appeal, as if the single judge had not set out detailed reasons for refusal, is becoming more common and needs to stop. It takes no account of the fact that, in the last 20 years, the s.31 procedure has been improved out of all recognition: instead of one or two paragraphs, the single judge provides a detailed mini-judgment explaining the reasons for refusal. In our view, those reasons need to be respected and properly considered before any renewed application is made.
106.
The problems caused by renewing an application, despite what the single judge has said, were particularly acute in this case. The three members of this court have had to get up to speed with a vast amount of detail arising out of a trial that lasted four-and-a-half weeks. That has taken each of us around three days. So that is nine days of judicial time. In addition, my Lady is the Honorary Recorder of Redbridge, so a number of other judges have had to do the administrative work which she would otherwise have done in those three days.
107.
Accordingly, these applications have had a huge impact on resources. And yet they were inherently hopeless, as we have demonstrated: unrealistic and devoid of any merit. That combination explains why we have been so concerned about this case.
108.
However, we have decided that, in all the circumstances, we will not make loss of time orders. That is largely to do with the personal circumstances of both ST and PT which we do not set out here; partly because the single judge did not tick the relevant box (which is far from being determinative, but is material); and partly due to the other submissions that Mr Vaughan has made. We acknowledge the industry that he has demonstrated throughout.
109.
That said, the time has come when applicants who wish to renew their failed PTA applications need to think long and hard about their prospects of success and the risk of failure. In particular, they need to grapple with what the single judge has said, not just ignore it. In the future, in a case of this sort, this court will have no hesitation in making a loss of time order.
110.
So Mr Vaughan, for those reasons, in this case we are not going to make loss of time orders, but we have to say it was a very close-run thing.
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": ["data not available"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["Harassment", "conspiracy to interfere with the peace and comfort of a residential occupier", "conspiracy to burgle", "conspiracy to unlawfully evict the tenants", "Unlawful Eviction", "Burglary"], "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": ["ST was sentenced to 5 years imprisonment. PT was sentenced to 40 months' imprisonment."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["her son"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["beneficial owners and managers of a property"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["Prospective tenants"], "VictimType": ["Prospective tenants"], "VicNum": ["11 residential occupiers"], "VicSex": ["Julie Box-Beaumont and Stephen Dale"], "VicAgeOffence": ["late middle age"], "VicJobOffence": ["worked for the applicant ST as a caretaker"], "VicHomeOffence": ["property at 28 Athelstan Road, Margate"], "VicMentalOffence": ["alcohol and gambling problems"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["video evidence", "evidence of PC Foster", "prosecution witnesses", "prosecution called a large number of witnesses"], "DefEvidTypeTrial": ["defence case that the majority of the allegations against ST and PT were lies"], "PreSentReport": ["data not available"], "AggFactSent": ["took place over a lengthy period, from at least 2016-2022", "vulnerable people"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["applicant"], "CoDefAccNum": ["Two other co-defendants, Adam McChesney and Kasem El Darrat"], "AppealAgainst": ["PT also seeks permission to appeal against conviction, relying on the same nine grounds."], "AppealGround": ["Ground 1 of the proposed appeal against conviction is that the trial judge erred in refusing to admit into evidence bad character evidence relating to Stephen Dale.", "Ground 3 of the proposed appeal is a submission that the trial judge was wrong, later in the trial, to refuse to allow the defence to ask Mr Yusef whether he was afraid of Hayley Griffiths and her son, and to put text messages to him which supported that conclusion.", "Ground 7, 'Collusion',", "Ground 8 is that in his summing-up the trial judge erred in directing the jury", "Ground 2 asserts that the trial judge was wrong to refuse to allow statements taken from Carl Hopkins and Mahdi Yusef to be put to the witness Hayley Griffiths.", "Ground 9: The Judge's direction as to the whole of the evidence"], "SentGuideWhich": ["s.100 Criminal Justice Act 2003", "s.1(2) Criminal Law Act 1977", "Criminal Appeal Act 1968 and the Prosecution of Offences Act 1985."], "AppealOutcome": ["we are satisfied that the convictions against ST and PT are entirely safe."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["there is nothing in any of the Grounds of Appeal raised by ST and supported by PT"]} | {"ConvCourtName": ["data not available"], "ConvictPleaDate": ["Don't know"], "ConvictOffence": ["Harassment", "Unlawful Eviction", "Burglary", "conspiracy to burgle", "conspiracy to unlawfully evict the tenants", "conspiracy to interfere with the peace and comfort of a residential occupier"], "AcquitOffence": ["Don't know"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["data not available"], "Sentence": ["ST was sentenced to 5 years imprisonment. PT was sentenced to 40 months' imprisonment."], "SentServe": ["Don't know"], "WhatAncillary": ["data not available"], "OffSex": ["Mixed"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individuals"], "VicNum": ["11"], "VicSex": ["Mixed"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Employed"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Had mental health problems"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["prosecution called a large number of witnesses", "Police evidence", "prosecution witnesses", "Digital evidence"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["vulnerable people", "Prolonged"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["3"], "AppealAgainst": ["Other"], "AppealGround": ["Ground 9: The Judge's direction as to the whole of the evidence", "Ground 8 is that in his summing-up the trial judge erred in directing the jury", "Ground 7, 'Collusion',", "Ground 3 of the proposed appeal is a submission that the trial judge was wrong, later in the trial, to refuse to allow the defence to ask Mr Yusef whether he was afraid of Hayley Griffiths and her son, and to put text messages to him which supported that conclusion.", "Ground 2 asserts that the trial judge was wrong to refuse to allow statements taken from Carl Hopkins and Mahdi Yusef to be put to the witness Hayley Griffiths.", "Ground 1 of the proposed appeal against conviction is that the trial judge erred in refusing to admit into evidence bad character evidence relating to Stephen Dale."], "SentGuideWhich": ["s.100 Criminal Justice Act 2003", "s.1(2) Criminal Law Act 1977", "Criminal Appeal Act 1968 and the Prosecution of Offences Act 1985."], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["there is nothing in any of the Grounds of Appeal raised by ST and supported by PT"]} | 151 |
Neutral Citation Number:
[2020] EWCA Crim 1579
Case No: 201904055 B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice,
Strand, London, WC2A 2LL
Date:
24/11/2020
Before :
LORD JUSTICE POPPLEWELL
MRS JUSTICE McGOWAN
and
HER HONOUR JUDGE MOLYNEUX
- - - - - - - - - - - - - - - - - - - - -
Between :
R E G I N A
Respondent
- v -
ANDREW JOHN LUCKHURST
Appellant
- and -
SPENCER GOLDING
Intervenor
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Benjamin Douglas-Jones QC and William Douglas-Jones
(instructed by JRB Solicitors)
appeared on behalf of the
Appellant
Kennedy Talbot QC and James Lake
appeared on behalf of the
Crown Prosecution Service
James Lewis QC and Simon Baker
made written submissions on behalf of the
Intervenor
Hearing dates : 17 July and 12 November 2020
-
- - - - - - - - - - - - - - - - - - - -
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 at 10 a.m. on 24 November 2020.
Lord Justice Popplewell :
Introduction
1.
This appeal raises issues of principle as to the scope of living and legal expenditure which should be permitted by restraint orders granted pursuant to s. 41 Proceeds of Crime Act 2002 (“the 2002 Act”). The appellant appeals, with leave, from the judgment of HH Judge Carr, sitting in the Crown Court at Birmingham, handed down on 30 September 2019, in which he refused the appellant’s application to vary a restraint order granted against him by HHJ Clark sitting in the Crown Court at Leeds on 15 December 2017.
Chronology
2.
At the time of the application the appellant (“AL”) was 68. After a career in his youth as a professional cricketer and footballer, AL set up a financial services business, BBT Partnership Limited (“BBT”) through which he practised as an independent financial adviser for some 25 years before BBT collapsed in 2016. In 2014, AL and Nicholas Shaw, his long-time colleague at BBT, set up a company (“Aspirations”) together with Ian Bascombe, through which they introduced clients to an investment scheme run by a Mr Denton and Mr Oakley. It is the Crown’s case that the scheme was a fraudulent Ponzi scheme; that of £15.25 million collected from investors by Aspirations, only £9.75m was invested; and that AL stole other monies from his clients. He was charged with offences of fraud and theft in the spring of 2018, together with others. His trial is to take place separately from that of Messrs Denton and Oakley, and after its conclusion. Their trial commenced in January 2020 but had to be abandoned as a result of the COVID-19 pandemic. There is currently no firm date for its rehearing, which may be in May or September of next year. There will be a second trial thereafter of AL and his co-defendants Mr Shaw and Mr Bascombe.
3.
In 2016, six of BBL’s investors in the scheme commenced proceedings in the Chancery Division of the High Court against AL, BBT, Messrs Shaw, Bascombe and Denton, and others, including a firm of solicitors, Locke Lord (UK) LLP (“the civil proceedings”). On 30 September 2016 Barling J made a worldwide freezing order in those proceedings against AL up to a value of £2.71m. It permitted him to spend £600 per week on ordinary living expenses and a reasonable sum on legal advice and representation. The living expenses amount was increased to £1,500 per week on 11 October 2016.
4.
AL’s pension owned a commercial property, which he arranged to sell in order to provide funds for his living and legal expenses. It is said that those arrangements were made in principle in early 2017; the sale was not, however, completed until May or June of 2018. AL blames the pension trustees for the delay; the prosecution say AL is to blame because the property had been let to business tenants without the trustees’ agreement and the rent paid to his wife.
5.
In the interim, a settlement was reached in the civil proceedings on 8 December 2017 which resulted in the freezing order being discharged. AL was not party to that settlement, which was between Locke Lord and the claimants, now numbering 48, but has been told by Locke Lord’s solicitors that it included an assignment of the Claimant’s claims against him and the other defendants. AL therefore faces the
claims against him by the claimants, being pursued in Locke Lord’s name, and Locke Lord’s own claims to indemnity or for contribution as a Part 20 Claimant. Those claims have been pursued in correspondence by Locke Lord’s solicitors, resulting in an offer of settlement on 9 April 2019.
6.
At the time of the discharge of the freezing order on 8 December 2017, the police were already investigating the alleged fraud, and had already considered seeking a restraint order against AL, but took the view that they could not do so whilst the freezing order was in place restraining dissipation of assets. Shortly after the freezing order was discharged, an ex parte application was made by the Crown Prosecution Service (“CPS”) for a restraint order, which was granted by HHJ Clark on 15
December 2017 (“the Restraint Order”). It extended to all AL’s assets. The Restraint Order permitted AL to spend £250 per week on ordinary living expenses, and permitted variation of that amount with the written agreement of the CPS.
7.
The Restraint Order also restrained his second wife (“HPL”) from dealing with two identified properties in which she shared a joint interest with AL. They were the matrimonial home in Lichfield, and a holiday home in Marbella, Spain. Her assets are not caught by the Restraint Order save in respect of the two properties.
8.
The Restraint Order has been varied to increase the living expenses allowance by agreement with the CPS on a number of occasions. At the date of the application it was £4,631.99 per month (representing agreed living expenses of £5,918.24, the difference to be met from HPL’s income). At the date of the hearing before us it was £5,000 per month (representing agreed living expenses of £6,286.25 the difference again to be met from HPL’s income). In addition the CPS has agreed to variations to allow a number of one off payments.
9.
With the agreement of the CPS, the matrimonial home was sold in March 2019 and AL and HPL moved into rented accommodation. HPL received half of the proceeds.
The variation application
10.
The variation application was supported by a witness statement of AL dated 12 July 2019. The CPS served a statement in response from Mr Sankey, a financial investigator employed by the North Yorkshire Police.
11.
There are four categories of expenses for which a variation is sought. The first is expenditure in relation to a BMW X5 totalling £780.46 per month. This a second family car. The other is an A Class Mercedes purchased by HPL in March 2019, which AL says in his witness statement was for him. It is said that the family need two cars to manage their day to day routine when HPL is at work. AL and HPL have had the BMW from new in 2012, when it was worth some £49,000, under successive financing agreements. The penultimate financing agreement, expiring in August 2018, had a final hire payment of £16,000. The current hire purchase agreement dated 30 August 2018 provides that the cost of the vehicle is £16,000 plus interest of £1,456.76 which is to be paid by 36 equal monthly instalments of £484.91. Title remains with the finance company until the final payment, upon which title will transfer to AL. The terms permit AL to terminate the agreement at any time before the end of the three years; if he does so he is obliged to return the vehicle, and in addition to pay half the contract value (£8,728) to the extent that it has not already
been paid at the date of termination. The BMW is registered in HPL’s name as keeper and the insurance is taken out by her. The total variation sought is made up of the monthly finance payments of £484.91 plus running costs of £295.55 per month (£200 for fuel, £64.12 for insurance, £25.37 for road tax and £6.06 for breakdown cover).
12.
In Mr Sankey’s witness statement he observed that the value of the vehicle was no greater than the finance amount (as is evidenced by the fact that the final hire payment which secures purchase is the same as all the other monthly payments); he suggested that the car should be returned and a more modest vehicle purchased for about £6,000. At that stage the agreement had run for just under a year.
13.
The second category of expenditure for which a variation is sought comprises legal expenditure in relation to the civil proceedings. The amount currently sought is £3,000 which is the estimate which solicitors have given to the applicant for advice in relation to the offer to settle the outstanding claims, which is on potentially attractive terms.
14.
The third category is the sum of £8,154.58
spent on
home improvements to the kitchen in the Spanish property. These were paid for by HPL as a result of a loan to her by Lloyd’s Bank Plc drawn down in 2015. The loan was repaid by her to the bank in instalments totalling £3,039.40 between June 2018 and March 2019; and by a lumpsum payment of £5,115.18 on 9 April 2019 to discharge the balance of the loan.
15.
The fourth category comprises living expenses of £48,700. This is the total amount of what are said to have been eight loans made by family and friends between July 2017 and March 2018 on the basis that they were rendered necessary to cover living expenses by the delay in the sale of the pension property and are repayable following its sale.
The Judgment
16.
HHJ Carr held that that the living expenses applications in categories 1, 3 and 4 were seeking repayment of loans from unsecured creditors, and as such were impermissible by reason of the decision of this court in
Director of the Serious Fraud Office v Lexi Holdings Plc
[2009] QB 376
; and in the alternative that the expenses were not reasonable. This latter finding was stated simply as a conclusion without reasons, save in respect of the motoring expenses for the BMW, which the Judge indicated he treated as unreasonable for the reasons set out in Mr Sankey’s statement. As to category 2, the £3,000 sought for legal expenses, he held that a variation was precluded by s. 41(4) of the 2002 Act which forbids provision for legal expenses which “relate to” the offence which gives rise to the restraint order; he held that the civil action fell within that prohibition because it has its factual origins in the fraud which is the subject matter of the criminal prosecution.
17.
The arguments for the parties have to some extent changed shape over the course of the appeal, but the Respondent seeks to uphold the result reached by the Judge, in part for different reasons.
The statutory provisions
18.
The 2002 Act provides two broad methods by which a defendant may be stripped of the proceeds of crime. One is by the making of a confiscation order, which is governed in England and Wales by Part 2 of the Act. The other is by way of a recovery order, which is governed in England and Wales by Part 5 of the Act. They differ in a number of significant respects.
19.
A confiscation order under Part 2 is an order for payment of a specified sum. Its amount is calculated as the greater of the benefit obtained by the defendant from criminal conduct and the amount of the assets available to the defendant to pay it (ss. 6 to 10A). Confiscation orders provide for a period of imprisonment in default of payment in the same manner as a fine (s. 35). In the event of non-payment, a confiscation order may be enforced by the appointment of receivers over realisable property (ss. 48-57), or by obtaining realisable property under powers of search and seizure (ss. 47A-S). Realisable property includes the defendant’s own property and tainted gifts, that is to say gifts by the defendant after a date 6 years before prosecution for the offence, or at any earlier time if the result of criminal conduct, unless a court has held that the defendant does not have a criminal lifestyle, in which case gifts since the date of commission of the offence are caught (ss. 77 and 83).
20.
Section 40 enables a restraint order to be made in five circumstances, the two principal ones being where there is a criminal investigation with regard to an offence (s. 40(2)) and where proceedings for an offence have been commenced (s. 40(3)), and in each case there is reasonable cause to suspect or believe that the defendant has benefitted from his criminal conduct.
21.
Section 41 grants power to make a restraint order in order to preserve assets for the purposes of a confiscation order being satisfied. Such an order may be made in advance, as commonly occurs, for the purposes of satisfying a confiscation order if and when made. The section provides in relevant respects:
“41 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.
(2)
A restraint order may provide that it applies—
(a)
to all realisable property held by the specified person whether or not the property is described in the order;
(b)
to realisable property transferred to the specified person after the order is made.
(2A) A restraint order must be made subject to an exception enabling relevant legal aid payments to be made (a legal aid exception).
(2B) A relevant legal aid payment is a payment that the specified person is obliged to make—
(a)
by regulations under section 23 or 24 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and
(b)
in connection with services provided in relation to an offence which falls within subsection (5),
whether the obligation to make the payment arises before or after the
restraint order is made.
(3)
A restraint order may be made subject to other exceptions, and an exception may in particular—
(a)
make provision for reasonable living expenses and reasonable legal expenses;
(b)
make provision for the purpose of enabling any person to carry on any trade, business, profession or occupation;
(4)
But where an exception to a restraint order is made under subsection (3), it must not make provision for any legal expenses which—
(a)
relate to an offence which falls within subsection (5), and
(b)
are incurred by the defendant or by a recipient of a tainted gift.”
22.
Section 42(5)(b) provides that the court may vary a restraint order upon the defendant’s application.
23.
Section 69(2) provides that the powers under s. 41 and 42 to grant and vary a restraint order (and other powers):
“(a) must be exercised with a view to the value for the time being of realisable property being made available (by the property’s realisation) for satisfying any confiscation order that has been or may be made against the defendant;
(b)
must be exercised, in a case where a confiscation order has not been made, with a view to securing that there is no diminution in the value of realisable property;
(c)
must be exercised without taking account of any obligation of the defendant or a recipient of a tainted gift if the obligation conflicts with the object of satisfying any confiscation order that has been or may be made against the defendant;”
24.
Section 69(2)(a) and (b) has come to be known as the “legislative steer”, namely that the value of the realisable property should be maintained to be available to meet a confiscation order, insofar as that is reasonable bearing in mind that the defendant may not be convicted and that, unlike the jurisdiction in civil freezing order injunctions, there is no cross undertaking in damages: see the description by Mr John Laws as counsel approved by Lord Donaldson MR in
In re Peters
[1988] 1 QB 871 at p. 879G.
25.
A confiscation order is not proprietary in nature. It does not confer a proprietary interest in any property. It is for a specified sum and may be enforced against any realisable property whether or not the latter constitutes the proceeds of crime. Nor, however, is it the same as a personal debt or money judgment. It ranks ahead of other unsecured creditors in a number of ways. Section 69(2)(c) provides that all the relevant powers, which include those of enforcement, must be exercised without regard to obligations to unsecured creditors. Sections 417 and 418 of the Act exclude property which is the subject matter of a restraint order or otherwise recoverable in confiscation proceedings from the estate of a bankrupt, and so such assets are unavailable for distribution to unsecured creditors of a bankrupt; and there are equivalent provisions in relation to the assets of a corporate defendant in liquidation in s. 426 of the Act. In calculating the “available amount” under s. 9, there is no reduction in the calculation of the value of the defendant’s assets to take account of debts to unsecured creditors. Moreover s. 58 provides that once a restraint order in support of a future confiscation order is in place, no distress may be levied against realisable property, nor may any tenancy of premises be forfeited without the court’s consent, and courts may stay any other proceedings in respect of any property which is the subject of the restraint order. In these ways the debt constituted by a confiscation order is afforded priority over those owed to unsecured creditors generally.
26.
Recovery proceedings under Part 5 of the Act, on the other hand, are akin to proprietary proceedings. That Part permits civil proceedings to be brought by the enforcement authority in the High Court to recover property obtained through unlawful conduct, whether or not criminal proceedings are brought for an offence in connection with the property (ss. 240, 241). The relief granted is a recovery order which vests title in particular property in the trustee for civil recovery. Interim protection is available in the form of a property freezing order as well as other forms of interim relief (s. 245A). The provisions concerning living and legal expenses in relation to property freezing orders under Part 5 do not mirror those applicable to restraint orders in support of confiscation proceedings under Part 2. In particular, there is no equivalent to s. 41(4) rendering impermissible legal expenditure related to the offence; on the contrary the court is required to take into account the desirability of the defendant being represented in the recovery proceedings: see s. 245C(6) and s. 252(4). The legislative steer is also in different terms: s. 245C(8) provides that the power to make exclusions from the property freezing order is to be made be made with a view to ensuring so far as practicable that the satisfaction of the right of recovery is not “unduly prejudiced” and is expressly subject to subsection (6) (i.e. the desirability of legal representation in the recovery proceedings).
Reasonable living expenses
27.
The first issue of principle is what criteria to apply in determining whether living expenses are “reasonable” within the meaning of s. 41(3)(a). On behalf of the appellant, Mr Douglas-Jones QC submits that a defendant is entitled to maintain the same lifestyle as he enjoyed prior to the restraint order, subject only to a qualification that he may be restricted from enjoying a “Rolls Royce” or “extravagant lifestyle”. On behalf of the CPS, Mr Talbot QC submits that the subsection imposes an objective standard which is not dictated by the previous lifestyle but must take into account a range of factors, of which previous living standards are only one.
28.
Some assistance on this issue may be found in the approach to living expenses allowances in other restraining orders, including in particular (1) non-proprietary civil freezing orders (2) proprietary civil freezing orders and (3) property freezing orders under Part 5 of the 2002 Act.
Non-proprietary civil freezing orders
29.
The Court of Appeal has recently confirmed in
Vneshprombank LLC v Bedzhamov
[2019] EWCA Civ 1992
that a defendant facing a non-proprietary civil freezing order
is entitled to living expenses set at a level which reflects his ordinary level of spending prior to the order, even if such expenditure is “by any normal standards quite extraordinary”. In that case £120,000 per month was allowed. Males LJ identified at paragraph 68 the important points of principle supporting that conclusion.
The nature of the freezing order jurisdiction is to restrain threatened
unjustified
dissipation, that is to say “taking steps outside the ordinary course which will have the effect of rendering any judgment unenforceable: subject to this a defendant should be entitled to do what he wishes with his own money.” A freezing order is not intended to constrain an individual defendant from conducting his personal affairs in the way he has been accustomed to conduct them, providing of course that such conduct is legitimate. In this respect there is no difference between personal expenditure and business expenditure. If the defendant is not threatening to change the existing way of handling his assets, it will not be sufficient to show that such continued conduct would prejudice the claimant’s ability to enforce a judgment. That would be contrary to the purpose of the freezing order jurisdiction because it would require defendants to change their legitimate behaviour in order to provide preferential security for the claim which the claimant would not otherwise enjoy.
Proprietary civil freezing orders
30.
In the case of a proprietary freezing order the position is different. In such a case, if the claimant establishes a good arguable case that the assets which the defendant is seeking to spend on living or legal expenses belong not to the defendant but to him, it is the purpose of the injunction to protect the claimant from the prejudice he will suffer from the dissipation of the assets if he makes good his proprietary claim at trial. The approach in such cases is that set out in
Marino v FM Capital Partners Ltd
[2016] EWCA Civ 130
at paragraphs 18-23. Where the claimant has an arguable proprietary interest in funds in the hands of the defendant, the defendant who has funds of his own unaffected by such claim is required to use such unaffected funds to finance legal proceedings and meet his living expenses:
Sundt Wrigley & Co v Wrigley
CA unreported 23 June 1993;
Fitzgerald v Williams
[1996] QB 657; and
Marino
at paragraph 18. Where however he has no such unaffected assets “a difficult and anxious judgment” has to be made, in the words of Sir Thomas Bingham MR, whereby the balance of justice must be weighed between on the one hand allowing the defendant to expend funds which might belong to the claimant and on the other hand refusing to allow the defendant to spend funds which might belong to him:
Marino
at paragraphs 22-23. That may very well involve restricting a defendant to a reduced standard of living from that previously enjoyed, even where it cannot be shown that his previous lifestyle was maintained as a result of using the claimant’s assets.
Property freezing orders under Part 5 of the 2002 Act
31.
In
Director of the Assets Recovery Agency v Creaven
[2006] 1 WLR 622
, Stanley Burnton J addressed the principles applicable to a property freezing order under Part 5 of the 2002 Act. Whilst recognising that a Part 5 claim for a recovery order was sui generis and differed from a civil proprietary claim in that the defendant has no personal liability if he disposes of the property, he held that the principles to be applied to exclusions from property freezing orders under the Act should be the same as for civil proprietary freezing orders because of the proprietary nature of the recovery order being sought: see paragraphs 21 to 23. Henderson J endorsed this approach in
Serious Organised Crime Agency v Szepietowski
[2010] 1 WLR 1316
at paragraph 40 of his second judgment, stating that such a claim is clearly akin to a proprietary claim. I would respectfully agree.
Restraint orders
32.
What then of the approach to living expenses under restraint orders? They cannot be equated with proprietary claims since they are made in support of confiscation orders which create personal obligations. Nevertheless there are important distinctions from non-proprietary civil freezing orders which render the approach in such cases inapposite:
(1)
In relation to non-proprietary civil freezing orders one of the principal considerations dictating that the defendant may continue to enjoy his previous lifestyle is that the order is not intended to confer security or an advantage over other unsecured creditors. Confiscation orders, on the other hand, do more than create purely personal rights akin to those of other unsecured creditors: they rank ahead of other unsecured creditors, as ss. 58, 69(2)(c), 417, 418 and 426 demonstrate.
(2)
The amount of a confiscation order is limited by the size of the defendant’s remaining assets at the date of the making of the order, because however great the benefit obtained from criminal conduct the recoverable amount is limited to “the available amount”. Therefore by disposal of assets prior to the making of a confiscation order, a defendant can directly reduce the amount of his confiscation liability, in just the same way as a defendant to a Part 5 recovery claim can do so by disposing of the property. This is very different from the position of a defendant to a non-proprietary civil freezing order, whose disposition of his own assets cannot affect the extent of his liability. There is a real risk of injustice if a defendant can reduce the extent to which he can be ordered to confiscate the proceeds of crime by spending on living expenses an amount which is not subject to some objective limit of reasonableness.
(3)
The legislative steer in s. 69(2) requires the court to promote the preservation of assets so as to render them available to meet a confiscation order. That statutory objective is defeated rather than served by permitting a continuation of a previous lifestyle which reduces the amount available below that which would obtain by the imposition of some objective standard of reasonableness, merely because it was that to which the defendant was previously accustomed.
(4)
Moreover it would seem to us to be contrary to the whole scheme and purpose of the 2002 Act to allow a person who acquires a lavish lifestyle through criminal activity to avoid having to disgorge such proceeds by arguing that he should be permitted to consume those assets at the rate dictated by his lavish criminal lifestyle whilst under investigation or awaiting conviction, merely on the grounds that such was the lifestyle to which he had become accustomed. One of the considerations in determining whether a lifestyle should be maintained at a particular level must surely be the extent to which it is or appears to be the result of criminal activity.
33.
There are obvious difficulties in attempting a definition of an objective standard of reasonableness in relation to living expenses. Members of the public who themselves enjoy different standards of living will have different perspectives. Moreover any decision on what is reasonable for a given defendant is fact sensitive to the particular circumstances in which that defendant, and those for whom he may legitimately claim to have financial responsibility, find themselves. We do not therefore attempt any definition of reasonableness or seek to identify prescriptive principles. However it may assist those who have to make these assessments if we identify the following list of non-exhaustive factors which are potentially relevant to the fact sensitive decision in each case:
(1)
Whether the payment is necessary or desirable to improve or maintain the value of assets available to meet a confiscation order.
Clearly it is a fulfilment of the legislative steer in s. 69(2) if the expenditure is likely to preserve or enhance the value of realisable assets available for confiscation.
(2)
The defendant’s assets in relation to the size of any likely confiscation order.
If it is clear that the level of expenditure sought will not diminish the value of the restrained assets below the likely level of a confiscation order, it is difficult to see how the expenditure could be characterised as unreasonable; allowing the expenditure would not interfere with the statutory purpose of the restraint order. There will be many cases in which it impossible to make the comparison because of the difficulty in trying to predict the likely extent of a confiscation order. Nevertheless it may be possible and appropriate in some cases.
(3)
The standard of living enjoyed by the defendant prior to the restraint order.
This is not determinative, and as we have endeavoured to explain, there is no entitlement to maintain such lifestyle merely because it is that which has previously been enjoyed. Nevertheless it must be kept firmly in mind that a restraint order will usually be made before the defendant has been convicted of any offence. It can be made when there is merely an investigation, in which case he may never be charged with an offence. If charged, he may be acquitted. The living expenses which he is to be allowed must give some weight to the fact that if innocent of any offence he would be entitled to continue to maintain his existing lifestyle.
(4)
Affordability: the defendant’s means at the time of the restraint order or variation application
. When the restraint order is made, or a variation being considered, a defendant may by dint of events connected to the facts being investigated, or which give rise to charges, have a reduced income and be facing a more uncertain financial future than that enjoyed in the past. Some objective assessment of what is reasonable can be made on the basis of what expenditure someone in those circumstances and with those resources might reasonably be expected to make. In other words affordability is a factor which can inform what is reasonable. A defendant may be in a position to make payments from capital, but a reasonably prudent person in his position, with his finances and uncertainties, would be expected to pare down spending rather than use up capital. To take an extreme example, a defendant facing years in prison might be inclined to spend all his capital to avoid it being confiscated when he would act more prudently if he had only his own future enjoyment of the assets to think of. That is not to say that drawing on capital will necessarily be unreasonable, even if it is not reflective of previous practice. The defendant’s downturn in financial fortunes may itself be the result of the criminal accusations, and an innocent defendant may expect his finances to improve again when acquitted. This must be kept in mind when addressing affordability. Nevertheless the uncertainty of the defendant’s financial future can inform the answer to the question what a reasonable person would spend in his or her situation.
(5)
The period of the restraint
. A reduction in living standards may be more reasonable for a short period than for a longer one. What it may be reasonable to expect a defendant to put up with in the face of an imminent trial or confiscation hearing may not be reasonable for a defendant who faces a lengthy period of investigation before even being told whether charges will be brought, and if they are, a further delay before conclusion of the trial and any confiscation proceedings.
(6)
Whether there is a prima facie case that the existing standard of living is the result of criminal activity; and if so, what standard of living would be enjoyed but for such criminal activity
. As we have already observed, it would be inconsistent with the purpose of the 2002 Act to treat a level of expenditure as reasonable if it were itself the result of criminal activity. That may appear to be the case when a restraint order is made or during its existence, notwithstanding that criminal liability will only be definitively established at trial. We are not suggesting that whenever dealing with the amount of living expenses allowances there should be a detailed examination of the strength of the prosecution case. However we can envisage cases in which this may be a powerful factor. Suppose, for example, that a person has for years led a very modest existence, but is charged with drug dealing over a two year period in which he has suddenly acquired a very extravagant lifestyle without any avowed or credible means of support other than the drug dealing which forms the subject matter of the investigation or prosecution which has given rise to the restraint order. That will be a factor tending to suggest that the appropriate level of expenditure permitted should be commensurate with his earlier modest lifestyle.
(7)
The amount of the expenditure sought: an absolute level of unreasonableness.
As Mr Douglas-Jones accepts, there is a level of expenditure which is above any objective standard which could be described as reasonable, irrespective of previous spending patterns. We do not think epithets such as “a Rolls Royce lifestyle” are helpful. What one is searching for by way of a cap is a level which is inconsistent with the statutory objective of preserving assets so far as possible for the purposes of enforcement of a confiscation order, taking into account the other factors which fall to be taken into account.
Living expenses incurred on credit: the scope of the principle in
Lexi Holdings
34.
As is now conceded by the CPS, the fact that living expenses are incurred on unsecured credit does not of itself prevent them being permitted under a restraint
order pursuant to s. 41(3) (a) of the 2002 Act. It would lead to absurd results if it did. Many ordinary and reasonable living expenses are incurred on unsecured credit. That is the position, for example, when food, clothes, or other necessaries are bought with a credit card. So too heating and lighting is often secured on credit, as are mobile phones.
35.
The decision in
Lexi Holdings
does not suggest otherwise. In that case the court was concerned with a (partly) unsecured creditors’ claim arising from a default judgment for causes of action in breach of fiduciary duty and constructive trust. The factors which persuaded the court that there was no power to permit payment of unsecured creditors by way of variation of a restraint ordered are set out at paragraphs [83] to [86] of the judgment. The essential reasoning is that a confiscation order takes precedence over unsecured creditors in the way I have described above, so that a restraint order designed to preserve the position must also be made or maintained with a view to achieving the same objective. That reasoning simply does not apply to debts incurred for the purposes of reasonable living expenditure. It is clear from s. 41(3)(a) itself that it is consistent with the purposes of the Act that reasonable living and legal expenses may be permitted (subject to s. 41(4) in the case of legal expenses).
36.
Keene LJ addressed an argument at paragraph 87 that s. 41(3) showed that there was no general bar on repayment of unsecured creditors, in particular because they might have lent money to enable the carrying on of a trade. He distinguished the position of living and legal expenses from other liabilities on the grounds that the court could control such expenditure ex ante. He thereby recognised that living and legal expenses would not be precluded merely because they were by incurred by way of unsecured credit.
The other available assets principle
37.
There is a well established principle applicable to civil freezing orders, both proprietary and non-proprietary, that where a defendant has assets available to meet living or legal expenses which are not caught by the restraint, he is expected to resort to that availability and he will not be allowed, to that extent, to draw on the restrained assets; it applies to unrestrained assets of the defendant himself, where the freezing order covers only part of his assets; and it extends to the availability of support from family, friends, or associated companies or business interests, where the restraint is over all the defendant’s assets. See for example
A v C (No 2)
[1981] QB 962
;
Atlas Marine v Avalon (No 3)
[1991] 1 WLR 917;
Sundt Wrigley
;
Fitzgerald v Williams
;
Ostrich Farming Corporation v Ketchell
CA 10 December 1997; and
Marino v FM Capital
.
38.
The principle applies if the funds are
in practice
available to the defendant from others; it is not necessary that the defendant should have any legal or beneficial interest in them or legal right to call for them: see
Browne v Browne
[1981] FLR 291
,
Atlas Marine v Avalon (No 3),
Director of the Serious Fraud office v X
[2005] EWCA Civ 1564
at [38] and [43]; and
Serious Organised Crime Agency v Azam
[2013] 1 WLR 3800
at [63].
39.
The defendant bears an evidential burden or a burden of persuasion in relation to the unavailability of other assets. In the context of a property freezing order under Part 5
of the 2002 Act it was summarised in the following terms at paragraph 66 of
SOCA v Azam
:
“66 Accordingly, it seems to me that the position is as follows:
(1)
It is for the applicant to show that, in all the circumstances, it is just to permit him to use funds which are subject to the PFO in order to pay his legal expenses.
(2)
If on the evidence the court is satisfied that there are other available assets which may be used for this purpose, to whomsoever they may belong, it will not allow the affected assets to be used.
(3)
If the court is not satisfied of that, the court has to come to a conclusion as to the likelihood that there are other available assets on the basis of the evidence put before it. If the evidence leaves the court in doubt, but with specific grounds for suspicion that the applicant has not disclosed all that he could and should about his assets, then it may resolve that doubt against the applicant, as it did in
Director of the Serious Fraud Office v X
[2005] EWCA Civ 1564
. But if the evidence does not provide any such specific indications or grounds for suspicion, then even if the court rejects the applicant s evidence as unreliable, it may not have any adequate basis for concluding that there are other available assets. In that case (Mrs Azam’s application being an example) the court should not resolve the impasse against the applicant on the basis that it was for him to prove positively the absence of available assets. There may be objective factors which cast light on the probabilities one way or the other, as there were in the case of Mrs Azam. But if there is nothing of that kind, and nothing which indicates the existence of unexplained or undisclosed available assets, then the fact that the applicant has previously concealed relevant assets is not sufficient by itself to show that he is still concealing such assets, and thereby to deprive him of the ability to use his own assets, despite the constraints of the PFO, to defray the cost of legal representation to defend himself in the proceedings. I would therefore reject the proposition that there is a specific burden of proof on the applicant which requires him to prove that there are no other available assets which could be used for the relevant purpose, such that if he does not discharge that burden, his application must fail.”
40.
In
SFO v X
the other assets principle was held to be applicable to the provisions in the Criminal Justice Act 1998 which were the statutory precursor of the confiscation provisions in Part 2 of the 2002 Act. Mr Douglas-Jones accepted that the principle applies to restraint orders under s. 41 of the 2002 Act. He was, in our view, right to do so. He disputed, however, that it has any application on the facts to the variations sought in this case.
Section 41(4): legal expenses
41.
Section 41(4) contains an absolute prohibition on permitting expenditure on “legal expenses related to the offence”. Mr Talbot submits that this is wide enough to encompass expenditure in relation to any civil proceedings where they are concerned with the same or similar allegations as the alleged facts of the offence giving rise to the restraint order. Mr Douglas-Jones submits that they do not extend beyond the confiscation proceedings themselves and proceedings consequent thereon such as
those relating to restraint orders. In this he is supported by written submissions on behalf of Mr Golding, who is subject to a restraint order in other unrelated proceedings, which are concerned with the affairs of London Capital & Finance Ltd. We permitted Mr Golding to intervene in order for submissions to be made on his behalf, because in the week before the hearing of the appeal an application was made to Her Honour Judge Taylor at Southwark Crown Court to vary the restraint order in his case to permit substantial expenditure in parallel civil proceedings. His application raised the same point as to whether such a variation was precluded by the terms of s. 41(4). HHJ Taylor adjourned the hearing to await the outcome of this appeal.
42.
We have concluded that s. 41(4) provides no bar to permitting reasonable legal expenditure in civil proceedings merely because they engage in whole or in part the same factual inquiry as will be engaged in the trial of the offence which gives rise to the restraint order. We emphasise at the outset that our conclusion that s. 41(4) does not prohibit such expenditure does not mean that it will always be allowed. On the contrary, it merely means that any such application calls for the exercise of a discretion. That exercise will always require weight to be given to the objective of preserving assets to meet a confiscation order and the legislative steer in s. 69(2) of the Act. That may justify a refusal to permit the expenditure, particularly where the countervailing factors are weak, as for example where the defendant’s interests in the civil proceedings can be adequately protected by his legally represented codefendants. Where the discretion is exercised in favour of permitting some expenditure, the court will be able to exercise a measure of control in advance over the nature and extent of the permitted spending, and can make successive orders tailored to the developing course of the civil proceedings. The Judge managing the civil proceedings will often be able to deal with variation applications by reconstituting himself/herself as a Judge of the Crown Court when doing so, as this court described may be appropriate in
Re Stanford
[2011] Ch 33
at paragraphs 210211. A stay of the civil proceedings may also be available under s. 58(5) of the 2002 Act. The effect of the CPS’s argument, on the other hand, is that s.41(4) provides an automatic bar, so that the discretion cannot arise.
43.
There are a number of reasons for our conclusion that such an argument must be rejected.
44.
First, it puts a strained and unnatural gloss on the language of the statute. The subsection talks simply of expenses related to the offence. It does not talk of expenses incurred in proceedings which engage an overlapping factual inquiry with the offence.
45.
Secondly, the construction advanced by the CPS would have the effect of frustrating rather than fulfilling the purpose of the statute. The defendant might be a claimant, or a Part 20 claimant, in the civil proceedings, seeking to make a recovery; and so seeking to spend money with the objective of swelling the pool of assets amenable to satisfaction of a confiscation order. It is not difficult to imagine how such circumstances might obtain where the offence is a fraud and the defendant seeks contribution from third parties. To take another example, a defendant may be facing a civil claim from a claimant who is asserting a proprietary right over an asset; the effect of defeating the claim would be to preserve the asset as part of his realisable assets under the 2002 Act. It is not difficult to envisage and multiply other examples in which the legal expenditure may be for the very purpose of preserving or increasing
the assets which will then be available to meet a confiscation order. Yet if Mr Talbot be right, the court has no discretion to further the statutory purpose in this way.
46.
Thirdly, we see real difficulties in the practical application of the construction advanced by the CPS. The ingredients of civil proceedings will rarely mirror exactly the criminal allegations constituting the offence. So, for example, where the offence concerned is fraud, the civil causes of action may include misrepresentation, unlawful means conspiracy, other economic torts, negligence, breaches of fiduciary duty, and constructive trust liability for dishonest assistance or knowing receipt. These will inevitably raise some different factual issues. It is a common experience that civil proceedings often involve additional transactions to those in related criminal proceedings. Criminal proceedings may reflect the overall criminality in specimen charges. Civil claims seeking compensation must prove all the breaches said to have caused damage. Some aspects of the series of events in question may not constitute criminal behaviour but nevertheless give rise to civil liability. What then is the degree of overlap which is necessary to engage the bright line exclusionary rule suggested by the CPS argument? Is one overlapping issue or area of factual inquiry sufficient to engage it (and if so which), even if the civil proceedings are concerned in their majority with other unrelated transactions or issues? Mr Talbot’s answer when pressed in the course of argument was that any degree of overlap was sufficient unless it could be characterised as de minimis. This is a conclusion which would be unjust, and is unsupported by the language of the statute. There is no principled reason why a person facing investigation for an offence, with which he may not be ever be charged, should be mandatorily precluded from spending
any
of his assets on defending (or pursuing) civil proceedings which are very largely, although not exclusively, unrelated to the investigation. Such a restraint would be unfair. Moreover it would be an abuse of English to describe all the costs of such civil proceedings in which the issues were predominantly different as “legal expenses related to the offence”. If, as we have concluded, subsection (4) is not a complete bar, then the degree of overlap and amount of permitted expenditure can be determined in the exercise of a discretion. The CPS argument of absolute prohibition, however, precludes justice being done in this way.
47.
Fourthly, the case law supports this approach.
In re S (Restraint Order: Release of Assets)
[2005] 1 WLR 1338
, involved an application to vary a restraint order to allow for the legal costs of proceedings in relation to the restraint order itself. The court was concerned at the potential injustice of construing the subsection so as to deprive the applicant of the ability to fund the challenge to the restraint order. However it was persuaded that the legal expenses fell within the wording of the subsection by the fact that at the same time as the introduction of the subsection, there had also been introduced the right to legal aid for such proceedings; accordingly the policy reflected in the subsection was that legal aid should be the source of litigation funding in priority to the depletion of assets of the defendant: see paragraphs 41 to 47. This reflects the explanatory notes published in relation to s. 41 which include the following:
“Subsection (4) prevents funds under restraint from being released to the defendant or the recipient of a tainted gift for legal expenses incurred in relation to the offences in respect of which the restraint order is made. However public funding will be available to both instead.”
48.
It is the availability of such public funding which prevents the provision breaching Article 1 of the First Protocol to the European Convention on Human Rights and Article 6 thereof, as this court held in
R v AP; R v Utd
[2001] EWCA Crim 3128
;
[2008] 1 Cr App R 39
. In civil proceedings such public funding is not generally available.
49.
Mr Talbot relies on that case as supporting his argument, on the grounds that the application of the subsection to the particular facts relating to U Ltd involved extending it to civil proceedings by way of judicial review. The relevant facts were that the restraint order was granted in support of investigation into an offence arising out of the transfer of €7m by U Ltd, which described itself as a money transmitting business, to an account held by a customer at the London branch of a bank. The bank made disclosure of the transaction to the Serious Organised Crime Agency (“SOCA”), pursuant to the money laundering regulation framework, together with a request to be permitted to continue to provide facilities to U Ltd, which SOCA refused. The judicial review proceedings were a challenge to that decision by SOCA and were initiated before the restraint order was made. At paragraph 33 the court concluded that the legal expenses for the judicial review proceedings in relation to the disclosure reports by the bank were “related to” the money laundering offences whose investigation gave rise to the restraint order because “the disclosure reports were triggered by the transactions which were suspected of being part of such a scheme” so as to provide a sufficiently clear connection between the offence and the judicial review proceedings.
50.
That aspect of the decision does not in our view assist Mr Talbot’s argument. The subject matter of the judicial review proceedings was the SOCA decision to refuse permission to continue facilities because of suspected money laundering; that was a decision taken in exercise of powers related to investigation of money laundering offences, and it was the criminal investigation into the same money laundering which constituted the offence which gave rise to the restraint order. Although judicial review proceedings are civil in nature, the challenge was in substance to the criminal investigation process and parasitic upon it. The case provides no authority that the subsection applies generally to civil proceedings which are independent of the criminal inquiry or process.
51.
Fifthly, this approach is supported by the contrast with s. 245C which applies to recovery proceedings under Part 5. It provides:
“245C Exclusions
……
(3) An exclusion may, in particular, make provision for the purpose of enabling any person—
(a)
to meet his reasonable living expenses, or
(b)
)to carry on any trade, business, profession or occupation.
……….
(5)
Where the court exercises the power to make an exclusion for the purpose of enabling a person to meet legal expenses that he has incurred, or may incur, in respect of proceedings under this Part, it must ensure that the exclusion—
(a)
is limited to reasonable legal expenses that the person has reasonably incurred or that he reasonably incurs,
(b)
specifies the total amount that may be released for legal expenses in pursuance of the exclusion, …..
(6)
The court, in deciding whether to make an exclusion for the purpose of enabling a person to meet legal expenses of his in respect of proceedings under this Part—
(a)
must have regard (in particular) to the desirability of the person being represented in any proceedings under this Part in which he is a participant, and
(b)
must, where the person is the respondent, disregard the possibility that legal representation of the person in any such proceedings might, were an exclusion not made, be made available under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 or funded by the Department of Justice.
…..
(8) The power to make exclusions must, subject to subsection (6), be exercised with a view to ensuring, so far as practicable, that the satisfaction of any right of the enforcement authority to recover the property obtained through unlawful conduct is not unduly prejudiced.”
52.
In civil recovery proceedings under Part 5, therefore, legal expenses are expressly permitted in respect of the recovery proceedings themselves and the legislative steer is in favour of enabling legal representation, and of it being paid for out of the defendant’s own assets rather than from public funds by way of legal aid. If the statutory purpose expressed in Part 5 is that it is permissible to exclude from a property freezing order legal expenses on the basis that it is desirable that the defendant should be represented in those civil recovery proceedings at his own expense, the position is a fortiori in relation to independent civil proceedings.
The resolution of the issues in the appeal
53.
We turn to the application of these principles to the variations which are the subject of the appeal.
BMW motoring expenses
54.
The Judge was wrong to treat the finance payments as impermissible on the grounds that the finance company was an unsecured creditor. In fact the finance company was not a creditor at all in relation to the monthly payments, which only fell due each month in advance, but only so in relation to the early termination penalty, which constituted a contingent debt on termination less than halfway through the 36 month term. But in any event, the payments would not fall foul of the principle in
Lexi Holdings
. Running a car may constitute a reasonable living expense and what is known as PCP (Personal Contract Purchase) is a common method of buying cars on financing terms. If the expenditure would otherwise constitute a reasonable living expense it is potentially allowable under s. 41(3)(a) even if it involves credit. Mr Talbot conceded as much on behalf of the CPS.
55.
Nevertheless we think the Judge was right to conclude that this expenditure should not be allowed for two reasons, each of which is sufficient.
56.
The first is that given by the Judge, relying on the evidence of Mr Sankey. The latter explained that the capital value of the car was no greater than the amount of the finance charges, so that this was not a case in which by making the payments, AL would be increasing the asset value available to meet a confiscation order by securing a residual value in excess of the payments. The Judge was entitled to take the view that retaining this BMW, in addition to a relatively new A Class Mercedes, was not reasonable and that its replacement by a more modest vehicle was justified. Mr Douglas-Jones suggested that there was a smaller sum now left by way of outstanding instalments (the amount was not precisely identified because there had been a repayment holiday due to COVID-19). However the question falls to be resolved by reference to the position at the time the Judge made his decision. Mr Douglas-Jones also submitted that terminating the agreement would deprive AL and HPL of the legitimate benefits of the relatively large initial deposit made to secure a future right to the equity in the car and to preserve a guaranteed minimum at the conclusion of the contract, and the continuing payments made in the knowledge of how reliable the car was, that the mileage was accurately recorded on the odometer and how the car had been maintained and driven throughout its life. The former is undermined by Mr Sankey’s conclusions about the value of the car under the final financing agreement, and the latter is not a benefit which renders it reasonable to permit a second vehicle to be retained by unreasonably high payments.
57.
The second reason why no variation should be permitted is that AL has available assets to fund the financing payments and running costs of the car, because his wife will in practice do so if there is no variation. This is the conclusion to be reached from the evidence put forward on his behalf. AL married HPL in 2001. When their daughter was born in 2005 HPL gave up full time work and became an employee of BBT earning salary and dividends. Following the collapse of BBT she went back to full time work in merchandising in February 2017 and her earnings have grown to about £600 per month. It was she who funded the kitchen improvements to the Spanish home. It was she who paid £42,860 towards AL’s costs of the civil proceedings between October 2016 and February 2017. It was she who took out loans and received funds from family and friends to supplement their living expenses. It is she who has been paying the financing instalments and motoring expenses for the BMW since the restraint order. The picture which emerges is that the marriage is one in which they have each contributed to the expenditure according to their means and abilities from time to time. AL’s evidence does not reveal the extent of HPL’s capital or savings. It must have been significant prior to receipt of the proceeds of sale from the matrimonial home in March 2019 because it enabled her, for example, to pay over £40,000 of his legal fees at a time when she was not working or was earning a very modest income. AL’s evidence does not reveal the amount of the sale proceeds of the matrimonial home, half of which were paid to HPL. It is to be inferred that they were substantial: the couple paid just under £300,000 for the house in 1998, all but the
£20,000 deposit being by way of mortgage. Judicial notice can be taken of the fact
that house prices have typically risen very substantially over that period. Accordingly, and applying the evidential approach identified in paragraph 66 of
Azam
, there are strong grounds for concluding that if the variation is not made, HPL will continue to fund the motoring expenses from her own resources, as she has been to date. AL has failed to show that he is unable meet the expenditure without a variation of the restraint order.
Spanish kitchen home improvements
58.
These were in fact funded by HPL. AL says in his witness statement that historically he made the initial payments to Lloyds Bank under the loan although it was taken out in his wife’s name and that he would ordinarily have paid them from his income and more latterly his pension, so that they should be treated as loans to her from him. There is no real evidence that they can properly be treated as his liabilities: they were monies spent by HPL on a property in which she has a 50% interest. We would not regard them as reasonable living expenses, and they certainly do not, as AL contended, have the effect of enhancing the value of the Spanish property by an equivalent amount as an asset amenable to satisfaction of any confiscation order made. The property is not rented out and any capital value enhancement must be doubtful, only half of which in any event accrues to AL, since HPL is joint owner. But however that may be, the short answer to this aspect of the application is that the assets of HPL are in practice available to meet this expenditure. Indeed they have been made available by her for that purpose and spent by her.
Friends and family loans.
59.
The evidence on this aspect of the application is particularly unsatisfactory. Some alleged transfers are unsupported by any bank statement. Those which are so supported show transfers into HPL’s account. There are a number of letters purporting to confirm that the sums involved are loans, but not in all cases. The one for the largest loan, for £17,500, states that it is a loan to HPL alone, while the others suggest they are loans to both AL and HPL. The letters purporting to explain the payments as loans are all bar one after the date of transfer, and in most cases long after. The amounts are expressed in the letters to be repayable on sale of the commercial property, but there is no evidence of any request for repayment.
60.
Moreover, although the monies were said to be used for living expenses, there is no explanation of what they were in fact spent on and it is therefore impossible to assess whether such expenditure was reasonable.
61.
Accordingly there are several obstacles to these being the subject matter of a variation of the restraint order. First, what is sought is repayment of alleged loans by family and friends. This does fall foul of the
Lexi Holdings
principle. These are not living expenses incurred on credit from the suppliers of goods or services. They are (allegedly) third party loans. The third parties are unsecured creditors. Secondly, it is not possible to tell what these sums cover by way of expenditure and whether such expenditure is reasonable. The purposes of setting a limit on expenditure in an agreed sum in the restraint order is that the reasonableness of the expenditure can be assessed and authorised ex ante. In this case there is merely an assertion that sums which have been borrowed have been spent on unidentified living expenses,
in addition to
the sums specifically allowed by agreement by the restraint order. It is for AL to establish that such additional expenditure is reasonable which he cannot do without identifying what the sums were spent on. Thirdly, they fall foul of the other assets principle. They were funds made available by family and friends, and even assuming they were used for reasonable living expenses, they were therefore made available to AL for that purpose. The fact that some may have been on terms that they should be repaid does not assist AL: the repayment obligation, if it exists, can and will be met if at all by HPL, who in the largest loan is the sole debtor, is a joint debtor for the others, and who has available funds for this purpose applying the evidential approach in
Azam
.
Legal expenses
62.
For the reasons we have given the Judge was wrong to treat these as necessarily impermissible by reason of s. 41(4) of the Act. It is conceded by the CPS that they would be reasonably incurred and are reasonable in amount. The CPS did not object to the release of £3,000 for this purpose if we concluded that it was permitted by s. 41(4).
Anonymity
63.
Mr Douglas-Jones requested that this judgment be anonymised to conceal AL’s identity. We see no justification for doing so. Nothing we have said is capable of having an adverse effect on the fairness of his trial in the unlikely event that it should come to the attention of a juror. A desire on AL’s part to conceal details of his financial affairs from his co-defendants is no reason to depart from the important principle of open justice.
Conclusion
64.
Accordingly the appeal will be dismissed save to the extent that the Restraint Order will be varied to permit £3,000 to be paid in taking advice in relation to settlement of the civil proceedings. | {"ConvCourtName": ["Crown Court at Birmingham"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["fraud", "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 Birmingham"], "Sentence": ["The Restraint Order permitted AL to spend £250 per week"], "SentServe": ["data not available"], "WhatAncillary": ["The Restraint Order permitted AL to spend £250 per week"], "OffSex": ["his"], "OffAgeOffence": ["68"], "OffJobOffence": ["practised as an independent financial adviser"], "OffHomeOffence": ["matrimonial home was sold in March 2019 and AL and HPL moved into rented accommodation"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["from his clients"], "VictimType": ["BBL’s investors"], "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": ["letters"], "DefEvidTypeTrial": ["AL says in his witness statement"], "PreSentReport": ["data not available"], "AggFactSent": ["£15.25 million collected from investors"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["co-defendants Mr Shaw and Mr Bascombe."], "AppealAgainst": ["application to vary a restraint order granted"], "AppealGround": ["appeal raises issues of principle as to the scope of living and legal expenditure which should be permitted by restraint orders granted pursuant to s. 41 Proceeds of Crime Act 2002", "application of these principles to the variations which are the subject of the appeal"], "SentGuideWhich": ["s. 41 Proceeds of Crime Act 2002 (“the 2002 Act”)"], "AppealOutcome": ["appeal will be dismissed save to the extent that the Restraint Order will be varied to permit £3,000 to be paid"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we think the Judge was right to conclude that this expenditure should not be allowed"]} | {"ConvCourtName": ["Crown Court At Birmingham"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["theft", "fraud"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Birmingham"], "Sentence": ["The Restraint Order permitted AL to spend £250 per week"], "SentServe": ["data not available"], "WhatAncillary": ["The Restraint Order permitted AL to spend £250 per week"], "OffSex": ["All Male"], "OffAgeOffence": ["68"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Company"], "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": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["Financial gain/value"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["2"], "AppealAgainst": ["Other"], "AppealGround": ["appeal raises issues of principle as to the scope of living and legal expenditure which should be permitted by restraint orders granted pursuant to s. 41 Proceeds of Crime Act 2002", "application of these principles to the variations which are the subject of the appeal"], "SentGuideWhich": ["s. 41 Proceeds of Crime Act 2002 (“the 2002 Act”)"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we think the Judge was right to conclude that this expenditure should not be allowed"]} | 171 |
Neutral Citation Number:
[2007] EWCA Crim 1249
Case No:
200602233 B4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
His Honour Judge Moss Q.C.
T20057511/7362/0086
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
25/05/2007
Before :
LORD JUSTICE MOORE-BICK
MR JUSTICE DAVID CLARKE
and
MRS JUSTICE SWIFT DBE
- - - - - - - - - - - - - - - - - - - - -
Between :
THE QUEEN
Respondent
- and -
JERRY STEPHENS
and
SANDRA MUJURU
Appellants
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
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- - - - - - - - - - - - - - - - - - - - -
Mr. G. Ross
for
Jerry Stephens
Mr. Brendan Finucane Q.C.
for
Sandra
Mujuru
Mr. David Fisher Q.C.
and
Mr. Hugh Davies
for the
Crown
Hearing dates : 26
th
April 2007
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Moore-Bick :
1.
The appellants in this case were charged on an indictment containing 15 counts. Those that are of particular relevance to this appeal related to injuries caused by the appellant Stephens, to a 4½ month old child, Ayesha, the daughter of his then partner, the appellant Sandra Mujuru. Although the child bore the surname Stephens, she was in fact Miss Mujuru’s child by a previous partner and unrelated to Stephens himself. Stephens had a son, Marcus, by a former partner, Miss Susan Muthoni. Marcus lived with his mother, but Stephens had supervised contact with him through the Social Services. Marcus and his mother lived within easy travelling distance of Stephens and Miss Mujuru.
2.
Following their separation there were frequent disputes between Stephens and Miss Muthoni over his access to Marcus in which social workers, health visitors, the police and other agencies became involved. At one stage, Marcus was placed on the child protection register.
3.
On three occasions between 11
th
and 30th November 2002 Stephens assaulted Marcus causing the child minor injuries. On the first of those occasions he deliberately scratched both of the child’s cheeks, later saying that the wounds had been caused by the baby crying and rubbing its face whilst he was fetching its bottle. On the next occasion Stephens
deliberately caused a small bruise and a scratch to the child’s face. This time he said that the baby had fallen off a chair when he had left him alone in order to get some milk. On the third occasion he was found holding Marcus in the bedroom. There was blood coming from the child’s mouth and there was blood on the bedding. Stephens said that the boy had fallen down the stairs and injured his mouth, but when Marcus was examined by a doctor a small healing split on the inside of his upper lip was found which, in the doctor’s view, was typical of the injury caused when an adult feeding a baby with a bottle pushes the bottle into the baby’s mouth with some force. It was, therefore, a classic indication of a non-accidental injury of a kind that would have caused temporary pain and distress to the child lasting for some hours.
4.
Between February and April, 2005 Stephens committed a serious assault on Ayesha as a result of which she sustained a spiral fracture of the mid-shaft of the left humerus. Neither Stephens nor Miss Mujuru took any steps to obtain treatment for her, although in the view of the doctors it must have been clear that she was suffering considerable pain as a result of the injury.
5.
On 9
th
May 2005 Stephens was left alone at home to look after Ayesha when Miss Mujuru went to work. During the afternoon following a number of telephone conversations with a social worker concerning access to Marcus, he went off in a rage to the home of Miss Muthoni where he found her in the kitchen. He attacked her, kicking her on the head and striking her on the head with a frying pan and a vase. Miss Muthoni’s boyfriend, Winston Male, who was also in the house called the police. Miss Muthoni was taken to hospital suffering from a laceration to her right eyelid, bruising to her face and head, lacerations to the back of her head and injuries to her hands.
6.
Following the attack Stephens went to Kingston Police Station where he told the police that he wanted to be arrested for beating up and trying to kill his partner. He complained that he had not been allowed to see his son. He was arrested at the police station on a charge of causing grievous bodily harm to Miss Muthoni and while on the way to the hospital to obtain treatment for his own injuries, he told the police that he had left a five-month old baby alone at his girlfriend’s flat. He said that he did not know the address of the flat, but gave the police the name and whereabouts of the baby’s mother which enabled them to trace Miss Mujuru at her place of work. They took her back to the flat where they found Ayesha lying on her back in her cot with her eyes closed, tightly wrapped in a blanket and with a dummy in her mouth. Only her head was visible, and it was impossible for her to move her arms. She appeared to be cold. An ambulance was summoned and Ayesha was taken to hospital where she was pronounced dead. While they were waiting for the ambulance to arrive Miss Mujuru told the police that when she had left home for work at 11.45 a.m. that morning the baby had been fit and well and fast asleep. She confirmed that she had arranged with Stephens that he would look after the baby until she finished work at 7 p.m.
7.
The findings of a post mortem examination carried out on Ayesha indicated that she was a well-nourished baby of normal size for her age. She had a healed fracture of the mid-shaft of the left humerus which was about six weeks old. One of the expert medical witnesses said that it could have been caused by gripping the child with considerable force in the region of the left elbow and forearm, but would not have resulted from mere heavy-handedness or playful handling. She also had an old head injury demonstrated by a thin, old subdural haematoma and multifocal axonal injury in the brain and spinal cord possibly linked with some older haemorrhage in the eyes. There was also a recent head injury indicated by a fresh bruise under the skin of the scalp and severe bilateral fresh retinal and perineural haemorrhages.
8.
The Home Office pathologist concluded that Ayesha’s death had been caused by an injury to the brain resulting from a severe blow to the head. The presence of bruising to the scalp indicated a forceful impact against a hard flat surface, as if she had been picked up and swung against it. Death probably occurred almost immediately. He could not say whether the old injuries to the child’s arm, brain and spinal cord had all been caused at the same time or on different occasions.
9.
Stephens and Miss Mujuru were jointly indicted on charges arising out of the various matters to which we have referred. On 7
th
March 2006 at the Central Criminal Court before His Honour Judge Moss, Q.C. Stephens pleaded guilty to one count of assault occasioning actual bodily harm arising out of an assault on a friend of Miss Muthoni, Richard Jones, (count 3 in the indictment) and one count of cruelty to a person under 16 by wilful neglect arising out of his failure to obtain treatment for Ayesha’s broken arm (count 10). On 11
th
April 2006 he was convicted unanimously on a number of other counts, including another count of cruelty to a person under 16 arising out of the assaults on his son, Marcus (count 1), one count of common assault arising out of an assault on Miss Muthoni (count 2), one count of causing grievous bodily harm with intent arising out of the fracture of Ayesha’s arm (count 6), a count of murder arising out of the death of Ayesha (count 13) and one count of wounding with intent to cause grievous bodily harm arising out of the attack on Miss Muthoni on 9
th
May 2005 (count 15). He was sentenced to life imprisonment and ordered to serve a minimum period of 20 years (less the period of 11½ months he had spent in custody) and to various periods of imprisonment in respect of the other offences to be served concurrently with the life sentence.
10.
On the same occasion Miss Mujuru was convicted unanimously on one count of cruelty to a person under 16 by wilful neglect arising out of her failure to obtain treatment for Ayesha’s broken arm (count 10) and one count of causing or allowing the death of a child (count 12). She was sentenced on each count to a Community Order for 24 months concurrent with conditions of supervision and residence.
11.
Miss Mujuru appeals against conviction on count 12 by leave of the Single Judge who gave leave to argue only one of her grounds of appeal, namely, that concerning the correct interpretation of
s.5(1)
of the
Domestic Violence Crime and Victims Act 2004
. She also renews her application for permission to appeal on a second ground relating to the admission in evidence of certain witness statements in respect of which leave was refused.
12.
Stephens appeals against sentence by leave of the Single Judge.
Miss Mujuru
13.
Count 12 of the indictment charged Miss Mujuru with causing or allowing the death of a child contrary to
section 5(1)
of the
Domestic Violence, Crime and Victims Act 2004
, the material parts of which provide as follows:
“A person (“D”) is guilty of an offence if—
(a)
a child or vulnerable adult (“V”) dies as a result of the unlawful act of a person who–
(i)
was a member of the same household as V, and
(ii)
had frequent contact with him,
(b)
D was such a person at the time of that act,
(c)
at that time there was a significant risk of serious physical harm being caused to V by the unlawful act of such a person, and
(d)
. . . . . . . . . .
(i)
D was, or ought to have been, aware of the risk mentioned in paragraph (c),
(ii)
D failed to take such steps as he could reasonably have been expected to take to protect V from the risk, and
(iii)
the act occurred in circumstances of the kind that D foresaw or ought to have foreseen.”
14.
It was the prosecution case that Stephens was a violent and emotionally volatile person who in the past had harmed both his own son, Marcus, and Ayesha, whether out of frustration or vindictiveness, and who therefore posed a significant risk of causing serious physical harm to Ayesha if left alone with her for any length of time. The prosecution also contended that Miss Mujuru was aware both that he had been responsible for hurting Marcus and that he had caused the fracture of Ayesha’s arm by a deliberate act of some kind. Accordingly, it was said that she was aware that he posed a significant risk of serious physical harm to Ayesha and had failed to take such steps as she could reasonably have been expected to take to prevent it.
15.
On 10
th
and 11
th
May 2005 Miss Mujuru was interviewed by two Family Liaison Officers as a potential witness. In the course of those interviews she described various meetings and conversations she had had with Miss Muthoni at the beginning of April in which Miss Muthoni had told her that Stephens was “not a nice guy” and was “difficult to live with” and in which she implied that he might be difficult with a baby. Later in the same interview she said that Miss Muthoni had told her that Stephens had hurt Marcus many times and that on one occasion he had made him bleed. Miss Mujuru said that when she had asked Stephens about that he told her that the injury had been caused accidentally when he was feeding Marcus. Nonetheless, she accepted that she had become suspicious, despite his denials, and her answers tended to give the impression that she accepted that what Miss Muthoni had told her might be true. Moreover, in the course of the first interview one of the officers had asked her a direct question about Ayesha’s general state of health, to which she replied that she had always been fit and well. She said nothing about any trouble with her arm, or indeed any other injury.
16.
In June 2005 statements were prepared for Miss Mujuru on the basis of those two interviews. They were signed and dated 9
th
and 30
th
June respectively, but by that time the police had already started to suspect her of involvement in Ayesha’s death and she was interviewed again at length under caution on 7
th
and 12
th
July. Eventually she was arrested on 30
th
August and interviewed again. In the course of those later interviews Miss Mujuru admitted that Ayesha had hurt her arm and explained that Stephens had persuaded her not to take the child to hospital. She realised that if she had taken Ayesha to hospital questions might have been asked that might have led to his being taken into custody. She also said, however, that Stephens had told her that the injury to the child’s arm had been caused when he caught her as she was about to roll off the bed.
17.
At the trial the prosecution applied to put in evidence Miss Mujuru’s two statements and the transcripts of the interviews in May on which they were based, together with materials relating to the later interviews, for the purpose of showing that for some time prior to Ayesha’s death she had known that Stephens was liable to cause the child serious harm if he was left alone with her for any length of time. The application was opposed by her counsel on the grounds that at the time she gave those interviews she was a vulnerable person who did not have the benefit of legal advice or the support of a responsible adult and that it would therefore be unfair to admit evidence of what she had said insofar as it tended to incriminate her. He therefore asked the judge to exclude it in the exercise of his discretion under
sections 76
or 78 of the
Police and Criminal Evidence Act 1984
.
18.
In his ruling the judge found that at the time of the two interviews in May the police had no reason to suspect Miss Mujuru of being involved in any way in Ayesha’s death. He found that she had been interviewed as a potential witness in an appropriate way and that there had been nothing unfair about the way in which those interviews had been conducted. He therefore declined to exclude evidence of what had been said in the course of them. However, he found that by the time the witness statements were prepared the position had, or should have, changed in that there were by then grounds for suspecting her of involvement in Ayesha’s death. He considered that it was wrong to invite Miss Mujuru to sign witness statements when she was coming under suspicion in relation to the matters to which they referred. Moreover, the judge was concerned that she had not been provided with any disclosure prior to the interviews in July. He considered that the whole of the process following the interviews in May had been unfair and he therefore excluded the remainder of the evidence in the exercise of his discretion under section 78 of the Police and Criminal Evidence Act.
19.
Miss Mujuru’s first ground of appeal is that the judge was wrong to admit evidence of the two interviews that took place in May 2005. The single judge refused leave to appeal on this ground and she therefore renews her application before us.
20.
Mr. Finucane Q.C. submitted that the admissions made by Miss Mujuru in the course of those interviews amounted to confessions within the meaning of
section 76
of the
Police and Criminal Evidence Act 1984
. He submitted that at the time her age, the shock following the very recent death of her baby and her relationship with Stephens made her vulnerable and that she did not receive the degree of support to which she was entitled. It would be unfair, ,therefore to allow her answers to be used against her.
21.
The critical questions, it seems to us, are whether Miss Mujuru was mentally vulnerable in any relevant sense at the time of the interviews and whether at that stage the police suspected, or should have suspected, that she had been involved in some way in Ayesha’s death. The judge held a voir dire in the course of which he heard evidence from the interviewing officers and psychiatrists called by the prosecution and the defence. He reached the conclusion that Miss Mujuru’s mental condition was not such as to prevent her understanding the significance of what was said to her or of questions she had been asked. Mr. Finucane accepted that she was not mentally vulnerable in the technical sense, but he submitted that she was mentally vulnerable in the ordinary sense of that expression and should have had the support of a sympathetic and responsible adult who, among other things, could have reminded her of her right to obtain legal advice. Her mother, who was present at the interviews, was not on particularly good terms with her and did not therefore adequately fulfil that role.
22.
We have no difficulty in accepting that on 10
th
and 11
th
May Miss Mujuru must have been suffering from a degree of shock and distress, as was no doubt apparent to the interviewing officers who conducted the interviews in a sympathetic manner. However, it was important for the police to obtain such information as she could provide as early as possible in their investigation and we do not think they can be criticised for taking the course they did. The judge considered that the interviews had been conducted entirely appropriately and we agree. We do not think that the police had any reason to think that Miss Mujuru’s mother was unable to provide the degree of support she needed or that the absence of someone who might have been more sympathetic towards her made the process unfair. Mr. Finucane pointed out that a person interviewed as a witness, unlike a suspect, does not have the protection of being cautioned and thus of being reminded of the danger of withholding relevant information. That is true, but a potential witness can be taken to be aware of the importance of answering questions honestly and of not withholding information that he or she considers potentially important. It does not require a formal caution to alert a person to the risks that may arise as a result of failing to do so.
23.
As to whether the police had grounds on 10
th
or 11
th
May for suspecting Miss Mujuru of involvement in Ayesha’s death, it is important to remember that the death had occurred only the previous day at a time when she had apparently been out at work. There was no reason to think that she had been directly involved (as indeed she had not) and at that stage they knew nothing about the broken arm which was only discovered later as a result of the post mortem. Her answer to the question about Ayesha’s state of health must therefore have appeared perfectly innocuous and can have given no reason to think that she might be hiding something. We are satisfied that at the time of these first two interviews the police did not suspect Miss Mujuru of any involvement in Ayesha’s death, nor did they have any reason to do so. It would have been insensitive and wrong for them to have treated her as a suspect and to have cautioned her.
24.
The significance of Miss Mujuru’s answers given on 10
th
and 11
th
May only became apparent at a later date. Mr. Finucane did not seek to argue that they were not relevant and probative; the only question, therefore, is whether it was unfair in all the circumstances to admit them. In our view it was not and the judge was quite right to allow them to be put before the jury. Although those of her answers which tended to incriminate her amounted to confessions within the meaning of the Police and Criminal Evidence Act, they were not obtained by oppression or as a result of anything that might have tended to render them unreliable. The interview process as a whole was conducted fairly and we are therefore satisfied that the judge was quite right not to exclude the evidence under
section 78
of
the Act
. The renewed application for leave to appeal on this ground is therefore refused.
25.
At the end of the prosecution case a submission of ‘No case to answer’ was made on behalf of Miss Mujuru on the grounds that there was no evidence of a significant risk of serious physical harm to Ayesha within the meaning of
section 5(1)
(c) of the Domestic Violence, Crime and Victims Act and no evidence that she was, or ought to have been, aware of any such risk. Mr. Finucane submitted that “significant” in that context bore its ordinary meaning , but the judge expressed the view that it meant simply “more than minimal” and rejected the submission.
26.
Prior to the summing up both counsel addressed the judge on the directions to be given to the jury. Mr. Finucane again submitted that they should be directed that a “significant risk” denoted more than a mere possibility of occurrence and carried with it the idea of something noteworthy or of considerable amount or importance, in accordance with the definition in
The Oxford English Dictionary
. In support of that proposition he relied on the decision in
Lang
[2005] EWCA Crim 2864
,
[2006] 1 W.L.R. 2509
. The prosecution (then, as now, represented by Mr. Fisher Q.C.) appear to have agreed that the word “significant” should be given its natural meaning and to have supported the suggestion that the jury should be directed in accordance with
Lang
. However, the judge adhered to the view he had previously expressed and told them that the word “significant” in this context meant “more than minimal”. In due course the jury convicted Miss Mujuru.
27.
Mr. Finucane submitted that the judge’s direction was wrong and did not reflect the correct meaning of
the Act
. By directing the jury that the risk was to be regarded as significant if it was more than minimal he had set the threshold too low, thereby leaving it open to them to convict Miss Mujuru on an improper basis.
28.
Although he had supported Mr. Finucane’s submission at the trial that the jury should be directed along the lines indicated in
Lang
, before us Mr. Fisher Q.C. drew attention to one matter in particular which he suggested the court might wish to take into account when deciding whether the judge’s direction was correct, namely, the different legislative context in which the expression is found in this case. In
Lang
the court was concerned with the construction of
sections 225
-229 of the
Criminal Justice Act 2003
which provide for the court to pass sentences of imprisonment for public protection and extended sentences of imprisonment on offenders who pose a significant risk to members of the public of serious harm through further offending. Since a sentence of imprisonment for public protection involves imprisonment for an indefinite period, it was obviously desirable for the court to give guidance to sentencing judges in terms which included a reminder of the ordinary meaning of the word “significant”, since, if the threshold were set too low, many more offenders might be sent to prison for an indeterminate period than Parliament had intended.
Section 5
of the
Domestic Violence, Crime and Victims Act 2004
, on the other hand, is intended to provide protection to children and vulnerable adults who are at risk of suffering serious physical harm at the hands of those with whom they live. It imposes criminal liability not only on those who cause death, but also on members of the same household who were aware of the risk and have failed to take reasonable steps to protect the deceased from it. It can be argued, therefore, that the purpose of the section would be better served by construing the word “significant” in a broader way.
29.
It is worth noticing that the court in
Lang
did not seek to give the word “significant” a meaning other than that which it ordinarily bears. It merely drew the attention of judges to its presence and to the ordinary meaning of the word as found in one of the most authoritative dictionaries of the English language. The purpose of doing so was simply to ensure that the presence of the word was not overlooked or its force minimised. In our view the word “significant” is an ordinary English word in general use and we see no reason to think that Parliament intended it to bear anything other than its normal meaning in the section now under consideration. In
Brutus v Cozens
[1973] A.C. 854
a protester interrupted a match at Wimbledon by stepping on to the court, blowing a whistle and throwing leaflets. Others then followed him carrying banners and placards and play was brought to a halt. The main protester was prosecuted under
section 5
of the
Public Order Act 1936
for using insulting behaviour likely to cause a breach of the peace. The magistrates dismissed the charge on the grounds that his behaviour was not insulting, but the Divisional Court held that any behaviour which affronted others and evidenced a disrespect or contempt for their rights was “insulting” within the meaning of that section. On appeal the House of Lords restored the magistrates’ decision on the grounds that it was a decision of fact as it would have been if a jury were called upon to decide whether a person had used insulting behaviour. Such a decision could only be challenged on the grounds that it was perverse.
30.
In his speech Lord Reid observed that the way in which the case had been formulated for the opinion of the court appeared to assume that the meaning of the word “insulting” was a matter of law, but he rejected that view in the following terms at page 861:
“In my judgment that is not right. The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the court will determine in other words what that unusual sense is. But here there is in my opinion no question of the word “insulting” being used in any unusual sense. It appears to me, for reasons which I shall give later, to be intended to have its ordinary meaning. It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved. If it is alleged that the tribunal has reached a wrong decision then there can be a question of law but only of a limited character. The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision.
Were it otherwise we should reach an impossible position. When considering the meaning of a word one often goes to a dictionary. There one finds other words set out. And if one wants to pursue the matter and find the meaning of those other words the dictionary will give the meaning of those other words in still further words which often include the word for whose meaning one is searching.
No doubt the court could act as a dictionary. It could direct the tribunal to take some word or phrase other than the word in the statute and consider whether that word or phrase applied to or covered the facts proved. But we have been warned time and again not to substitute other words for the words of a statute. And there is very good reason for that. Few words have exact synonyms. The overtones are almost always different.
Or the court could frame a definition. But then again the tribunal would be left with words to consider. No doubt a statute may contain a definition - which incidentally often creates more problems than it solves - but the purpose of a definition is to limit or modify the ordinary meaning of a word and the court is not entitled to do that.
So the question of law in this case must be whether it was unreasonable to hold that the appellant's behavior was not insulting. To that question there could in my view be only one answer - No.
”
Similar views were expressed by Lord Morris of Borth-y-Gest, Viscount Dilhorne and Lord Kilbrandon; Lord Diplock agreed.
31.
In our view there is nothing in the
Domestic Violence, Crime and Victims Act 2004
to suggest that the word “significant” as used in
section 5(1)
was intended to bear anything other than its ordinary meaning. It is an ordinary English word in common use and we do not think that it is any less intelligible to the average member of a jury than the word “insulting”. There may be room for disagreement in any given case about whether risk of serious physical harm to the deceased was or was not significant and, if it was, whether the defendant was or ought to have been aware of the fact, but the decision remains one of fact for the jury applying their collective understanding of the word “significant”. In our view, therefore, the judge was wrong to tell the jury that it means “more than minimal”; he should not have sought to define it, for the reasons given by Lord Reid in
Cozens v Brutus
and, if asked, should have told them to give the word its ordinary meaning.
32.
However, it does not follow that the conviction must therefore be regarded as unsafe. At the close of the prosecution case there was evidence before the jury capable of supporting a finding that Stephens had killed Ayesha by striking her head against a hard object or surface and that there was a very real risk that he might cause her serious physical harm, either deliberately or as the result of some minor act of violence intended to harm her in a less serious way. There was also evidence before the jury capable of supporting a finding that Miss Mujuru knew that Stephens had broken Ayesha’s arm, or had good reason to think that he might have done so, and that she was, or ought to have been, aware that there was a significant risk that he might deliberately harm Ayesha again. If they made those findings, the jury could go on to find that by leaving Ayesha in his care while she went to work Miss Mujuru failed to take such steps as she could reasonably have been expected to take to protect her. In our view, therefore, the judge was right to reject the submission of ‘No case to answer’ and leave the case to the jury. Moreover, this was not, in our view, a borderline case so far as the nature and magnitude of the risk to Ayesha was concerned. There was powerful evidence that Stephens did represent a considerable risk to the child: not only the broken arm, but also the other injuries discovered at the post mortem and his behaviour towards Marcus. There may have been more room for argument about Miss Mujuru’s awareness of the nature and gravity of that risk, but we do not think that by directing the jury that “significant” meant more than minimal the judge created a real danger of their convicting her when they would not otherwise have done so. We are satisfied in the light of the evidence as a whole that the conviction in this case is safe and that the appeal must be dismissed.
Stephens
33.
Stephens appeals against the minimum term of 20 years set by the learned judge pursuant to
section 269
and Schedule 21 of the
Criminal Justice Act 2003
.
34.
He is 38 years of age and had no relevant previous convictions. There were psychological and neuropsychological reports before the court indicating that he had mild learning disability and was impulsive and of impaired judgment with poor anger control. He had suffered a head injury in a road traffic accident many years before, following which he had received in-patient psychiatric care. Further neurological examination was recommended. However, the judge proceeded to sentence without further reports and in our view was entitled to do so. It seems to us that nothing in those reports substantially affected the decision on the minimum term to be served.
35.
In his sentencing remarks the judge described Stephens as a “self-centred and jealous man with a dangerously short fuse”. He accurately summarised the facts of this series of offences and took the entire history into account in fixing the minimum term. He rightly took a starting-point of 15 years and recognised that the lack of premeditation and the absence of an intention to kill were important mitigating factors. However, he also identified a number of very serious aggravating features and did so in terms which we cannot fault. The most important of these were the very young age of the victim (4½ months) and her consequent vulnerability, the gross breach of trust and the history of violence directed towards her.
36.
Mr. Ross submitted that the minimum term of 20 years set by the judge in this case was out of line with sentences passed in other similar cases and he drew our attention in particular to
Attorney General’s Reference No. 106 of 2004 (Shahajan Kabir)
[2004] EWCA Crim 2751
, [2005] 1 Cr.App.R.(S.) 120 in which a minimum period of 13 years set for the murder of a child aged 10 months was increased to 16 years. He also emphasised the absence of premeditation or of any intention to kill.
37.
We recognise that both lack of premeditation and the absence of an intention to kill may often provide considerable mitigation, but, as has been said on many occasions, each case must be considered on its own facts. It is interesting to note that in
Kabir
the court wondered whether an even higher figure would be appropriate before increasing the minimum term to 16 years in respect of a defendant who, unlike Stephens in this case, did not stand to be sentenced for any related offences. In
Peters
[2005] EWCA Crim 605
, [2005] 2 Cr.App.R.(S.) 101 this court explained in paragraphs 13-16 of its judgment why an intention to cause grievous bodily harm rather than to kill does not necessarily constitute significant mitigation. It is true that no weapon was used in this case, but the victim was a very young child who was deliberately harmed in a way that caused her death, and in our judgment this element is of little weight in the present case.
38.
Schedule 21 of the
Criminal Justice Act 2003
, which sets out the general principles to be applied when fixing the minimum period to be served, as well as examples of aggravating and mitigating circumstances, applied to this case by virtue of
section 269(5)
. The Schedule itself says nothing about the relevance of other offences, but
section 269(3)
provides that the minimum term is to be set by reference to the seriousness of the offence, or of the combination of the offence and any one or more offences “associated with it”. By virtue of
section 305
of
the Act
the provisions of
section 161(1)
of the
Powers of Criminal Courts (Sentencing) Act 2000
, which defines an “associated offence” as one in respect of which the offender is convicted in the same proceedings or in respect of which he is sentenced at the same time, applied in this case.
39.
In the light of the entire sequence of violent offences against Ayesha, Marcus and Miss Muthoni, all of which the judge was required to take into account, we cannot accept the submission that the minimum period set by the judge was manifestly excessive, and the appeal is therefore dismissed. | {"ConvCourtName": ["Central Criminal Court"], "ConvictPleaDate": ["7th March 2006"], "ConvictOffence": ["murder", "causing or allowing the death of a child", "common assault", "cruelty to a person under 16", "wounding with intent to cause grievous bodily harm", "assault occasioning actual bodily harm", "count of cruelty to a person under 16", "cruelty to a person under 16 by wilful neglect", "grievous bodily harm with intent"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["less the period of 11½ months he had spent in custody"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Central Criminal Court"], "Sentence": ["each count to a Community Order for 24 months concurrent with conditions of supervision and residence.", "sentenced to life imprisonment and ordered to serve a minimum period of 20 years (less the period of 11½ months he had spent in custody) and to various periods of imprisonment in respect of the other offences to be served concurrently with the life sentence."], "SentServe": ["each count to a Community Order for 24 months concurrent with conditions of supervision and residence.", "sentenced to life imprisonment and ordered to serve a minimum period of 20 years (less the period of 11½ months he had spent in custody) and to various periods of imprisonment in respect of the other offences to be served concurrently with the life sentence."], "WhatAncillary": ["data not available"], "OffSex": ["Miss", "his"], "OffAgeOffence": ["38 years of age"], "OffJobOffence": ["finished work"], "OffHomeOffence": ["flat"], "OffMentalOffence": ["learning disability and was impulsive and of impaired judgment"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["the daughter of his then partner"], "VictimType": ["child, Ayesha, the daughter"], "VicNum": ["child, Ayesha, the daughter"], "VicSex": ["child, Ayesha, the daughter"], "VicAgeOffence": ["4½ month old child"], "VicJobOffence": ["4½ month old child,"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["post mortem examination", "doctors"], "DefEvidTypeTrial": ["psychological and neuropsychological reports"], "PreSentReport": ["posed a significant risk of causing serious physical harm"], "AggFactSent": ["breach of trust", "very young age of the victim", "history of violence", "her consequent vulnerability,"], "MitFactSent": ["no relevant previous convictions", "absence of an intention to kill", "vulnerable person", "lack of premeditation"], "VicImpactStatement": ["data not available"], "Appellant": ["JERRY STEPHENSandSANDRA MUJURUAppellants"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence", "against conviction", "appeals against the minimum term of 20 years"], "AppealGround": ["admission in evidence of certain witness statements"], "SentGuideWhich": ["sections 76 or 78 of the Police and Criminal Evidence Act 1984.", "section 269 and Schedule 21 of the Criminal Justice Act 2003.", "s.5(1) of the Domestic Violence Crime and Victims Act 2004."], "AppealOutcome": ["appeal must be dismissed.", "therefore dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["satisfied in the light of the evidence as a whole that the conviction in this case is safe", "cannot accept the submission that the minimum period set by the judge was manifestly excessive"]} | {"ConvCourtName": ["Central Criminal Court"], "ConvictPleaDate": ["2006-03-07"], "ConvictOffence": ["causing or allowing the death of a child", "cruelty to a person under 16", "wounding with intent to cause grievous bodily harm", "murder", "grievous bodily harm with intent", "common assault", "count of cruelty to a person under 16", "cruelty to a person under 16 by wilful neglect", "assault occasioning actual bodily harm"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Central Criminal Court"], "Sentence": ["each count to a Community Order for 24 months concurrent with conditions of supervision and residence.", "sentenced to life imprisonment and ordered to serve a minimum period of 20 years (less the period of 11½ months he had spent in custody) and to various periods of imprisonment in respect of the other offences to be served concurrently with the life sentence."], "SentServe": ["Concurrent", "Concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["Mixed"], "OffAgeOffence": ["Don't know", "38"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Learning/developmental"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Female"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Child"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["No"], "ProsEvidTypeTrial": ["post mortem examination", "Medical"], "DefEvidTypeTrial": ["Mental Health / Insanity"], "PreSentReport": ["Don't know", "High risk of harm"], "AggFactSent": ["history of violence", "breach of trust", "her consequent vulnerability,", "very young age of the victim"], "MitFactSent": ["absence of an intention to kill", "lack of premeditation", "no relevant previous convictions", "vulnerable person"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeals against the minimum term of 20 years", "against sentence", "against conviction"], "AppealGround": ["admission in evidence of certain witness statements"], "SentGuideWhich": ["section 269 and Schedule 21 of the Criminal Justice Act 2003.", "sections 76 or 78 of the Police and Criminal Evidence Act 1984.", "s.5(1) of the Domestic Violence Crime and Victims Act 2004."], "AppealOutcome": ["Dismissed-Failed-Refused", "Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["cannot accept the submission that the minimum period set by the judge was manifestly excessive", "satisfied in the light of the evidence as a whole that the conviction in this case is safe"]} | 233 |
WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
NEUTRAL CITATION NUMBER:
[2021] EWCA Crim 655
CASE NO
201903299/B4
Royal Courts of Justice
Strand
London
WC2A 2LL
Tuesday 16 February 2021
Before:
LORD JUSTICE HOLROYDE
MR JUSTICE LAVENDER
MRS JUSTICE ELLENBOGEN DBE
REGINA
V
JOSHUA BECKFORD
__________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_________
NON-COUNSEL APPLICATION
_________
J U D G M E N T
MR JUSTICE LAVENDER: This is a renewed application for leave to appeal against the sentence of nine years' imprisonment imposed on the applicant on 24 July 2019 in the Crown Court at Harrow, following his conviction on 24 June 2019 on one count of conspiracy to rob, contrary to
section 1(1) of the Criminal Law Act 1977
, the single judge
having granted a short extension of time but having refused leave to appeal.
We gratefully adopt the single judge's summary of the offence and of the sentencing process.
He said as follows:
"3. The applicant's conviction arose out of an incident on 11 June 2017 when the complainant was robbed in his flat by four males including, on the prosecution case, the applicant's co-defendant, Beckford. The applicant was also present in the flat. The robbery included not only the theft of money and valuables, but also gratuitous violence against the complainant including having a kettle of boiling water poured over his face (albeit the applicant and his co-defendant played no part in this infliction of grievous bodily harm). The learned judge said:
'I don't sentence either of you on the basis that you were responsible for that pouring of the boiling water. However, and this is important, I note that you both continued carrying out the robbery after you had observed Mr Abayomi having had his flesh burned.'
4.
In his sentencing remarks, the learned judge stated:
'You, Ms James, were the architect of this mean plot and you, Mr Beckford, recruited the other people and you were one of the masked intruders yourself. Both category A, which has a suggested starting point after trial of eight years, with a range up to 10 years. In my view the nature of this offence and the evidence I heard at trial means the starting point is at the very top of that range of 10 years. There is little to choose from you in terms of your roles.'
5.
The learned judge presided over the trial, he heard the evidence, and he was in the best position to assess the relative culpability of the defendants. In my judgment, the sentence of 10 years before reduction for mitigation was wholly appropriate. In sentencing the applicant, the learned judge said:
'You, Mr Beckford, as I say, on licence with bad antecedents. You are currently serving a sentence for drugs offences. It is urged upon me that the sentence I pass today not be consecutive because that sentence is soon to expire, but your personal mitigation is that in the time you have been in custody I have read the letters from the prison staff, namely the deputy governor, or most importantly the deputy governor, and it seems you are making a real effort to put your life back on track and I also note that prior to this offence you were the victim of an extremely nasty stabbing in which you were injured but it hardly stopped you going on to commit this dreadful offence. So because of the personal mitigation I feel able in both of your cases to claw back from what I have taken as the starting point of 10 years' imprisonment in both your cases.'"
There are two proposed grounds of appeal. The applicant relies, first on, the judge's error in saying that the applicant was on licence when he was not and, secondly, on the alleged disparity between the applicant's sentence and the sentence of eight years' imprisonment
imposed on the applicant's fellow conspirator, Xinia James.
We have carefully considered all of the documents and considered afresh the merits of the proposed grounds of appeal, but we have come to the clear conclusion that the proposed grounds of appeal have no prospects of success for the reasons given by the single judge in
the passage we have cited and further in paragraphs 6 and 7 of his reasons:
"6. It is suggested that the learned judge erred in saying that the applicant was on licence. That may be true, but he was on bail, having been arrested on 16 March 2017 for possession of heroin with intent to supply, for which he was sent to prison for 4 years on 9 February 2018. In fact, mercifully, the learned judge did not order (as he could have done) the sentence for the offence of conspiracy to rob only to start once the sentence for possessing heroin with intent had been completed, but it started from the date of sentence. It is not reasonably arguable that the approach of the judge would or should have been any different had he not made that error.
7. The applicant's record was significantly worse than that of Ms James and her mitigation was significantly stronger as she had a very young child. In my judgment it is not reasonably arguable that the sentence of 9 years' imprisonment was manifestly excessive by comparison to the sentence for Ms James and leave to appeal is refused."
We add only this. In so far as it is alleged that Miss James' culpability was greater than that of the applicant, the judge had presided over their trial and was well-placed to assess their respective culpability. His assessment (which we have already quoted) that they both played a leading role and that there was little to choose between them is one which cannot
be impugned in this court. For those reasons we refuse this application.
Epiq Europe Ltd
hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400
Email: [email protected] | {"ConvCourtName": ["Crown Court at Harrow"], "ConvictPleaDate": ["24 June 2019"], "ConvictOffence": ["one count of conspiracy to rob,"], "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": ["nine years' imprisonment"], "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": ["data not available"], "VictimType": ["complainant was robbed"], "VicNum": ["complainant was robbed"], "VicSex": ["his"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["flat"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["violence against the complainant"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["masked", "recruited the other people", "money and valuables", "currently serving a sentence"], "MitFactSent": ["victim of an extremely nasty stabbing", "making a real effort to put your life back"], "VicImpactStatement": ["data not available"], "Appellant": ["applicant"], "CoDefAccNum": ["co-defendant, Beckford"], "AppealAgainst": ["leave to appeal against the sentence"], "AppealGround": ["alleged disparity between the applicant's sentence and the sentence of eight years'", "the judge's error in saying that the applicant was on licence"], "SentGuideWhich": ["section 1(1) of the Criminal Law Act 1977,"], "AppealOutcome": ["refuse this application."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["grounds of appeal have no prospects of success"]} | {"ConvCourtName": ["Crown Court At Harrow"], "ConvictPleaDate": ["2019-06-24"], "ConvictOffence": ["one count of conspiracy to rob,"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Harrow"], "Sentence": ["nine years' 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": ["Don't know"], "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": ["Testimony /witness"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["currently serving a sentence", "masked", "recruited the other people", "Financial gain"], "MitFactSent": ["victim of an extremely nasty stabbing", "making a real effort to put your life back"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["1"], "AppealAgainst": ["Other (e.g., application for extension of time to appeal)"], "AppealGround": ["alleged disparity between the applicant's sentence and the sentence of eight years'", "the judge's error in saying that the applicant was on licence"], "SentGuideWhich": ["section 1(1) of the Criminal Law Act 1977,"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["grounds of appeal have no prospects of success"]} | 306 |
Neutral Citation Number:
[2020] EWCA Crim 893
No:
201902889/B4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday 7 July 2020
LORD JUSTICE HOLROYDE
MR JUSTICE NICKLIN
MRS JUSTICE THORNTON DBE
R E G I N A
v
SHERYAR KHAN NAWAZ
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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 Kelly QC
appeared on behalf of the
Applicant
J U D G M E N T
1.
LORD JUSTICE HOLROYDE: This appellant, Sheryar Khan Nawaz, was convicted of an offence of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. His application for an extension of time to apply for leave to appeal against conviction was refused by the single judge. It is now renewed to the full court. He was sentenced by the trial judge, His Honour Judge Bury, to 10 years' detention in a young offender institution. He appeals against that sentence by leave of the single judge.
2.
We summarise the facts. For convenience, and meaning no disrespect, we shall for most part refer to persons by their surnames only.
3.
On the night of 30 October 2017, Nawaz and his friends travelled by car to a party. Nawaz had a distinctive haircut and was wearing a distinctive coat. In the early hours of the morning there was a confrontation between him and William Nicholson, then aged 19. It seems that Nicholson had been informed that Nawaz was carrying a knife. The prosecution case was that he told Nawaz either to put the knife on a table or to leave the party. Nawaz pushed Nicholson away. Nicholson pushed him back. Nicholson then felt a blow to his lower abdomen and struck Nawaz in the face. The blow which Nicholson had felt was in fact a stabbing with a knife. His evidence was that the person who was involved in this incident and the person who he struck in the face was the person who stabbed him. He said that he had seen Nawaz before, and he was able to describe him, to show police officers a Facebook picture of him and to pick him out at an identification procedure.
4.
Six prosecution witnesses gave evidence of the confrontation between Nicholson and Nawaz or its immediate aftermath. Four of them picked Nawaz out at identification procedures; two did not. Unsurprisingly, there were differences between their respective accounts.
5.
Shortly after the incident there was a further separate incident, said to amount to an affray, in which the prosecution alleged that Nawaz and two his friends, Mortimer and Omar, were involved.
6.
Nawaz's case was that he did not have a knife and did not inflict any injury on Nicholson.
Nicholson pushed one of Nawaz's friends and when Nawaz asked what his problem was, Nicholson had either punched or headbutted him on the nose. Nawaz had recently received treatment for an injury to his nasal area and the blow had caused him acute pain. He immediately moved away, and returned to the car in which a short time later he and his friends travelled home.
7.
It was thus admitted by Nawaz that there had been an incident between him and Nicholson in which Nicholson had either punched or headbutted him. Nicholson for his part always denied that he headbutted, but two of the prosecution witnesses gave evidence that he did.
8.
No knife was recovered either from the scene, or in the possession of Nawaz or any of his companions, or in the car in which they were travelling when stopped.
9.
In March 2019, Nawaz, Mortimer and Omar stood trial together in the Crown Court at
Kingston upon Hull. Nawaz was charged in count 1 of the indictment with wounding
with intent. All three were charged in count 2 with affray. All three were acquitted of that charge, Nawaz and Omar by direction of the judge, and we need say no more about it.
10.
Nawaz was represented at trial by Mr Iqbal QC. At the conclusion of the evidence the usual discussions took place between the judge and all counsel as to the appropriate directions of law. The judge initially felt that the case involved an issue of identification and that a
Turnbull
direction would be needed. Mr Iqbal QC explained however that Nawaz did not dispute that he was the man who had been at close quarters with
Nicholson. Nawaz accepted that witnesses correctly identified him as "the man who was in a scuffle". He may have swung out at Nicholson but there was nothing in his hand. No witness gave evidence of actually seeing a knife, save for one prosecution witness who had ascribed possession of the knife to a man wearing clothing different from that worn by Nawaz. The defence case was that Nawaz did not have a knife. It was suggested that after Nawaz had been struck in the face, another man might have run in to Nicholson and stabbed him. It was further the defence case that the prosecution witnesses had discussed the matter and had either deliberately or inadvertently persuaded themselves and each other that the stab wound was inflicted during the scuffle between Nawaz and Nicholson. There was, said Mr Iqbal, no identification issue, it was just that Nicholson was wrong about the stabbing. In those circumstances, Mr Iqbal did not seek a
Turnbull
direction.
11.
Counsel for the prosecution, Miss Alistari was content with that approach. The judge agreed. Now that he had heard clarification of how the defence case was put, he said:
i.
"It does seem somewhat artificial to give a Turnbull direction because it is not disputed that there was this confrontation between Mr Nicholson on the one hand and the defendant on the other.
The prosecution witnesses say that is when the stabbing occurred. The defence say no it did not occur then, it occurred a bit after, but not long after."
12.
In his summing-up, the judge directed the jury in accordance with the terms which had been discussed. He provided the jury with written copies of his directions. He left to them the alternative offence of unlawful wounding. He directed them that the first issue for them to decide was whether they were sure that Nawaz was the person who inflicted the injury. If they were, they would then have to decide whether they were sure he did so with the requisite intent.
13.
The jury retired to consider their verdict at 1037 on Thursday 7 March 2019. The judge had informed counsel but not the jury that he would not be able to sit on the following day.
14.
At 1546 he informed counsel that he had received a note from the jury indicating that they had reached a verdict on count 2 in relation to Mortimer and that "they would like some assistance on count 1." The jury were then brought into court and given a majority direction in what the transcript shows to have been conventional terms. They retired again, and at 1617 returned a majority guilty verdict.
15.
Fresh solicitors and counsel were subsequently instructed. Mr Kelly QC, to whom we are grateful, sought to advance three grounds of appeal against conviction in his written advice, but in his oral submissions limited himself to the first of those grounds.
16.
The first ground is that in a case in which the identity of the person who inflicted the wound was in issue, the judge erred in not giving a direction in accordance with
R v Turnbull
(1977) QB 224
. Mr Kelly submits that the judge was correct in his initial view that such a direction was necessary but was then wrongly persuaded not to give it. He argues that the submissions made by Mr Iqbal were mistaken. The nature of the defence case, that as a result of contamination prosecution witnesses had wrongly identified Nawaz as the stabber, merely emphasised that identification was in issue and the
Turnbull
direction was necessary. The essential error in Mr Iqbal's approach, submits Mr Kelly, was to separate out the issue of identification of the stabber from the issue of possible contamination between prosecution witnesses. They were, he argues, all part of what was at heart an issue of identification.
17.
We are grateful to Mr Kelly for his submissions on this point, but like the single judge we see no merit in this ground. The guidelines in
R v Turnbull
apply to cases which involve disputed identification evidence. True it is, as Mr Kelly submits, that there may be such a dispute even though a defendant's presence at the relevant scene is admitted. But everything depends on the true nature of the issues between the prosecution and defence in a particular case, and Mr Iqbal QC's analysis of the issues in this case was in our view correct. Nawaz did not challenge the identification of himself as the man involved in the only incident which Nicholson described. His challenge was as to what he did in that incident. It was common ground between Nicholson and Nawaz that there was a confrontation between them. Each of them spoke of a single incident which ended when Nicholson either punched or head-butted Nawaz in the face. Nicholson's evidence was that the stabbing occurred in that incident before he struck his blow. Nawaz's evidence was that it did not. It was accordingly the defence case that there must have been, by necessary inference, another incident a short time later in which someone else inflicted the wound. The issue was not one of identification but of what was done by the man correctly identified as Nawaz.
18.
The judge was clearly correct to conclude that a
Turnbull
direction would have been inappropriate and confusing to the jury. It was unnecessary and would have been unhelpful to direct the jury that when considering whether they were sure that the stabbing occurred during an encounter between Nicholson and Nawaz they must consider matters such as the quality of the lighting, or the terms of the first description which Nicholson gave of Nawaz, or other aspects of the
Turnbull
direction which Mr Kelly submits should have been given. It would have been wholly artificial to direct the jury as to whether there was other evidence capable of supporting Nicholson's identification of Nawaz when that identification was admitted to be correct.
19.
The second and third grounds advanced in writing contended that the jury had been placed under undue pressure to reach a verdict on 7 March 2019 and that the judge had made inappropriate and impermissible enquiry of the jury at the time of their deliberation. The basis on which those grounds were put forward in writing was that it was said to be "the recollection of the appellant and those present" that untoward events had occurred. Given that these grounds are no longer pursued, it suffices to say that appropriate enquiries were made on Mr Kelly's advice and that neither Mr Iqbal QC or his solicitor, nor prosecuting counsel, nor the relevant transcripts, provided any support whatsoever for the version of events which had been put forward. The written ground of appeal raised, we are bound to say, rather remarkable allegations. It has not however been pursued and
in the circumstances we say no more about it. It follows from what we have said thus far that we are satisfied that there was no arguable foundation for the second and third ground of appeal.
20.
The delay in making the application for leave to appeal against conviction was largely attributable to the need for the newly-instructed legal representatives to obtain transcripts. Like the single judge, we would have been prepared to grant the necessary extension of time if there had been arguable grounds of appeal against conviction. As it is, no purpose will be served by granting an extension of time to bring an appeal which has no prospect of success. The renewed applications in relation to conviction are accordingly refused.
21.
We turn to the appeal against sentence. The injury sustained by Nicholson was a three-centimetre oblique wound to the lower left abdomen which lacerated the muscle layers, reaching the abdominal cavity and perforating two sections of the small intestine. There was no significant bleeding externally, but Nicholson could see his intestine protruding through the wound. As he was being taken to hospital by ambulance he coughed, and further intestine protruded, which understandably caused Nicholson to fear that he might die. He underwent bowel surgery. Initial recovery of his intestinal function was slow. Nicholson remained in hospital until discharged on 6 November 2017.
22.
In victim personal statements dated 21 January 2018 and 13 February 2019 he indicated that he had been confined to bed for four weeks and off work for three months. As at the time of the later statement he remained unable to resume rugby or his previously frequent visits to the gym. At that time, well over a year after the incident, although he had made a substantial physical recovery, he was still suffering from impaired sleep, a loss of confidence, and anxiety in crowds or if someone made a sudden movement. We note that at the conclusion of the trial, when adjourning sentence, the judge indicated that whilst an updated victim person statement would be helpful, it was not essential because Nicholson "did tell us quite a lot about how it affected him during the course of his evidence."
23.
The appellant was nine days short of his 18th birthday at the time of the offence. He had no previous convictions but had received a juvenile caution on 21 February 2017 for a public order offence. It was submitted on his behalf that that caution arose from an incident which occurred because, not for the first time, he had been subjected to racial abuse. He came from a good family, was clearly very hard working and was about to take up a place at college to study architecture. The judge was provided with a large number of impressive testimonials from persons who know him well. They all spoke of their shock and sadness upon hearing of the offence which clearly was far removed from the character of the young man they know. There was clear evidence that despite his young age, the appellant was both active in various commercial activities, with others depending on him for their livelihoods, and would go to considerable lengths to help the homeless and other disadvantaged persons. Sadly, both his parents are in poor health and they have been subjected to racial abuse following their son's conviction. The appellant had been on bail for some 18 months pending trial and had led a law-abiding and very industrious life.
24.
The judge had to consider the Sentencing Council's Definitive Guideline on sentencing for offences of this nature. In his sentencing remarks he indicated that he placed this in Category 1 of that guideline. This was because there was higher culpability in that a weapon had been used and greater harm in that the injury was "serious in the context of the offence." The judge stated that it was a very serious aggravating feature that the appellant had travelled a distance of some 25 miles to the party carrying a knife which he was prepared to use if the situation arose. The evidence showed that at least one of his friends was aware that he was armed. As to the circumstances in which the incident between the appellant and Nawaz occurred, the judge said that Nicholson had been deputed by the host of the party to speak to the appellant in the terms which we have summarised. Nicholson, said the judge, "was less than polite, but was not threatening".
The appellant at that point had options to avoid a confrontation which he did not take. Instead, said the judge:
i.
"... you escalated the situation by pushing him. He pushed you back, and you then produced a knife and stabbed him in the abdomen. At first, he didn't appreciate he'd been stabbed and thought that you'd punched him, and he punched you back twice in the head, before collapsing on the floor of the garage."
25.
The stabbing had led to the flaring up of a fight involving a number of persons, and guests present at the party were very upset. The judge also referred to the fact that the appellant had successfully disposed of the knife.
26.
The judge took into account the appellant's young age at the time but said that on the evidence he was mature for his age and that only a limited reduction in sentence could be made on grounds of youth. He referred to what he described as the "truly impressive" set of references for someone who was still a teenager. He took into account that it would be the appellant's first experience of custody. He also took into account the effects that this offence has had and will continue to have on the appellant's family's health and businesses, and he recognised that a promising future had been blighted. The judge summarised his approach by saying that the nature of the offence and the injury caused, together with the aggravating features which he had identified, would have led to a notional sentence of about 14 years before taking account of mitigation. Taking into account the impressive features of the appellant's character and other matters of mitigation, he concluded that the appropriate sentence was one of detention for 10 years.
27.
It is submitted in this appeal that the judge erred in his assessment of the harm suffered by Nicholson. The wound, it is submitted, was not serious in the context of the offence. Mr Kelly emphasises in this regard that the range of injuries which may be caused by an offence of wounding with intent is a wide one and he argues that this case fell at the lower end of the range. It is further submitted, by reference to material culled from social media, that Nicholson had exaggerated the extent of any continuing anxiety and loss of confidence. It is conceded that the use of a weapon would be a factor indicating higher culpability, but Mr Kelly submits that the judge should overall have placed the offence into Category 2. He should have given greater weight to the appellant's youth. He should also have accepted the evidence given by one prosecution witness which pointed to Nicholson having headbutted the appellant before the appellant swung his arm in a movement which it is suggested must have been the stabbing. In this regard
Mr Kelly points to the indication in the guideline that "a greater degree of provocation than normally expected" is a factor indicating lower culpability.
28.
We have reflected anxiously on these submissions, acutely conscious of the young age of the appellant. The judge had seen and heard Nicholson give evidence at trial, including as to the continuing effects of his injury. The social media content which has been shown to this court does not in our view provide any basis for going behind the judge's assessment of the significance of those continuing effects. He was in our view entitled to find that the injury was serious in the context of the offence, although it can fairly be said that the injury fell towards the lower end of the range covered by that phrase. Further, we are unable to accept Mr Kelly's submission as to the provocation given to the appellant before the injury was inflicted. The passage which we have cited from the judge's sentencing remarks is in our view a clear finding of fact. The sequence of events was as Nicholson described, namely that it was not until after he had been stabbed that he delivered the blow which he described as a punch, but some witnesses described as a headbutt.
29.
It follows that the judge was entitled to place the offence into Category 1 with a starting point for an adult offender of 12 years' custody and a range from nine to 16 years. The use of a weapon and the seriousness of knife crime were reflected in that categorisation, but the judge was entitled to treat as an aggravating feature the fact that the appellant had gone to the party armed with the knife and the subsequent disposal of the knife was a further aggravating feature.
30.
There were however a number of important factors to be taken into account in the appellant's favour. Although mature for his age, he was still only 17 at the time of the offence. He had, as we have said, no previous convictions and was able to point to most impressive character evidence. A first experience of custody would inevitably be hard, but in his case it is made the harder by his knowledge of the great distress suffered by his family and by others who depended on him. We are told that he has become depressed in custody.
31.
The judge's approach was, as we have indicated, that the aggravating features justified an increase from the starting point up to 14 years, but that the mitigating features then brought the final sentence down to 10 years. The judge was clearly correct to conclude that after balancing the aggravating and mitigating features it was appropriate to move downwards from the adult starting point. The essential submission on behalf of the appellant is that he should have moved significantly further down. We acknowledge that the judge might have approached the matter somewhat differently. He might, for example, have treated the aggravating features of the offence as being counter-balanced by the fact that the harm caused was at the lower end of the scale, but he might also have been less generous than he was in the extent of the reduction he made to reflect personal mitigation.
32.
It is important to emphasise that the issue for this court is whether the sentence of 10 years' detention was in all the circumstances manifestly excessive. We are unable to say that it was. Accordingly, grateful though we are to Mr Kelly, the appeal against sentence must be dismissed.
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Email: [email protected] | {"ConvCourtName": ["Crown Court at Kingston upon Hull"], "ConvictPleaDate": ["March 2019,"], "ConvictOffence": ["wounding with intent"], "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 Hull"], "Sentence": ["10 years' detention in a young offender institution"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["His"], "OffAgeOffence": ["17"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["William Nicholson"], "VicNum": ["William Nicholson"], "VicSex": ["he"], "VicAgeOffence": ["19"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["identification procedure", "Six prosecution witnesses", "underwent bowel surgery"], "DefEvidTypeTrial": ["defence case was that Nawaz did not have a knife"], "PreSentReport": ["data not available"], "AggFactSent": ["aggravating feature that the appellant had travelled", "knife", "disposal of the knife"], "MitFactSent": ["appellant's character", "\"truly impressive\" set of references", "appellant's young age"], "VicImpactStatement": ["victim personal statements"], "Appellant": ["appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["extension of time", "against conviction", "against that sentence"], "AppealGround": ["he judge erred in not giving a direction in accordance with R v Turnbull", "the jury had been placed under undue pressure", "the judge erred in his assessment of the harm"], "SentGuideWhich": ["section 18 of the Offences Against the Person Act 1861", "Sentencing Council's Definitive Guideline"], "AppealOutcome": ["dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The judge was clearly correct to conclude that after balancing the aggravating and mitigating"]} | {"ConvCourtName": ["Crown Court At Kingston Upon Hull"], "ConvictPleaDate": ["2019-03-01"], "ConvictOffence": ["wounding with intent"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Kingston Upon Hull"], "Sentence": ["10 years' detention in a young offender institution"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["17"], "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": ["19"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Medical", "Six prosecution witnesses", "identification procedure"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["disposal of the knife", "Distance/location", "Weapon"], "MitFactSent": ["appellant's character", "\"truly impressive\" set of references", "appellant's young age"], "VicImpactStatement": ["Yes"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against that sentence", "Other (e.g., application for extension of time to appeal)", "against conviction"], "AppealGround": ["the judge erred in his assessment of the harm", "the jury had been placed under undue pressure", "he judge erred in not giving a direction in accordance with R v Turnbull"], "SentGuideWhich": ["Sentencing Council's Definitive Guideline", "section 18 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": ["The judge was clearly correct to conclude that after balancing the aggravating and mitigating"]} | 457 |
Neutral Citation Number:
[2023] EWCA Crim 181
Case No:
202202513 A2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT TEESIDE
HIS HONOUR JUDGE STEAD
T20217173
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
23 February 2023
Before :
LADY JUSTICE WHIPPLE
MRS JUSTICE CUTTS
and
HER HONOUR JUDGE ROBINSON
- - - - - - - - - - - - - - - - - - - - -
Between :
Anderson
Appellant
- and -
Rex
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Jonathan Harley
for the
Appellant
Respondent was not present or represented
Hearing dates : 16 February 2023
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
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.
HHJ Robinson :
Background
1.
This is an appeal against sentence brought with leave of the Single Judge. On 15 July 2022, the appellant was sentenced by His Honour Judge Stead at Teesside Crown Court to a total sentence of 8 years 10 months detention in a Young Offenders Institute for a total of 12 offences to which he had pleaded guilty at various stages. The sentences were as follows:
Indictment T20210299
A burglary contrary to
s.9(1)
(b) of the
Theft Act 1968
and an attempted burglary contrary to
s.1(1)
of the
Criminal Attempts Act 1981
, both non-domestic, committed on 2 November 2020: 8 months detention concurrent on both.
Committal for sentence S202100417
Two attempted burglaries contrary to
s.1(1)
of the
Criminal Attempts Act 1981
, both non-domestic, committed on 16 February 2021: 8 months detention concurrent on both.
Indictment T20217173
A series of offences all committed on 14 May 2021 –
a.
Burglary of a dwelling contrary to
s.9(1)
(b) of the
Theft Act 1968
: 4 months detention concurrent
b.
Dangerous driving contrary to
s.2
of the
Road Traffic Act 1988
: 12 months detention consecutive
c.
Having an article with a blade or point contrary to
s.139(1)
of the
Criminal Justice Act 1988
: 24 months detention concurrent.
d.
Two attempted robberies contrary to
s.1(1)
of the
Criminal Attempts Act 1981
: 67 months detention on both, concurrent to each other but consecutive to the other sentences.
e.
Unlawful wounding contrary to
s.20
of
the Offences against the Person Act 1861
: 19 months detention consecutive.
f.
Criminal damage contrary to
s.1(1)
of the
Criminal Damage Act 1971
: 1 month detention concurrent.
g.
Possession of an offensive weapon on school premises contrary to
s.139
A(2) of the
Criminal Justice Act 1988
: 3 months detention concurrent.
2.
The appellant was also sentenced for three traffic offences sent to the Crown Court under
s.51(11)
of the
Crime and Disorder Act 1998
, namely driving otherwise than in accordance with a licence contrary to
s.87(1)
of the
Road Traffic Act 1988
and Schedule 2 of the
Road Traffic Offenders Act 1988
, using a vehicle without insurance contrary to
s.143
of the
Road Traffic Act 1988
and Schedule 2 of the
Road Traffic Offenders Act 1988
and failing to provide a specimen for analysis contrary to
s.7(6)
of the
Road Traffic Act 1988
and Schedule 2 of the
Road Traffic Offenders Act 1988
: no separate penalty and licence endorsed on all three.
3.
There are two grounds of appeal: (1) the sentence of 67 months for the attempted robberies was wrong in principle, the offences being placed in the wrong category of the sentencing guideline, and manifestly excessive, and (2) the total sentence of 8 years 10 months was manifestly excessive.
The facts
Indictment T20210299
4.
At 11pm on Monday 2 November 2020, a dark coloured motorcycle with two males on it came to a stop on Cumbernauld Road in Thornaby outside the Premier Store. The two men approached the premises and forcibly lifted the metal shutter by approximately two feet. The first male then climbed underneath the shutter and tried the main door, which was locked and secured. That male then emerged, and the two men made their way back to the motorcycle and drove off (count 1).
5.
Shortly after 11.30pm the same evening three males broke into the One Stop Convenience Store on Trenchard Avenue in Thornaby. They were on the same motorbike as earlier. One of the males used an axe to smash the door window, allowing the other two to gain access. A bag was filled with cigarettes from behind the shop counter. Another of the males picked up a bottle of spirits before leaving. A total of £682.16 of stock was taken, including 66 packets of cigarettes valued at over £660. The shop suffered significant damage. The quoted cost for the repairs to the glass in the door was £500, and the value of the damaged shutters covering the door and cigarette cabinet was around £560 (count 2).
6.
The appellant was stopped by police and arrested early the following morning on 3 November wearing the same distinctive track suit bottoms as could be seen in CCTV of both offences. Footprints on the shop counter surface at the One Stop shop were forensically examined and matched shoes he was wearing on his arrest. He gave a no reply interview later that day and was released on bail. The appellant was 17 years of age at the time.
7.
On 22 April 2021 the appellant was sent a postal requisition, and on 27 May 2021 he was sent for trial by Cleveland Magistrates Court. He pleaded not guilty at the PTPH on 23 July 2021. He changed his plea to guilty at a FCMH on 31 August 2021.
8.
At 23.54 on 23 October 2020 there was a burglary at a Premier Store in Nunthorpe, Middlesborough. The appellant was suspected of being involved and was arrested and interviewed on 26 October to which he answered no comment. He was again released on bail. On 9 February 2021 he was charged with that offence, he attended Cleveland Magistrates Court on 25 February 2021 and was bailed to a hearing on 13 April. He did not attend this hearing and on 16 April he admitted an offence of failing to surrender. Much later, on 16 November 2021 he was sentenced for that offence to a fine of £120. It does not appear that the substantive charge of burglary was proceeded with.
Committal for sentence S202100417
9.
In the meantime, at 9pm on 15 February 2021, the owner of the Go Local store on Cumberland Road in Middlesbrough closed the shop. Shortly before 1.20 am on 16 February a resident from across the road observed the shop being broken into. The bottom half of the shutters were damaged and an attempt had clearly been made to gain entry. A review of CCTV revealed four males attempting to gain entry (offence 1).
10.
At 11pm on 15 February the Sainsbury’s store on Acklam Road closed for the night. Shortly after 1.30 am on 16 February the alarm was activated. A resident observed males attempting to gain entry. The shutters were damaged, as were the glass automated doors which were smashed and the metal poles holding metal panels were bent. It was apparent that a vehicle had been driven into the store. Behind the tills were smashed alcohol bottles. The store had to be closed for one day and the loss and damage was estimated at just under £16,000, plus the loss of a day’s trading amounted to £15,000 (offence 2).
11.
These offences were committed 4 days after the appellant turned 18 years of age. It is not clear how he was identified as being responsible for them or when he was charged. On 16 November 2021 he pleaded guilty to the offences at Cleveland Magistrates Court and was committed to the Crown Court for sentence in custody.
Indictment T20217173
12.
At about 6.30am on Friday 14 May 2021, Jessica Butler and her partner Lewis Thompson were disturbed by a number of men who were in the process of stealing from their house whilst they and their three young children were in bed. The men stole a quad bike and another bike belonging to their children. Mr Thompson chased the thieves off and there was a confrontation between them (aggravated burglary, count 2). Ms Butler’s Vauxhall Insignia motor vehicle was also stolen (theft, count 3). In due course the Crown offered no evidence against the appellant on both counts and not guilty verdicts were entered.
13.
At about 7.30am a Traffic Officer saw the Insignia being driven by the appellant. He followed it, illuminating his blue lights. The appellant accelerated away, quickly reaching speeds of 70 miles per hour on the streets around a housing estate, weaving and overtaking vehicles as he was being chased. He drove over a grassed area between two streets. He drove through several red lights and drove the wrong way down a one-way street. He drove onto the A66 heading west on the eastbound carriageway, causing other traffic to take evasive action. He left the A66 at the Marton Road interchange. At this point, one of the Officers following was able to see that there were two males in the front of the car. The appellant was laughing at the Police Officers and stuck his middle finger up at them as he drove down the slip road, again in the wrong direction. He continued to drive on the wrong side of the carriageway at speed, again at speeds of up to 70 miles per hour, until the Police lost sight of the vehicle (dangerous driving, count 4).
14.
On 1st July 2022 the appellant admitted the summary offences, related to the dangerous driving, of driving otherwise than in accordance with a licence, using a motor vehicle without insurance and failing to provide a specimen of blood for analysis.
15.
Returning to 14 May 2021, the appellant was next seen at Berwick Hills Primary School at about 8.45am when parents were dropping their children off. He was in possession of a kitchen knife (having an article with a blade or point, count 5) which he had stolen together with a coat from the house of Keith Miller, who lived near to the school, by entering the rear patio door mistakenly left unlocked (burglary, count 1). The knife had a 10 inch blade.
16.
The appellant attempted to steal cars belonging to Laura Grant (attempted robbery, count 6) and Emma Wright (attempted robbery, count 7). Ms Grant was in the process of getting her son out of the back of her car. She saw the appellant holding the knife close to his chest area. He tried to pull her away from the car by grabbing her arm and tried to climb into the rear passenger seat. She pushed her son into the car and pulled the appellant away from the car. The appellant said ‘please let me in’. He then opened the front passenger door and attempted to get into the car, again she pulled him out. As she was screaming someone came out from the school and the appellant ran across the road and tried to steal Emma Wright’s car. Ms Wright had just pulled up near the entrance to the school. As she was in the process of getting her two children out of her car, the appellant ran over to her, still holding the knife. He approached her and said something along the lines of “ere love, can you get me safe from these please”. She said “I’m just taking my kids to school, sorry”. The appellant then got in the driver’s seat of the car and sat there with the knife.
17.
At this point a member of the public came and tried to get the appellant out of the car using a metal pole which the appellant took off him. It is not clear whether this was Kayfee Hameed. In any event, Mr Hameed attempted to get the appellant out of the car and the appellant stabbed him twice; once in the hand and once in the leg. Mr Hameed had an elliptical skin tear to the lower third of his right lower leg. The injuries were treated with glue and steri-strips (unlawful wounding, count 8).
18.
Staff at the school began to lock down the school, ushering children and their parents into the buildings and locking the doors. The appellant got away from Mr Hameed and was then armed with the metal pole as well as the knife. He ran into the school grounds, chased by the group, and there was a stand-off for about ten minutes, with Mr Hameed trying to persuade the appellant to put down his weapons, two members of staff trying to stop the appellant from going near the buildings, and others trying to prevent the appellant from getting away. During this time the appellant used the metal bar to smash a window in one of the doors giving access to the school building (criminal damage, count 9, and having an offensive weapon on school premises, count 10). Eventually, Mr Hameed and other men with him were able to disarm and detain the appellant until the arrival of the police, who arrested the appellant. The appellant gave no comment in interview about those matters.
19.
On 17 May 2021 the appellant was sent for trial in custody. The appellant pleaded not guilty at PTPH on 23 July 2021 but changed his plea to guilty on 25 April 2022, the day of trial.
The sentence
20.
The crown put the non-domestic burglaries (and attempts) in category B culpability on the grounds there was some planning, and the group went equipped for burglary. The harm category varied and overall, the judge treated them as in category 2 harm. The starting point was 6 months custody with a range of a medium level community order and 1 years custody. The judge said the sentence after a trial for all 4 offences would be 10 months custody. Taking into account the appellant’s youth and pleas, he arrived at a sentence of 8 months on each charge to be served concurrently with each other.
21.
Turning to the offences on 14 May 2021, the judge said he was going to give the appellant 20% credit for his guilty pleas. He regarded the appellant’s driving as a “quite breath taking” piece of dangerous driving involving very high speeds of up to 70 miles per hour when people were going to work and school in the morning and driving the wrong way on the A66 dual carriageway. The judge regarded it as astonishing that he managed to avoid a collision with the potential for very serious personal injury. He took into account the fact that there was, in fact, no damage or injury, the appellant’s youth and totality. He said if the appellant had been tried for this alone, he would have imposed a sentence of 15 months after a trial. He reduced that by 20% for the appellant’s plea and imposed a sentence of 12 months. Given the separate nature of the offence he made it consecutive.
22.
There was a subsequent discussion with counsel and the clerk about the period for which the appellant should be disqualified from driving, the length of which was unclear. We return to this later. He also ordered the appellant to take an extended re-test.
23.
The judge treated the domestic burglary as lower culpability and category 3 harm with a starting point of a high-level community order and a range of up to 6 months. He said the sentence after a trial would have been 5 months, with credit for plea he imposed a sentence of 4 months. Taking into account totality he made the sentence concurrent.
24.
The sentence for possession of the knife would have been 30 months after a trial, the top of the range for a category 1A offence as the appellant had a knife in the vicinity of a primary school. That was reduced to 24 months taking into account credit for plea. He sentenced the appellant to 3 months on count 10 (having an offensive weapon on school premises) and 1 month on count 9 (criminal damage), all three sentences to run concurrently.
25.
As for the attempted robberies, he described these as ‘highly significant’. It was not pre-planned and he accepted the appellant’s explanation that he was trying to get away from people who were pursuing him in the belief he had committed the aggravated burglary. However, he took the view that the appellant produced a bladed article to threaten violence, by the brandishing of it rather than express threats, which was an essential element of the offences to which he had pleaded guilty. Therefore, he treated it as a high culpability offence in the sentencing guidelines for street and less sophisticated commercial robberies.
26.
The judge referred to the victim personal statements of the two mothers. Laura Grant had to take time off work, experienced panic attacks, took medication, was unable to take her son to school for a week and had been referred for therapy. Emma Wright was unable to park her car in the same place through fear and intended to have counselling. He regarded the impact as significant but not sufficiently so to place the offences in the highest category of harm and instead he placed them in category 2. The starting point was 5 years with a range of 4 to 8 years. The judge treated the fact that there were two offences but that they were attempts as balancing each other out. The appellant had some previous convictions for less serious offences, but the judge did not treat those as an aggravating factor. He said the sentence after a trial would have been 7 years which he reduced to 67 months with credit for plea. They were to run concurrently with each other but consecutively with the other sentences.
27.
The judge placed the unlawful wounding in category 3B on the grounds the harm was serious but not grave and involved use of a weapon. The starting point is 1 year with a range of up to 2 years. Taking into account that the appellant had stolen the knife, used it for other offending and carried it onto school premises and was using it against a person who was trying to stop him from further offending, he placed the offence at the top of the category range of 2 years and again reduced it for credit for plea to 19 months to run consecutively to the other offences.
28.
Thus, the total sentence was 8 months for the 4 burglary offences plus 12 months for the dangerous driving, 67 months for the attempted robberies and 19 months for the unlawful wounding with all other sentences concurrent. The total sentence was therefore 106 months, or 8 years 10 months.
The appeal
29.
Mr Jonathan Harley, who appeared before us and the judge below, made submissions in support of the two grounds of appeal: (1) the sentence of 67 months for the attempted robberies was too long because the judge wrongly placed the offences in category A2 of the sentencing guidelines instead of B2 and (2) the total sentence of 8 years and 10 months was manifestly excessive. He acknowledged that the appellant’s actions would have been unimaginably terrifying for Ms Grant, Ms Wright, their children and the other innocent bystanders at the school. However, the appellant’s actions were a reaction to being pursued by a group of armed men who had mistakenly identified him as someone involved in burgling one of their houses. The appellant’s rationale was always to protect himself although the appellant acknowledged that his actions went further than necessary.
30.
Mr Harley submitted that although the appellant had a knife, he did not issue verbal threats and he did not wield it in such a way as to threaten violence. The judge found high culpability by reason of the single factor in culpability A of the guideline, namely “Production of a bladed article or firearm or imitation firearm to threaten violence”. He submitted that the wording of this element of higher culpability is intended to cover situations in which a weapon is deliberately produced in order to issue a deliberate threat. Here, the appellant formed the intention to take the cars by force and indeed used force by wrestling with Ms Grant in order to get in the car but, contrary to the view taken by the judge, the production of the knife in this case was not intended as a threat and was not a necessary element of the offence of attempted robbery.
31.
On that basis the proper assessment of culpability is that it was medium because the case falls between categories A and C. He took no issue with the assessment of harm, so the case fell within category B2 where the starting point is 4 years with a range of 4 to 6 years. Therefore, he submitted that the judge’s approach was wrong in principle.
32.
Further, the appellant was 18 at the time of the offence and 19 at the date of sentence. His actions were essentially defensive, though excessively so, as he was being pursued by armed men. He has a poor record but not for violence. Mr Harley submitted that the total sentence of 8 years and 10 months was manifestly excessive in all the circumstances.
Discussion
33.
Mr Harley’s first ground challenges the sentence on counts 6 and 7. The culpability factors in the sentencing guideline for street and less serious commercial robberies are these:
A – High culpability
•
Use of a weapon to inflict violence
•
Production of a bladed article or firearm or imitation firearm to threaten violence
•
Use of very significant force in the commission of the offence
•
Offence motivated by, or demonstrating hostility based on any of the following characteristics or presumed characteristics of the victim: religion, race, disability, sexual orientation or transgender identity
B – Medium culpability
•
Production of a weapon other than a bladed article or firearm or imitation firearm to threaten violence
•
Threat of violence by any weapon (but which is not produced)
•
Other cases that fall between categories A or C because:
•
Factors are present in A and C which balance each other out and/or
•
The offender’s culpability falls between the factors as described in A and C.
C – Lesser culpability
•
Involved through coercion, intimidation or exploitation
•
Threat or use of minimal force
•
Mental disability or learning disability where linked to the commission of the offence
34.
Mr Harley criticised the judge’s finding that the culpability A factor ‘Production of a bladed article… to threaten violence’ applies in this case. In his oral submissions he accepted that by virtue of having the knife in his hand the appellant had ‘produced’ it. He also accepted that Ms Grant and Ms Wright would have felt threatened by the fact he was holding the knife. However, he submitted that before the offender can be said to have produced a bladed article to threaten violence he must intend to produce it for that purpose. As he put it, there must be an active rather than a passive threat with the weapon. In this case, the appellant did not intend by carrying the knife in his hand to threaten Ms Grant and Ms Wright. He had taken it in the earlier burglary in order to defend himself, if necessary, from the group that was following him.
35.
Attractively though these submissions were presented, we cannot accept them. In our judgment, the sentencing guidelines should not be interpreted in the restrictive way Mr Harley advocates. The culpability factors relate to the responsibility which the offender bears for his actions. If he produces a weapon which, entirely understandably, causes the victim to fear the use of force, in our judgment it is not open to him to say that he is not culpable for that action because he did not intend the victim to feel threatened.
36.
Mr Harley’s construction of the culpability factors would give rise to bizarre, and in our view, unintended consequences. In this case Mr Harley submitted that, on his approach to the culpability factors, the case falls within category B because none of the category A or C factors apply. That has the effect that none of the culpability factors relating to production of a weapon could apply and in step 1 of the sentencing exercise the court must leave wholly out of account that the offender has produced a weapon which has the effect of threatening the victim. We do not consider that to be a tenable reading of these sentencing guidelines.
37.
There is no evidence the appellant verbally threatened Ms Grant or Ms Wright. Nor did he brandish the knife or waive it at them. However, they both said that (apart from a brief period) he had it out in front of him and he must have realised it was clearly visible. Despite the fact that it must have been obvious to him, as indeed it would have been to anyone present, that they were terrified because they feared he would use the knife, the appellant did not discard it or put it away. By his plea he accepts that he intended to take the cars by force or the threat of force and took some action which was more than merely preparatory towards achieving that. In our view the judge was entitled to conclude that the category A factor ‘production of a bladed article… to threaten violence’ applied and he was right to place the attempted robberies in category A2.
38.
As the judge said, the starting point for these offences was 5 years custody with a range of 4 to 8 years custody. After carefully balancing the aggravating and mitigating factors he arrived at a sentence of 7 years after a trial. In our judgment he was right to do so. These were shocking offences, committed outside a primary school where parents were dropping their children off at 8.45 in the morning. The appellant came towards two mothers who were in the middle of getting their children out of the car, armed with a knife held out in front of him, and he tried to get into their cars clearly intending to drive them away with their children inside. We have watched the CCTV of the children, their parents and teachers rushing into school to escape from the appellant, all were plainly terrified. The judge referred to the long-term trauma suffered by Ms Grant and Ms Wright both of whom needed counselling. Even allowing for the mitigating factors that the offences were both attempts and the appellant’s youth, this was very serious offending. Further, in our view the judge was entitled to regard the circumstances in which the offences were committed, namely that A was trying to escape from an armed group who were chasing him, as providing limited mitigation given the serious nature of the offences.
39.
It is also important to take into account that the judge ordered many other offences committed on 14 May 2021 near the primary school to run concurrently to the sentences for the attempted robberies: a domestic burglary, having an article with a blade or point, criminal damage and possession of an offensive weapon on school premises. As a matter of totality he was entitled to treat those as aggravating the attempted robberies which he regarded as the most serious offences.
40.
We consider the judge was entitled to find that the aggravating factors outweighed the mitigating factors by a considerable margin and to place the attempted robberies towards the top of the category range justifying a sentence of 7 years after a trial. The credit he allowed for the appellant’s guilty pleas of 20% was in our view generous. Thus, we do not find that the sentences for the attempted robberies of 67 months (or 5 years 7 months) were either wrong in principle or manifestly excessive.
41.
We turn then to Mr Harley’s second ground, which relates to totality. We acknowledge at the outset that this was an extremely difficult sentencing exercise and we pay tribute to the skilful way in which the judge approached it. The judge plainly had totality in clear view throughout and made downwards adjustments as he went along. We can see the merit in doing it that way.
42.
However, standing back, we ask ourselves whether the resulting sentence of 8 years and 10 months was just and proportionate for this multiple offending by a young man who had just turned 19. This is the question posed by the totality guideline. We have come to the view that a shorter sentence could have been imposed, accepting the grave and sustained nature of this offending, and that insufficient account was taken by the judge of totality. We conclude that this sentence, in the unusual circumstances of this case, was manifestly excessive.
43.
It is understandable that the judge treated the unlawful wounding offence as a separate act with a separate victim which justified a consecutive sentence. But added to the other sentences ordered to run consecutively, that led to an overall sentence which was too high. In order to arrive at a just and proportionate sentence for the totality of the appellant’s offending, in our judgment the right course is to treat all the offences relating to the school on 14 May 2021 as a single episode and make all those sentences concurrent. The sentences imposed for the attempted robberies, which we have upheld on appeal for reasons set out above, are sufficient to mark the seriousness of all of the appellant’s offending at the school that morning. Thus, the sentence on count 8 will remain 19 months but will be served concurrently to the 67 months imposed on counts 6 and 7. That reduces the total sentence to one of 7 years 3 months detention. That is still a substantial sentence and rightly so even for a young man of 19 (now 20). This was a sustained catalogue of offending which spanned a period of 6 months and which culminated in the shocking events outside the primary school on 14 May 2021.
44.
We therefore allow the appeal to the extent that the sentence on count 8 of indictment T20217173 remains 19 months but will be served concurrently to the sentences on counts 6 and 7 on that indictment. All other sentences remain the same.
Ancillary matters
45.
The judge purported to order no separate penalty for the offence of failure to surrender on 13 April 2021 at Cleveland Magistrates Court. The appellant had already been sentenced to a fine for that offence, so the order of no separate penalty was of no effect and we formally quash it.
46.
The judge said he disqualified the appellant from driving for the offence of dangerous driving for a period of 5 years. Later he said it was to be 12 months after the appellant’s release. He did not in terms specify the extension or uplift periods pursuant to
ss.35
A and 35B of the
Road Traffic Offenders Act 1988
although the court record says “disqualified for 12 months and an extension period of 4 years.” As we have reduced the sentence, we will recalculate the disqualification period to achieve the judge’s objective of a disqualification of 12 months from the appellant’s release.
47.
The extension period for the 12 month sentence for dangerous driving is 6 months as the appellant will be entitled to release half way through the sentence. The uplift period for the 8 month sentence for the non-domestic burglaries is 4 months for the same reason. As to the sentence of 67 months for the attempted robberies, although robbery is an offence listed in Schedule 15 of the
Criminal Justice Act 2003
, the sentence does not exceed 7 years and therefore the appellant is also entitled to be released on licence at the halfway point. Therefore, the uplift period for these offences is 33 months making the total uplift period 37 months. Thus, the total disqualification period is 55 months or 4 years 7 months (12 month disqualification plus 6 month extension plus 37 month uplift). It is then necessary to adjust this to reflect the period the appellant spent on remand prior to sentence which is 14 months (17 May 2021 to 15 July 2022). Therefore, the final disqualification period is 41 months or 3 years 5 months (55 months – 14 months).
48.
The judge ordered a statutory surcharge of £190. However, the appellant was 17 at the time of the earliest offences so the surcharge should have been £34. We amend the record accordingly. | {"ConvCourtName": ["Teesside Crown Court", "Cleveland Magistrates Court"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["failing to surrender", "Two attempted robberies", "Burglary of a dwelling", "using a vehicle without insurance", "Possession of an offensive weapon", "Two attempted burglaries", "Dangerous driving", "failing to provide a specimen for analysis", "Criminal damage", "driving otherwise than in accordance with a licence", "Having an article with a blade or point", "Unlawful wounding"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["changed his plea to guilty", "pleaded guilty"], "PleaPoint": ["at a FCMH", "at various stages"], "RemandDecision": ["spent on remand", "released on bail"], "RemandCustodyTime": ["14 months"], "SentCourtName": ["Teesside Crown Court"], "Sentence": ["fine of £120.", "19 months detention consecutive.", "8 months detention concurrent", "4 months detention concurrent", "no separate penalty and licence endorsed on all three.", "ordered the appellant to take an extended re-test", "67 months detention on both", "8 years 10 months detention in a Young Offenders Institute", "3 months detention concurrent.", "12 months detention consecutive", "24 months detention concurrent.", "1 month detention concurrent."], "SentServe": ["concurrent to each other but consecutive to the other"], "WhatAncillary": ["surcharge of £190", "fine of £120.", "disqualified the appellant from driving"], "OffSex": ["he"], "OffAgeOffence": ["18 years of age", "17 years of age"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["by a number of men"], "VictimType": ["Jessica Butler and her partner", "Premier Store"], "VicNum": ["One Stop Convenience Store", "Premier Store in Nunthorpe", "Premier Store", "Sainsbury’s store", "Go Local store", "Jessica Butler and her partner Lewis Thompson"], "VicSex": ["Mr", "Ms"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["elliptical skin tear", "CCTV", "stopped by police", "resident observed"], "DefEvidTypeTrial": ["appellant’s rationale was always to protect himself"], "PreSentReport": ["data not available"], "AggFactSent": ["impact as significant", "vicinity of a primary school", "group went equipped", "axe", "very serious offending", "armed", "threaten violence", "£682.16 of stock", "some planning"], "MitFactSent": ["youth and pleas", "totality"], "VicImpactStatement": ["victim personal statements"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence", "manifestly excessive"], "AppealGround": ["wrong in principle", "offences being placed in the wrong category", "manifestly excessive"], "SentGuideWhich": ["s.9(1)(b) of the Theft Act 1968", "totality guideline", "s.51(11) of the Crime and Disorder Act 1998", "s.20 of the Offences against the Person Act 1861", "s.1(1) of the Criminal Attempts Act 1981", "s.139(1) of the Criminal Justice Act 1988", "s.2 of the Road Traffic Act 1988", "Road Traffic Offenders Act 1988,", "s.1(1) of the Criminal Damage Act 1971"], "AppealOutcome": ["formally quash it.", "allow the appeal", "remains 19 months but will be served concurrently"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["already been sentenced to a fine"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Cleveland Magistrates Court", "Teesside Crown Court"], "ConvictPleaDate": ["Don't know"], "ConvictOffence": ["failing to surrender", "failing to provide a specimen for analysis", "using a vehicle without insurance", "driving otherwise than in accordance with a licence", "Possession of an offensive weapon", "Criminal damage", "Unlawful wounding", "Two attempted burglaries", "Two attempted robberies", "Having an article with a blade or point", "Dangerous driving", "Burglary of a dwelling"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes", "Yes"], "PleaPoint": ["'Further Case Management Hearing'", "at various stages"], "RemandDecision": ["Unconditional Bail", "Remanded into custody"], "RemandCustodyTime": ["14 months"], "SentCourtName": ["Teesside Crown Court"], "Sentence": ["ordered the appellant to take an extended re-test", "fine of £120.", "3 months detention concurrent.", "1 month detention concurrent.", "19 months detention consecutive.", "8 months detention concurrent", "67 months detention on both", "24 months detention concurrent.", "12 months detention consecutive", "4 months detention concurrent", "no separate penalty and licence endorsed on all three.", "8 years 10 months detention in a Young Offenders Institute"], "SentServe": ["Combination"], "WhatAncillary": ["surcharge of £190", "disqualified the appellant from driving", "fine of £120."], "OffSex": ["All Male"], "OffAgeOffence": ["18", "17"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Stranger"], "VictimType": ["Individuals", "Company"], "VicNum": ["6-7 of 7", "5", "4 of _", "3 of _", "1 of _", "2"], "VicSex": ["Mixed"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Medical", "Witness testimony", "Police evidence", "Digital"], "DefEvidTypeTrial": ["Self-defence or Justified Action"], "PreSentReport": ["Don't know"], "AggFactSent": ["very serious offending", "impact as significant", "threaten violence", "Location", "group went equipped", "armed", "some planning", "Financial gain /value", "Weapon /armed"], "MitFactSent": ["totality", "youth and pleas"], "VicImpactStatement": ["Yes"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Sentence (is unduly excessive)", "against sentence"], "AppealGround": ["manifestly excessive", "offences being placed in the wrong category", "wrong in principle"], "SentGuideWhich": ["totality guideline", "Road Traffic Offenders Act 1988,", "s.51(11) of the Crime and Disorder Act 1998", "s.1(1) of the Criminal Damage Act 1971", "s.139(1) of the Criminal Justice Act 1988", "s.20 of the Offences against the Person Act 1861", "s.2 of the Road Traffic Act 1988", "s.1(1) of the Criminal Attempts Act 1981", "s.9(1)(b) of the Theft Act 1968"], "AppealOutcome": ["sentence/fine quashed", "remains 19 months but will be served concurrently", "allow the appeal"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["already been sentenced to a fine"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 164 |
No. 2008/06520/B1, 2009/00023/B1, 2008/06840/B1
2009/00035/B1, 2009/00602/B1
Neutral Citation Number:
[2010] EWCA Crim 2300
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Friday 23 July 2010
B e f o r e:
LORD JUSTICE LAWS
MR JUSTICE CHRISTOPHER CLARKE
and
THE RECORDER OF MANCHESTER
(
His Honour Andrew Gilbart QC
)
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
- - - - - - - - - - - - - - - -
R E G I N A
- v -
SIMON JOHN TURNER
KARL FREDERICK GARSIDE
DEAN ANTHONY TAYLOR
SEAN ADRIAN CREIGHTON
IAN MERVIN CAMERON
- - - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone 020 7404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -
Mr M McDonald
appeared on behalf of the ApplicantsSimon Turner, Karl Garside and Dean Taylor
Mr S J Killeen
appeared on behalf of the Applicant Ian Cameron
Mr T Raggatt QC
appeared on behalf of the Crown
- - - - - - - - - - - - - - - -
J U D G M E N T
Friday 23 July 2010
LORD JUSTICE LAWS:
1. In October and November 2008 before Treacy J at the Birmingham Crown Court these five applicants faced their trial with two co-defendants on an indictment containing three counts. Count 1 charged all five together with Dane Garside and Malcolm Bull (the co-defendants) with an offence of murder. Count 2 charged Creighton, Turner and Dane Garside with possession of a firearm with intent to endanger life. Count 3 charged all five and the co-defendants with possessing shotguns without a certificate. On 2 October 2008 Creighton pleaded guilty to all three counts. On 24 November 2008 Turner was convicted on all counts. On 26 November 2008 Taylor was convicted on counts 1 and 3. On 27 November 2008 Karl Garside and Cameron were convicted on count 1 by a majority of 10:2. Karl Garside and Cameron were acquitted on count 3. The co-defendants, Dane Garside and Bull, were convicted on all charges they faced. On 28 November 2008 Treacy J passed sentence as follows: Turner, on count 1, life imprisonment with a minimum period of thirty years (less 460 days spent in custody on remand), eleven years' imprisonment concurrent on count 2, and four-and-a-half years' imprisonment on count 3; Taylor, on count 1, life imprisonment with a minimum of thirty years (less 458 days spent in custody on remand), four-and-a-half years' imprisonment concurrent on count 3; Karl Garside, on count 1, life imprisonment with a minimum term of 26 years (less 418 days spent in custody on remand); Creighton, on count 1, life imprisonment with a minimum term of twenty-eight-and-a-half years (less 462 days spent in custody on remand), and concurrent terms of ten years' imprisonment on count 4 and four years' imprisonment on count 3; Cameron, on count 1, life imprisonment with a minimum term of twenty-five years (less 418 days spent in custody on remand). Of the co-defendants, Dane Garside was sentenced to life imprisonment on count 1 with a minimum term of twenty-seven years (less 456 days spent in custody on remand), and concurrent terms of ten years and four-and-a-half years' imprisonment on counts 2 and 3 respectively. Bull, on count 1, was sentenced to life imprisonment with a minimum term of twenty-five years (less 417 days spent in custody on remand), and four-and-a-half years' imprisonment concurrent on count 3.
2. Applications for leave to appeal having been refused by the single judge, Turner and Karl Garside now renew their applications for leave to appeal against conviction. Taylor renews his applications for leave to appeal against conviction and sentence. Creighton renews his application for leave to appeal against sentence only. Cameron applies for an extension of time in which to renew his application for leave to appeal against conviction.
3. The victim of the murder was 35 year old Gerard Tobin, to whom we will refer as the deceased. He was a member of a bikers' group called "Hell's Angels". On 12 August 2007 he had attended a motorcycle event called the "Bulldog Bash" which had taken place at Long Marston Airfield in Warwickshire. It was traditionally frequented by Hell's Angels. On the afternoon of 12 August 2007 he was riding his motorcycle homewards towards London on the M40. At about 2.30pm, just south of junction 15, a green Rover motorcar pulled out of a lay-by. One of its occupants fired a single shot from a revolver at the deceased. He was killed instantly. Another shot from the car was fired at the rear wheel of his motorcycle. The car was later torched. It was found by emergency services in a remote part of Coventry engulfed in flames.
4. The Crown's case was that the five applicants were members of a rival bikers' gang, the "Outlaws". They planned the murder. They carried out recognisance or "scouting" over three or four days before the killing. Creighton, Turner and Dane Garside were in the green Rover. Dane Garside was the driver. Creighton fired the fatal shot. The other applicants, Cameron, Karl Garside and Taylor lay in wait in a white Range Rover further along the motorway at junction 11 in case the first attempt failed. The last man, the co-defendant Bull, was in another vehicle alone. He was co-ordinating the attack and relaying information to the others. In short, the deceased was chosen at random as a representative of the Hell's Angels and summarily executed on a public road in broad daylight.
5. Much telling evidence was provided by vehicle index recognition technology, CCTV footage and mobile telephone cell site records into which, however, it is unnecessary to go, given the nature of the grounds of appeal against conviction which, save for one matter, are entirely concerned with the admission of previous convictions of two of the applicants, Turner and Taylor.
6. We should, however, refer to one other aspect of the evidence. This is the existence of premises in Coventry called "Supreme Harley Supplies". Taylor resided there. It was used as a meeting place for the chapter of the Outlaws to which the applicants belong. Two shotguns and live cartridges were found hidden there wrapped in bin liners in or on which a number of Turner's fingerprints were found. These facts gave rise to count 3 in the indictment. There was also found at these premises a live bullet capable of being fired by a weapon used in the killing. That was found in a desk drawer in Taylor's living accommodation. Count 2 was directed at possession of the firearm used to fire the fatal shot from the green Rover.
7. Of the defendants who contested the case (that is all save Creighton), all gave evidence, save for Karl Garside. One way or another they all denied participation in the killing or any firearms offences.
8. The grounds of appeal as originally drawn concerned the decisions of the trial judge to admit evidence of previous convictions recorded against Turner and Taylor. The other applicants who complain of their convictions -- that is Karl Garside and Cameron -- do so on the basis that the admission of Taylor's previous conviction prejudiced them. Their cases accordingly stand or fall with that of Taylor.
9. This morning, however, Mr McDonald, representing Turner, Karl Garside and Taylor, seeks to take a new point. He submitted that the judge's summing-up was defective because the directions on joint enterprise were incomplete. He says that the judge should have given a direction to the jury as follows:
"If you consider there was a non-innocent explanation for what any one of the alleged secondary parties did, then you must be sure that that party foresaw the intention on the part of the killer to kill the deceased with a firearm."
This, it is said, was required in order to recognise the possibility of a particular scenario, namely that there may on the facts here have been what Mr McDonald referred to as "non-innocent scouting" -- that is to say, activity designed not to find a victim for a killing, but to find a Hell's Angel who would then be frightened or intimidated, but not shot dead. Mr McDonald says that this was in the nature of Dane Garside's case. Reference was made to the judge's summing-up (Volume V, 14A-C) as follows:
"Dane Garside's case requires separate analysis. He was the driver of the Rover, of course, as you recall. He says that the scouting was pure scouting throughout. That he pursued Mr Tobin on 12 August because he had been told to by Creighton, but he manoeuvred the car for the purpose of enabling Creighton to get a better look at Mr Tobin's patches, so in other words, he was manoeuvring the car still as part of the scouting exercise and he goes on to say that even after the shots, he did not think that any shots had been aimed at Mr Tobin. That at the worst it was something just to scare him. He says that he had no prior knowledge of carrying or use of firearms until after they had been discharged."
10. We have found it difficult to understand Mr McDonald's submission. First, as regards Dane Garside (who is not one of the applicants), the passage we have just read is immediately followed by these words:
"Now if any of those defence cases is, or may be true, and you should consider each one separately, then the defendant concerned would not be guilty of murder ...."
This supposed third scenario was expressly dealt with in the case of the one defendant who appears to have raised it.
11. Mr McDonald submits that he is supported in his fresh argument by a decision of this court in a judgment delivered yesterday in
R v A and Others
[2010] EWCA Crim 1622
. We do not consider that the court's judgment in that case assists on the facts here.
12. In short, in the present case, as we see the matter, the judge said all that had to be said at page 12F-H as follows:
"So in this case, in considering the position of a defendant who did not fire the fatal shot, you would have to be sure that (a) he played a part in the commission of the offence of murder and (b) knew that there was an intention to kill the victim by use of a firearm. Those are the two essential ingredients of which you would have to be sure before you could convict a defendant in this case. If you are sure of those two elements (a) and (b) in the case of a particular defendant, then he is guilty of murder."
So far as it may have been desirable or even necessary to indicate to the jury that a defendant must be shown to have foreseen that a co-defendant might intend or did intend to kill the victim, such a requirement is plainly embraced within the trial judge's head (b), that is to say that it must be shown that the defendant knew that there was an intention to kill the victim by use of a firearm. There is nothing in this new point and we refuse leave to appeal in relation to it.
13. We turn to the grounds as drawn first in Turner's application. It will be recalled that he was said to have been in the murder vehicle. His case was alibi. It was apparently during the course of his cross-examination on behalf of a co-defendant that the Crown applied, without earlier notice, to adduce evidence of a previous conviction recorded against him for an offence contrary to
section 18 of the Offences against the Person Act 1861
. The offence had been committed in 1993. The victim, who was a stranger to Turner, owed money to a third party belonging to the same biker organisation as Turner. Turner and the third party went to demand payment from the man. He declined to pay. Turner proceeded to throw petrol over him and stab him twice. He was sentenced to ten years' imprisonment for that offence.
14. The Crown's case was that evidence of this previous conviction was admissible against Turner as demonstrating a propensity to commit offences of ruthless violence on strangers, and thus tending to support his alleged role as one of the three in the murder vehicle. The defence relied in particular on
R v Murphy
[2006] EWCA Crim 3408
, in which Keene LJ said this:
"16. There may be cases where the factual circumstances of just one conviction
might
be relevant to showing propensity, but we would expect such cases to be rare and to be ones where the earlier conviction showed some very special and distinctive feature such as a predilection on the part of the defendant for a highly unusual form of sexual activity or some arcane or highly specialised knowledge relevant to the present offence. In cases with less distinctive features in common, one would require some evidence of the propensity manifesting itself during the intervening period in order to render the earlier evidence admissible as evidence of continuing propensity."
The trial judge referred specifically to this at 4H of the transcript of his ruling. He concluded that ruling as follow:
"Having considered those materials I consider that the 1993 conviction for the offence contrary to
section 18
reveals a case of violence of greater than normal gravity, as the facts outlined and the sentence imposed show. It seems to me that on analysis the following features are significant: the 1993 offence was premeditated rather than being a sudden outburst of violence. Secondly, to my mind it showed a very considerable degree of ruthlessness. The throwing of petrol over the victim followed by the use of a substantial knife to vulnerable parts of the body by Mr Turner amply demonstrate that. Thirdly, it showed a preparedness to use extreme violence. Fourthly, this violence was used in a situation where there had been no provocation or other activity emanating from the victim which could in any way have contributed to what had taken place. Next, the victim was not known to Turner. In addition, it is significant that there was no element of personal affront to Turner underlying the violence which took place. What did underlie the violence was a type of enforcement which has some resonance with what is said to underlie the shooting of Mr Tobin.
....
To my mind the features which I have identified, and excluding the feature in relation to the shooting, have a strong resonance with the allegations in the current case. They provide evidence which a jury could properly say makes it more likely that the Crown's case is correct and that Turner's case is untrue in relation to his involvement in the present matter. The evidence tends to show that Mr Turner has a tendency or propensity to use extreme violence in a premeditated way in circumstances which do not personally impinge upon him. The evidence is capable of showing also that his role in this matter was as one of those who either fired shots from the Rover or was present in the Rover vehicle from which shots were fired."
The conviction was therefore admitted under the
section 101(1)(d)
gateway.
15. Refusing leave to appeal the single judge said this:
"Treacy J was entitled to admit the evidence and his reasoning is unimpeachable. What was necessary for the 1984 conviction to satisfy the
R v M
[2006] EWCA Crim 3408
[that is
Murphy
] test was a very special and distinctive feature or some arcane or highly specialised knowledge relevant to the present offence. Identified as within one of those categories were very considerable ruthlessness, a preparedness to use, and the infliction of, extreme violence of greater than normal gravity, without provocation, on a victim unknown to you and without an element of personal affront to you, and with an underlying motif of enforcement. These are not, in combination, features commonly seen in murder cases, and they are so powerful as to defeat your argument that effluxion of time should have made the evidence inadmissible. ...."
We entirely agree with that reasoning. There is no merit in that point on behalf of Turner. We refuse him leave to appeal.
16. We have a footnote to add in relation to the admission of previous convictions both in his case and in Taylor's to which we will come after dealing with Taylor's application to which we turn now.
17. In Taylor's case the Crown applied under
section 101(1)(d)
of
the 2003 Act
for leave to adduce evidence of a conviction in December 1984 on Taylor's plea of guilty to three counts of aggravated burglary, one of criminal damage and an offence of possessing a loaded shotgun or shotguns. Taylor and seven others, all members of the same motor-cycle group, broke into a house with three loaded shotguns to retrieve a motorcycle insignia that had been taken. In giving his ruling allowing in the convictions under
section 101(1)(d)
the trial judge said this:
"There appear to me to be relevant features of this offence. They represent a violent attack, one which was premeditated and planned, one which involved a sizeable group of bikers, including Mr Taylor. The underlying trigger for their actions was a biker-related dispute. As already stated, loaded firearms, such as shotguns, were taken. These factual matters were not in issue between the Crown and those representing Mr Taylor.
....
The Crown says that despite the passage of time the 1984 episode sheds important light on central issues in relation to these counts. There is emphasis placed on the factual circumstances of the 1984 episode (I have summarised those) that they are emphasised as showing close similarity and therefore relevance to the issues before the court in this trial. Mr Berry on behalf of Taylor, in resisting the Crown's application, emphasises the passage of time which has elapsed since that single conviction. He also submits that the circumstances of the two separate sets of offences differ sufficiently to enable it to be said that the 1984 convictions are not relevant."
After citing authority, including
R v Hanson
[2005] EWCA Crim 824
and
Murphy
, the trial judge concluded:
".... I am acutely aware that the episode took place in 1984, and was a single episode. However, in my judgment, there are significant features of that episode which rise far above the routine, and in truth show special and distinctive features which have a strong relevance and resonance in this case. I have identified those features earlier in this ruling. This, in my judgment, is one of those relatively rare cases where a single old conviction can demonstrate propensity."
He then proceeded to consider section 101(3) and (4) of the
Criminal Justice Act 2003
, which we do not need to read.
18. Refusing leave the single judge considered this reasoning to be impeccable essentially on the same basis as the view he had taken in the case of Turner. Again, we agree.
19. The footnote to which we referred is as follows. Mr McDonald this morning submitted that the trial judge should have gone further than he did in dealing with these previous convictions when he came to sum the case up to the jury. In short, it is said that the judge should have taken care to explain the differences between the facts of the previous convictions and this case; and that he should have placed emphasis on the limited use the jury might make of the previous convictions and the dangers and shortcomings which the admission of such material could possibly generate.
20. Those criticisms are all entirely misplaced. We have read and re-read the summing-up. We will not lengthen this judgment by citing further passages. The judge gave proper warnings to the jury upon all relevant matters and at all relevant points. There is nothing in that submission.
21. It follows that Turner's and Taylor's renewed applications for leave to appeal against conviction must be refused. The other applicants who seek to challenge their convictions, Karl Garside and Cameron, were, as we have said, on the Crown's case lying in wait in the white Range Rover with Taylor. They assert that insofar as the admission of Taylor's previous conviction strengthens the case that the Range Rover was being deployed for a second attempt on the deceased's life if the first attempt failed, then it went also to strengthen the case against them. So their grounds of appeal merely rest on Taylor's assertion that his 1984 conviction should not have been admitted. Since we have rejected that assertion, Cameron's and Karl Garside's renewed applications for leave to appeal against conviction must also be refused.
22. We turn to the renewed applications for leave to appeal against sentence. It is accepted on all hands that thirty years was the correct starting point under
Schedule 21
to
the 2003 Act
. Only Taylor and Creighton seek leave to appeal against their sentences. Taylor is 49 years old. He has an extremely bad criminal record. Creighton is 46 and also has a very bad record. There is nothing to say in support of these applications. We see no reason to distinguish between Creighton and Taylor, notwithstanding that Creighton appears to have been the gunman in the green Rover. The judge might properly have specified longer minimum terms. These renewed applications should not have been brought and they are refused. | {"ConvCourtName": ["Birmingham Crown Court"], "ConvictPleaDate": ["October and November 2008"], "ConvictOffence": ["murder", "possession of a firearm with intent to endanger life", "possessing shotguns without a certificate"], "AcquitOffence": ["possessing shotguns without a certificate."], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["custody on remand"], "RemandCustodyTime": ["460 days", "458 days", "462 days", "418 days"], "SentCourtName": ["Birmingham Crown Court"], "Sentence": ["life imprisonment with a minimum of thirty years (less 458 days spent in custody on remand), four-and-a-half years' imprisonment concurrent on count 3", "life imprisonment with a minimum term of twenty-five years (less 418 days spent in custody on remand)", "life imprisonment with a minimum term of twenty-eight-and-a-half years (less 462 days spent in custody on remand), and concurrent terms of ten years' imprisonment on count 4 and four years' imprisonment on count 3", "life imprisonment with a minimum period of thirty years (less 460 days spent in custody on remand), eleven years' imprisonment concurrent on count 2, and four-and-a-half years' imprisonment on count 3", "life imprisonment with a minimum term of 26 years (less 418 days spent in custody on remand)"], "SentServe": ["concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["his"], "OffAgeOffence": ["46", "49"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["Taylor's living accommodation"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["the deceased was chosen at random"], "VictimType": ["Gerard Tobin"], "VicNum": ["The victim"], "VicSex": ["He"], "VicAgeOffence": ["35 year old"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["vehicle index recognition technology", "CCTV footage and mobile", "found by emergency services", "fingerprints"], "DefEvidTypeTrial": ["they all denied participation"], "PreSentReport": ["data not available"], "AggFactSent": ["joint enterprise", "planned the murder", "bad criminal record"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["applicants"], "CoDefAccNum": ["two co-defendants"], "AppealAgainst": ["conviction and sentence"], "AppealGround": ["the judge's summing-up was defective because the directions on joint enterprise were incomplete", "concerned with the admission of previous convictions"], "SentGuideWhich": ["section 18 of the Offences against the Person Act 1861.", "section 101(3) and (4) of the Criminal Justice Act 2003"], "AppealOutcome": ["These renewed applications should not have been brought and they are refused."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The judge gave proper warnings to the jury upon all relevant matters", "thirty years was the correct starting point"]} | {"ConvCourtName": ["Birmingham Crown Court"], "ConvictPleaDate": [["2008-10-01", "2008-11-01"]], "ConvictOffence": ["possessing shotguns without a certificate", "possession of a firearm with intent to endanger life", "murder"], "AcquitOffence": ["possessing shotguns without a certificate."], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["418 days", "Creighton", "458 days", "460 days"], "SentCourtName": ["Birmingham Crown Court"], "Sentence": ["life imprisonment with a minimum term of twenty-five years (less 418 days spent in custody on remand)", "life imprisonment with a minimum term of twenty-eight-and-a-half years (less 462 days spent in custody on remand), and concurrent terms of ten years' imprisonment on count 4 and four years' imprisonment on count 3", "life imprisonment with a minimum term of 26 years (less 418 days spent in custody on remand)", "life imprisonment with a minimum of thirty years (less 458 days spent in custody on remand), four-and-a-half years' imprisonment concurrent on count 3", "life imprisonment with a minimum period of thirty years (less 460 days spent in custody on remand), eleven years' imprisonment concurrent on count 2, and four-and-a-half years' imprisonment on count 3"], "SentServe": ["Concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["49", "46"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Stranger"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Male"], "VicAgeOffence": ["35"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Forensic /DNA", "Digital", "vehicle index recognition technology", "Authority evidence"], "DefEvidTypeTrial": ["Offenders deny offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["bad criminal record", "joint enterprise", "Premeditation"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["2"], "AppealAgainst": ["conviction and sentence"], "AppealGround": ["the judge's summing-up was defective because the directions on joint enterprise were incomplete", "concerned with the admission of previous convictions"], "SentGuideWhich": ["section 101(3) and (4) of the Criminal Justice Act 2003", "section 18 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": ["thirty years was the correct starting point", "The judge gave proper warnings to the jury upon all relevant matters"]} | 317 |
No.
2006/01626/C4
Neutral Citation Number:
[2006] EWCA Crim 2325
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Friday 25 August 2006
B e f o r e:
LORD JUSTICE HUGHES
MR JUSTICE MACKAY
and
MR JUSTICE TREACY
- - - - - - - - - - - - - - - -
R E G I N A
- v -
DAVID STEPHENSON
- - - - - - - - - - - - - - - -
Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -
MR R DANIELLS-SMITH
appeared on behalf of
THE APPELLANT
MR J O'HIGGINS
appeared on behalf of
THE CROWN
- - - - - - - - - - - - - - - -
J U D G M E N T
Friday 25 August 2006
LORD JUSTICE HUGHES:
1. This appellant was convicted in the Crown Court at Canterbury of offences of historic sexual abuse of a teenage girl who lived in the same house as he did. His appeal against conviction is founded upon the contention that he was not permitted to develop through cross- examination of the complainant his suggestion that her allegations were entirely false and the product not so much of spite or malice, but of a miserable and exploited up-bringing as a result of which she had become psychologically disturbed and apt to see abuse in adult males with whom she had contact, whether it was true or not. That at least is how we understand the case to be advanced in the grounds of appeal and in the skeleton argument.
2. The background circumstances of the case are these. The appellant was born in 1964. The allegations related to the years 1995 to 1997. By then he had been married and divorced and on his own case had been in and out of prison, having committed offences of dishonesty, low- level violence and motoring.
3. The complainant was born in October 1981. It seems to have been accepted that her father and mother separated when she was about 6 years old. Her father stayed in Germany, where he was serving in the forces, and her mother brought the child back to England.
4. The complainant's evidence was that the relationship between her father and mother had been characterised by violence on the part of her father and by both heroin and alcohol abuse and addiction on the part of her mother. Thereafter she said that her mother remained gravely addicted to heroin and alcohol, and subject to the many distortions of behaviour which accompany such a condition. All that seems to have been accepted as the truth. Her mother had various boyfriends from time to time, one of whom was a man called Darryl, who was associated with the mother at about the time when the complainant was around 12 years of age. The complainant said that Darryl was violent to her mother and that eventually in the course of an argument he threw a bowl of vomit over her (the complainant) and as a result of that she left and went to live at the home of a friend called Tracey. The adults in Tracey's home were a Mr and Mrs David and Anna Ralph. It seems that at least at some stage Social Services approved, whether formally or informally, the fostering arrangement under which the complainant lived in that household.
5. Also living in the Ralph household, ostensibly at least as a lodger, was this appellant. He, it was common ground, was rather more than a lodger because he was having an affair with Anna of which everybody, including Anna's husband, seems to have been aware. On the appellant's own case that had begun the day after he first met Anna, at which point he moved in. It appears to have been established by independent evidence that the complainant lived in that household for two periods. She lived there first for a few months, and then she returned to her mother. Not long after that, in July 1995, she discovered her mother dead in the house through an overdose of drugs. Within a short time of that event, having briefly visited her father in Germany, she returned to live in the Ralph household, where she remained on this occasion for something well over 18 months.
6. The sleeping arrangements in the Ralph household found the complainant sharing a room with her contemporary and friend, Tracey, Mr and Mrs Ralph ostensibly sharing a bedroom (although Mr Ralph worked nights and was not normally there at night), two boys sharing the only other bedroom and the appellant sleeping in the downstairs sitting room (at least when he was not sharing the bed of Anna Ralph).
7. According to the complainant, during the first spell in which she lived in this household, the appellant began to approach her sexually. It began, according to her, when she went downstairs during the night to watch the television, which was in the room where he was. So it was her case that she went down to where he was. She said that he used to ask her if she wanted a cuddle and that matters progressed from there to him getting her to masturbate him and to suck his penis, and later, in the period of her second stay at the house, to full and frequently repeated sexual intercourse more than once a week. Her case was that throughout this period she was lonely and truanting from school. She had by then no parent with whom she could live. Her account of the relationship with the appellant was that she believed that they were in love. She said that he spoke to her of their being together when she was 16 and indeed of marrying her in Scotland at that time. He comes from Scotland.
8. All this went on, according to the complainant, until she left the house to live with another friend. On her account she did that because Anna Ralph found her kissing Anna's husband, David Ralph. From that Anna also discovered that the complainant had slept with David Ralph on (as the complainant said) a single occasion. She then left the household, but there was at least one further incident of sexual intercourse with the appellant, according to the complainant, because she gave an account of having run into him unexpectedly in a public house, ending up at the flat of a friend and of there having intercourse with him in the sitting room in the presence of the friend and the friend's infant son.
9. The indictment charged two specimen counts of indecency with a child which were designed to cover the activities falling short of sexual intercourse. At a very late stage in the trial it was noticed that the Indecency with Children Act had been amended to apply to children of the age of 14 or 15 only after the events in question. One of the counts related to a time when the complainant was on her own evidence 14, and so the jury was directed that that offence could not be made out whatever had occurred.
10. In addition to those counts there were three counts of rape. Those were each laid as specimen charges covering respectively the years when the complainant was 13, 14 and 15. In the end the complainant's evidence suggested that in the last year there was only the incident at the friend's flat and so that formed the basis of the last count; but in respect of each of the earlier years her case was that sexual intercourse between them was regular.
11. The appellant's case was that none of this had ever happened. There had been, he said, no sexual contact or any degree of familiarity of an intimate kind between the complainant and himself at all.
12. There was evidence that the complainant had spoken to contemporaries of her own at about the time when, if she was right, this relationship was continuing, and she had revealed it to her friends. She had, however, made no complaint to anybody in authority about the appellant and did not do so until 8 December 2004, which was something like nine years after the last incident. It is a fact that by then she was undergoing intensive therapy for psychological disorders. She had attempted suicide (how seriously we do not know) on a number of occasions. It is suggested, and may well be the case, that her counselling included methods designed to recover suppressed memories of abusive experiences.
13. Before the trial judge there was a detailed defence case statement. It asserted that the complainant was emotionally damaged, having had an appalling childhood. It made reference to some of the features of that childhood to which we have already referred. It went on to say this:
"Since that time, the complainant has accused every adult male, with whom she had any significant contact, with sexually abusing her. In particular she has accused her own father of sexually abusing her (before the age of 6) ....
She has accused her stepfather, Darryl, of sexually abusing her ...
She turned for protection to a local old man (unnamed) whom she accused of being a paedophile ....
She accused the defendant -- an adult male lodger living at her address.
She accused David Ralph, her foster father of unlawful sexual intercourse and indecency...
The defence say that these accusations are part and parcel of her ongoing psychiatric illness ....
The defence believe that she subconsciously blames men for her mother's and her own personal suffering, and these allegations .... are part of the illness she is suffering and/or part of the retrieved repressed memory ...."
14. In addition to that, the trial judge had before him a skeleton argument from counsel on behalf of the appellant making application to cross-examine the complainant on her sexual history. The application was necessary because of the provisions of
section 41 of the Youth Justice and Criminal Evidence Act 1999
. The skeleton put it in this way:
"The defence seek leave to cross-examine on sexual history limited strictly to:
(a)
the incident in which the complainant states that her stepfather Darryl Manners put his hand up her top [the page reference in the complainant's statement is given];
(b)
the consensual sexual relationship she had with David Ralph her foster father (see p14)."
The skeleton went on to assert, as the case statement had, that it was a feature of the case (according to the appellant) that every significant adult male in the complainant's life had been the subject of some allegation of abuse, either sexual or physical. It named the men who were listed in the case statement and added to that list another male, a young man called Ring, who for a period had been the complainant's boyfriend when she was about 16. However, it is clear that, although the skeleton referred to those other people, the application which was made to the trial judge was "limited strictly to" Manners and the foster father David Ralph.
15. The nature of the application which was made to the trial judge was not apparent from the case statement, from the notice of appeal, or from the skeleton which was lodged in support of the proposed appeal. It appeared from those documents that what was being suggested was that the appellant had been wrongly prevented by the trial judge from developing a case that the complainant had been so damaged by her life experiences that she had come to make a pattern of false allegations against numerous people, and that the allegations against the appellant were simply part of it.
16. We would like to make it absolutely clear that if there is a proper basis for suggestion that that is what has happened, the law allows it to be explored before the jury. Providing that there is a proper ground for supposing that other false allegations of sexual abuse have been made by the complainant against other people, questioning the complainant about those other false allegations does not constitute questioning about the sexual behaviour of the complainant and is not within
section 41
. There is clear authority for that. The line of authority begins with
R v RT and MH
[2001] EWCA Crim 1877
, and it proceeds through a number of subsequent cases which we need not recite. It is important to register that there have to be grounds for saying that the allegations against other people were false before that line of authority becomes relevant.
17. That appeared from the documents to be the case which the appellant sought to make. We are wholly unsurprised that, faced with such an assertion, the single judge gave leave to pursue the appeal. However, for the reasons that we have explained, that is not the way in which this appeal is put; nor, more importantly, is it the way in which the application was made to the trial judge. First and foremost, the matters relating to the two men in respect of whom an application was made before the trial judge (Darryl Manners and David Ralph) were in neither case suggested to have been false. The material available in relation to Darryl Manners was that in the course of the kind of questions which police officers normally ask complainants in a case of this kind about her general family history, the complainant mentioned that on a single occasion Manners (who was then her mother's boyfriend) had put his hand up or down her upper clothing and onto her chest. The matter had gone no further than that. She had rebuffed him and the following day he had apologised. That was her account and that was all there was to it. No one suggested that it was a false allegation; on the contrary, everybody accepted that it was true. Mr Daniells-Smith, on behalf of the appellant, tells us that he would have wished to explore with the complainant whether that was the reason why she left her mother and went to live in the Ralph household. But there was no possible basis for any such suggestion. The complainant gave a vivid and entirely convincing reason why she left her mother's household: Manners was routinely violent to her mother and then an incident occurred when he threw a bowl of vomit over the complainant's face.
18. So far as David Ralph was concerned, the material available which counsel on behalf of the appellant sought to cross-examine about was (as it is put in the skeleton) "a consensual sexual relationship as per page 14". The complainant said that she had been ejected from the house by Anna Ralph, having been found kissing David Ralph, and that there had been an incident of sexual intercourse between them before that.
19. The application was plainly made to the trial judge simply on the basis that it was in some way necessary for the jury to understand or to know about that matter in order to judge the veracity of the complainant's allegation against the appellant. That simply does not follow. That the complainant had had some brief sexual experience with another adult man (if that is all there was to it) was of no assistance at all on the question of whether her allegations against the appellant were true or false. That seems to have been the only basis upon which the matter was put to the trial judge. Today Mr Daniells-Smith has suggested that the relationship with David Ralph may have had a different and more far-reaching significance for the question of whether the complainant was truthful about the appellant or not. He says that his instructions from the appellant were that there had not been a casual single episode with Ralph, but an affair which had continued at any rate for the latter months of the long second period in which the complainant had lived in the Ralph household. Mr Daniells-Smith submits to us today that it may be the case that, as a damaged witness, the complainant had attributed to the appellant the activities in which she had actually engaged with Mr Ralph.
20. It suffices to say that that is not and did not begin to be the way in which the application was put to the trial judge and the trial judge cannot be faulted for not having divined by some means that that might be the suggestion. In any event there was a wholly insufficient basis for it. The only material that there was was what the complainant said. Beyond that there was nothing, except (although we do not know because we have not seen it) the unsupported assertion of the appellant. Moreover, even on the appellant's case as presented to us today, the furthest that the suggestion went was that for the last part of the second period of residence in the Ralph household there had been a continuing sexual relationship between the complainant and Mr Ralph. The complainant's evidence in relation to the appellant was that what had happened between her and him had begun in the first period of her residence and continued throughout the second and indeed beyond it. It was not a question, even if it had been put in this way to the judge, of her transposing events from one man to the other. The accounts of her relationship with the appellant was quite different from the suggested relationship with Ralph.
21. The only rulings that the trial judge was ever asked to make related to questions concerning Manners and Ralph. It is impossible to fault the judge's ruling in relation to either of those men, given the way that the application was made to him and given the nature of the available material as we have now explained it.
22. The material in relation to other men (in relation to whom no application under
section 41
was ever made to the trial judge) was even more exiguous. The suggestion that the complainant had been abused by her natural father at some time before the age of 6 was founded upon a single, subsequently retracted suggestion made to a counsellor in the course of counselling and went no further than, "I do not know, but my father may have abused me". The old man referred to in the list of males that we have catalogued was a neighbour who lived close by when the complainant lived with her mother and Manners. She had gone to him, she said, to register her complaint about the occasion when Manners put his hand under her clothes. She made no complaint whatever about him; she said that he was kind to her. In the course of her interviews with the police she repeated local gossip which she said she had heard later to the effect that the man was a paedophile, but she did not make any allegation against him, nor did she suggest that he had laid a finger on her.
23. The boyfriend Ring, with whom she had been in a relationship when she was about 16, was not somebody about whom she made any complaint at all. The only thing that she said about him was that, according to her, she had met the appellant at some stage and had told him that Ring was HIV positive.
24. That short reference to the other males listed demonstrates that the assertion in the defence case statement that the complainant had accused every adult male with whom she had any significant contact of sexually abusing her was not simply not founded in fact, but was grossly overstated.
25. We are quite satisfied that there is nothing in the trial judge's ruling in relation to the
section 41
application which was made to him about which there can possibly be any complaint. Perhaps because he too was a little puzzled about what was being suggested, the judge expressly left open to the applicant the opportunity to return and make further application and indeed, we are told, enquired at a later stage of the trial whether further argument needed to be addressed to him. As Mr Daniells-Smith informed us, he was told that there was none.
26. There is a second ground of complaint which Mr Daniells-Smith puts very much as a secondary basis of appeal. The complainant, who was aged about 24 by the time of the trial, had in the late 1990s two cautions and a conviction. She had been cautioned in May 1996 (when she would have been 14) for receiving stolen goods; she must therefore have admitted it. She had been cautioned in March 1997, when she would have been 16, for stealing by way of shoplifting. In January 1998 (when she would have been 17) she had a recorded conviction in the magistrates' court for receiving stolen goods. The history does not relate whether she admitted it or not, but it does reveal that it was an offence which was dealt with by the magistrates by way of a conditional discharge.
27. Application was made to the trial judge to cross-examine the complainant about those matters. That would have involved cross-examining as to bad character and accordingly the provisions of
section 100 of the Criminal Justice Act 2003
applied. The judge refused to permit it on the basis that dishonesty was not the same as untruthfulness. In reaching that decision he referred to the observation of this court in
R v Hanson
[2005] EWCA Crim 824
, in particular at paragraph 13. In
Hanson
this court considered an application made by the Crown to admit evidence of bad character of the defendant on trial. In such a case, as this court held as recently as yesterday when the point was fully argued, particular caution must be adopted, but it does not follow, as we have held, that previous convictions which do not involve either the making of false statements or the giving of false evidence, are incapable of having substantial probative value in relation to the credibility of a non- defendant under
section 100
, or for that matter of a co-accused where the application is made by him under section 101(1)(e). It is, as we then explained, wholly rational that the same degree of caution which is applied to a Crown application when considering relevance and discretion does not fall to be applied when What is at stake is a defendant's right to deploy relevant material to defend himself against a criminal charge. Accordingly (though he cannot be blamed for it), the trial judge misdirected himself in directly applying paragraph 13 of
Hanson
to the situation which was before him. It may be, therefore, that had he addressed the question without believing himself fettered in that way, he might have come to the conclusion that these three incidents were capable of having substantial probative value in relation to the truthfulness of the complainant, which was an important matter in issue in this case. Whether he would or not would have been a matter for the feel of the case and for him at the time. Whether he would or not, we are satisfied that, had those matters been known to the jury, they could not in this case have made any significant difference. This complainant was on her own evidence the product of a thoroughly chaotic and disreputable lifestyle. The convictions were for relatively minor matters. They were a significant time ago in the life of someone of the complainant's age. They related to events in her late teens some eight or nine years before the relevant time which was whether she was truthful when she gave her evidence in court. We are quite satisfied that, even if those three incidents ought to have been before the jury, it is quite impossible to say that these convictions are unsafe as a result of the fact that they were not. In those circumstances this appeal must be dismissed. | {"ConvCourtName": ["Crown Court at Canterbury"], "ConvictPleaDate": ["data not available"], "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 Canterbury"], "Sentence": ["data not available"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["The appellant was born in 1964. The allegations related to the years 1995 to 1997."], "OffJobOffence": ["data not available"], "OffHomeOffence": ["fostering arrangement under which the complainant lived in that household."], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["relationship"], "VictimType": ["The complainant"], "VicNum": ["Copy link to this paragraphThe complainant"], "VicSex": ["her"], "VicAgeOffence": ["the complainant was 13, 14 and 15"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["fostering arrangement under which the complainant lived in that household."], "VicMentalOffence": ["psychological disorders."], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["complainant's evidence", "According to the complainant"], "DefEvidTypeTrial": ["appellant's case was that none of this had ever happened"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["conviction"], "AppealGround": ["the contention that he was not permitted to develop through cross- examination of the complainant his suggestion that her allegations were entirely false"], "SentGuideWhich": ["section 41 of the Youth Justice and Criminal Evidence Act 1999", "Indecency with Children Act", "section 100 of the Criminal Justice Act 2003"], "AppealOutcome": ["appeal must be dismissed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["even if those three incidents ought to have been before the jury, it is quite impossible to say that these convictions are unsafe"]} | {"ConvCourtName": ["Crown Court At Canterbury"], "ConvictPleaDate": ["Don't know"], "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 Canterbury"], "Sentence": ["Don't know"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["31-33"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Temporary Accommodation"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1 of 1"], "VicSex": ["All Female"], "VicAgeOffence": ["14-15"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Temporary Accommodation"], "VicMentalOffence": ["Had mental health problems"], "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": ["conviction"], "AppealGround": ["the contention that he was not permitted to develop through cross- examination of the complainant his suggestion that her allegations were entirely false"], "SentGuideWhich": ["section 100 of the Criminal Justice Act 2003", "section 41 of the Youth Justice and Criminal Evidence Act 1999", "Indecency with Children Act"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["even if those three incidents ought to have been before the jury, it is quite impossible to say that these convictions are unsafe"]} | 136 |
No:
2012/6256/B3
Neutral Citation Number:
[2013] EWCA Crim 2313
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Friday, 22 November 2013
B e f o r e
:
LADY JUSTICE SHARP DBE
MR JUSTICE GRIFFITH WILLIAMS
MR JUSTICE LINDBLOM
- - - - - - - - - - - - -
R E G I N A
v
JACOB CROSSLAND
- - - - - - - - - - - - -
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 Smith
appeared on behalf of the
Appellant
Mrs K Taylor
appeared on behalf of the
Crown
- - - - - - - - - - - - -
J U D G M E N T
1.
LADY JUSTICE SHARP: The provisions of the
Sexual Offences (Amendment) Act 1992
apply, as do the provisions of
section 39
Children and Young Persons Act 1933
. This judgment will be anonymised accordingly.
2.
This is an appeal against conviction with the leave of the single judge. The appellant Jacob Crossland is now 21 years old. On 9th October 2012 he was convicted after a trial of two rapes, contrary to
section 1(1)
Sexual Offences Act 2003
("
the Act
"), counts 3 and 6, and four counts of sexual activity with a child contrary to
section 13(1)
of
the Act
, counts 1 to 4. No verdicts were taken on two further counts of sexual activity with a child which were alternative counts to the rape charges.
3.
He was sentenced to a total of eight years' detention in a young offenders’ institution: three years on count 3 and five years consecutive on count 6, to which sentences of two years' detention on each of the remaining counts were concurrent. He was made the subject of a Sexual Offences Prevention Order, required to comply with provisions as to notification and included on a list of relevant persons by the Independent Safeguarding Authority.
4.
The first rape was alleged to have been committed against C, who was born on 18th June 1996, and the second rape was alleged to have been committed against K, who was born on 4th July 1996. C was the complainant in relation to the remaining counts on which the appellant was convicted. It was common ground that the appellant knew both K and C with whom he was friends on Facebook. K also had a connection with the appellant's mother. She and the appellant lived within close proximity to each other.
5.
C and K were at the same school in the same year group and had been friends when they were about 13, but by the time of the alleged incident involving K they were acquaintances rather than friends.
6.
K was allegedly raped on 7th January 2011 when she was 14 and the appellant was 18. She was seen by the police shortly afterwards and told them amongst other things that C used to go out with the appellant. C was then interviewed. One of the things she told the police was that the appellant had injured his penis when he had raped her.
7.
The appellant was arrested and interviewed and denied all the allegations as fabrications. He said he had an alibi in respect of the allegation made by K as he was in Leeds that day having some tattoos done to his arm. He was asked whether he had ever injured his penis when having sex with a partner and he said "no". He made no comment at a second interview apart from confirming the summary given to him of the account he had given in the first.
8.
The appellant's defence case statement served shortly before the trial was consistent with the account given by the appellant in interview, but now said that the appellant’s penis had been injured later, during a relationship with a different girl, ST. It went on: "The defence suspect that C might be aware of that type of injury as she had a physical relationship with a lad called [AH] to whom a similar injury occurred. [AH] also knew that the defendant had suffered the same injury and may have discussed it with (C)".
9.
Following service of the defence case statement, the prosecution served further evidence (from a tattoo artist and a mobile phone expert) which undermined the appellant’s alibi and showed the appellant's phone in use in the area in which both he and K lived all day on 7th January 2011. A statement from AH was also served in which he said in categorical terms that he had never been in a relationship with C, sexual or otherwise, nor had he ever sustained any sort of injury to his penis.
10.
K gave evidence that on 7th January 2011 (she thought it was that day because she had been at home unwell from school all that week) the appellant popped up on Facebook and said he had something to bring round for her mother. He came round by taxi to her home. When he arrived he started pleading for a kiss. She refused and he went up to her bedroom. She followed him to see what he was doing and found him on her bed. He dragged her into the bedroom, pushed her against the wall and tried to kiss and cuddle her. He pushed her onto the bed and despite her protests pulled her trousers down and forced himself upon her, penetrating her with his penis. The appellant left shortly afterwards in a taxi. She told her boyfriend about a week later, then her mother, and the police were then contacted.
11.
A taxi driver, R, was called. He knew both the appellant's family and K's family. He was not able to pin down a particular date but at about the time of the alleged offence against K, he said he had driven the appellant in his taxi from the appellant's house to K’s house.
12.
K's mother said K had been away from school for the whole of the week ending on Friday 7th January. About a week later, K told her that she had been raped.
13.
C said she had a short relationship of about two weeks with the appellant in the summer of 2009 when she was 13 years old and he was 17. She felt bad about the fact that they had split up and in about October 2009 they went for a walk together in the woods. Whilst they were there the appellant pushed her against a tree and penetrated her with his penis, even though she told him to stop. He did stop but only because he had damaged his penis. She said he snapped his foreskin. She said there was blood everywhere and he said he was going to the local A&E department. They stopped seeing each other for a while, but later on, there were four further incidents of consensual sexual activity between March 2010 and March 2011 when she 13 or 14, which occurred because she was “a gullible girl”. Two were of oral sex (these formed the basis of counts 1 and 2) and two were sexual intercourse (these formed the basis of counts 4 and 5). Three of the incidents had taken place at the appellant's house and one at his grandmother's house of which C gave descriptions.
14.
At the close of C’s evidence in chief (which had been given by showing the jury her ABE interview) the defence asked to cross-examine C pursuant to the provisions of
sections 41
and 42 the
Youth Justice and Criminal Evidence Act 1999
.
15.
Sections 41
and 42 provide so far as relevant:
"41 Restriction on evidence or questions about complainant's sexual history.
(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court—
(a) no evidence may be adduced, and .
(b) no question may be asked in cross-examination,
By or on behalf of any accused at the trial, about any sexual behaviour of the complainant.
(2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied—
(a) that subsection (3) or (5) applies, and
(b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.
(3) This subsection applies if the evidence or question relates to a relevant issue in the case and either—
(a) that issue is not an issue of consent; or
...
(4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.
(5) This subsection applies if the evidence or question—
(a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and
(b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused.
(6) For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate).
...
(8) Nothing in this section authorises any evidence to be adduced or any question to be asked which cannot be adduced or asked apart from this section.
42 Interpretation and application of
section 41
.
(1) In
section 41
—
(a)'relevant issue in the case' means any issue falling to be proved by the prosecution or defence in the trial of the accused;
...
(c) 'sexual behaviour' means any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding (except in
section 41(3)
(c)(i) and (5)(a)) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused... "
16.
In accordance with those provisions, the court may not give leave in relation to any evidence or question of the nature which potentially falls under
section 41
unless it is satisfied that
section 41(3)
or
section 41(5)
applies and that the refusal might have the result of rendering unsafe a conclusion of the jury or the court on any relevant issue in the case falling to be proved by the prosecution or the defence at the trial.
17.
The defence said it wanted to ask C about her sexual relationship with AH having regard to the matters raised in the defence case statement to which we have referred. It was submitted that the defence was not simply trying to impugn C's credibility, but wanted to ask these questions as they were relevant to how she could have come to know about the appellant's condition and injury. The prosecution submitted these matters could be dealt with without going into C's sexual history.
18.
The Recorder rejected the application. In his view there was arguably a relevant issue within
section 41(3)
. However it was a reasonable assumption that the purpose or main purpose for which the evidence would be adduced or questions asked was to establish or elicit material to impugn the credibility of the complainant as a witness, and refusal of leave would not lead to an unsafe conviction. In view of his ruling he said the appellant should not be cross-examined as to how C came to know of the injury, and he left open the possibility that the issue could be raised again.
19.
By agreement between the prosecution and the defence, AH was not then called to give evidence.
20.
The jury heard from a further witness JW with whom C had been in an on/off relationship for about two years. He said in about April or May 2010 C told him that the appellant had bent her over a tree, tried to have sex with her, but then his "banjo snapped" which meant his penis was bleeding. He said she was upset and had not told anyone about this before. He suggested she tell her family but she never raised it again.
21.
Records from the local hospital showed the appellant had gone to hospital on 2nd December 2009 and complained he was having sex with his partner when he found a wound to his penis. The notes recorded the appellant saying a similar thing had happened to him before: two weeks and also two months earlier.
22.
The appellant, who was of previous good character, acknowledged he knew both the complainants but in his evidence maintained his account that both girls were making the allegations up. He now accepted he was in the vicinity of his home and that of K, on 7th January 2011 and said he had got his dates mixed up. As for the injury to his penis, he said this had resulted from sexual activity with a different girl, ST; and he had denied having such an injury in interview because he had misunderstood the question. He also said that C's descriptions of his grandmother's house and his own could have been gleaned from Facebook.
23.
A statement from ST was read. It confirmed she had a brief relationship with the appellant from about 31st October 2009 which lasted about three weeks and during which the appellant's penis started bleeding whilst they were having sex and she and the appellant then went to the local A&E department.
24.
Mr Smith, who appears on behalf of the appellant today and appeared for him at the trial, submits the judge was wrong to refuse the
section 41
application as the line of questioning he wished to pursue with C related to an important issue in the case, how she could have come to know of the appellant's injury, and it did not relate to credit. He submits it was evidently unfair to prevent the appellant from exploring this issue, not least because the Recorder when summing the case up to the jury identified it as one matter they might wish to consider.
25.
We do not accept that submission. In our view this was not a matter for an application under
section 41
at all. The appellant had an unusual problem affecting his penis. The obvious question for the jury was how C would have known about it unless she had had intercourse with him at some point, as she said she had and the appellant denied. That was the issue. The appellant's somewhat tentative suggestion in the defence case statement was that she may have known about it because AH told her. However there was no basis to cross-examine C about what AH may or may not have told her, except speculatively having regard to the content of AH’s statement in which he said very clearly not only that he had no such injury but that he had never had any conversation with C of the nature described in the defence case statement. To this the appellant's instructions on the matter, to which Mr Smith referred us, could add nothing.
26.
The Recorder at one point during the course of his exchanges with Mr Smith said he might be willing to permit the issue – that is whether AH had ever spoken to C about the appellant’s condition/injury – to be explored with both C and AH but without going into whether C and AH did or did not have a sexual relationship. As it was, the fact that the defence did not then require AH to be called after the Recorder made his ruling does not surprise us. First of all, as we have already said, there was no basis apart from a speculative one upon which to cross-examine either C or AH. Further, if AH had been called and asked whether the appellant had told him of his unusual condition and whether he had then spoken of it to C, there was every risk that AH would have said, as his statement did, that no such conversation with either the appellant or C had ever taken place, which would have put the appellant in an even more difficult position than he was already in.
27.
Whether C and AH had had a sexual relationship, which was what Mr Smith said he wanted to ask C about, was simply irrelevant to any issue the jury had to consider, even if it was the case that curiously AH and the appellant suffered from the same unfortunate condition. In our judgment the Recorder was thus right to refuse the application in respect of evidence which could only, and impermissibly, go to credit.
28.
We add this. We note that no notice was given of the
section 41
application by the defence. It was not made in writing and the questions which the defence wished to ask were not particularised. This was a serious and inexcusable breach of Part 6 of the Criminal Procedure Rules. The rules are there for a reason. The failure to comply with them makes it more likely that things will go wrong at the trial, either because the statutory protection given to the complainants in sexual offence proceedings will be undermined or because the defence will be prohibited from pursuing a legitimate line of questioning. In this case, the Recorder had to deal at short notice with the application when neither the basis for it nor the questions the defence wanted to ask were clearly articulated to him even orally. Fortunately, notwithstanding those difficulties, in our judgment for the reasons we have given we consider he came to the right conclusion.
29.
Two further grounds of appeal were advanced in the written grounds of appeal, but in the event Mr Smith pursues only one of them before us today. He submits that the Recorder was wrong to tell the jury that the date of the alleged offence against K (7th January 2011) was not a material averment.
30.
In his summing-up the Recorder said this:
31.
"I have no more to say about the indictment except that the first five counts, all concerning C, deal with a range of times, whereas count 6 deals with a specific date, 7th January 2011. Now, that specific date obviously is important as a matter of evidence, but as a matter of law the date alleged is not crucial to a finding of guilt, because, if you think about it, if you were satisfied on the evidence that K had been raped but that it had taken pleas on the Thursday before or the Saturday after, then the defendant would still be guilty. The prosecution do not have to satisfy you so that you feel sure that this was not only rape but rape on 7th January of 2011, but of course because a specific date is alleged then this brings into play the issue of what the defendant was in fact doing on that day, and more of that later."
In our view no criticism can be made of that direction. As the Recorder went on to remind the jury, the point as to date was a matter of evidential significance given the way the case on this count was advanced by the prosecution and having regard to the evidence they had heard which bore on this issue during the trial; and he then gave them full and careful directions on the material evidence, including what the appellant had said about the matter.
32.
We are not therefore persuaded by either ground of appeal advanced but are satisfied the appellant’s conviction on all counts is safe. The appeal against conviction is therefore dismissed. | {"ConvCourtName": ["data not available"], "ConvictPleaDate": ["9th October 2012"], "ConvictOffence": ["rapes", "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": ["five years", "three years", "total of eight years' detention in a young offenders’ institution"], "SentServe": ["consecutive"], "WhatAncillary": ["Sexual Offences Prevention Order"], "OffSex": ["he"], "OffAgeOffence": ["18"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["appellant's house"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["appellant knew both K and C"], "VictimType": ["C"], "VicNum": ["second rape was alleged to have been committed against K"], "VicSex": ["She"], "VicAgeOffence": ["14"], "VicJobOffence": ["13 years old"], "VicHomeOffence": ["been at home"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["further evidence (from a tattoo artist and a mobile phone expert)", "K gave evidence"], "DefEvidTypeTrial": ["Records from the local hospital", "alibi", "denied all the allegations as fabrications"], "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": ["the Recorder was wrong to tell the jury that the date of the alleged offence against K (7th January 2011) was not a material averment."], "SentGuideWhich": ["submits the judge was wrong to refuse the section 41 application as the line of questioning", "section 39 Children and Young Persons Act 1933", "Sexual Offences (Amendment) Act 1992", "section 1(1) Sexual Offences Act 2003", "sections 41 and 42 the Youth Justice and Criminal Evidence Act 1999."], "AppealOutcome": ["dismissed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["We are not therefore persuaded by either ground of appeal advanced but are satisfied the appellant’s conviction on all counts is safe."]} | {"ConvCourtName": ["data not available"], "ConvictPleaDate": ["2012-10-09"], "ConvictOffence": ["sexual activity with a child", "rapes"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["data not available"], "Sentence": ["five years", "three years", "total of eight years' detention in a young offenders’ institution"], "SentServe": ["Consecutive"], "WhatAncillary": ["Sexual Offences Prevention Order"], "OffSex": ["All Male"], "OffAgeOffence": ["18"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individuals"], "VicNum": ["2"], "VicSex": ["All Female"], "VicAgeOffence": ["14"], "VicJobOffence": ["Child"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Victim testimony", "Witnesses"], "DefEvidTypeTrial": ["Records from the local hospital", "Offender claims to have alibi", "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 Recorder was wrong to tell the jury that the date of the alleged offence against K (7th January 2011) was not a material averment."], "SentGuideWhich": ["submits the judge was wrong to refuse the section 41 application as the line of questioning", "sections 41 and 42 the Youth Justice and Criminal Evidence Act 1999.", "section 1(1) Sexual Offences Act 2003", "section 39 Children and Young Persons Act 1933", "Sexual Offences (Amendment) Act 1992"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["We are not therefore persuaded by either ground of appeal advanced but are satisfied the appellant’s conviction on all counts is safe."]} | 410 |
2017/04403/A1
Neutral Citation Number:
[2018] EWCA Crim 1075
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Tuesday 1
st
May 2018
B e f o r e:
LADY JUSTICE SHARP DBE
MRS JUSTICE ANDREWS DBE
and
THE RECORDER OF LEEDS
(
His Honour Judge Collier QC
)
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
- - - - - - - - - - - - - - - - - - -
R E G I N A
- v -
RAYMOND GRAY
- - - - - - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd trading as DTI
165 Fleet Street, London EC4A 2DY
Telephone No: 020 7404 1400; Fax No 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - -
Miss L Collier
appeared on behalf of the Appellant
- - - - - - - - - - - - - - - - - - -
J U D G M E N T
Tuesday 1
st
May 2018
LADY JUSTICE SHARP:
I shall ask Mrs Justice Andrews to give the judgment of the court.
MRS JUSTICE ANDREWS:
1. On 27
th
June 2017, following a trial in the Crown Court at Northampton, the appellant was convicted of one count of conspiracy between 1
st
January and 3
rd
August 2016 to supply a controlled drug of Class A (cocaine). His five co-accused had all pleaded guilty at various times to being involved in the same conspiracy, as well as to other offences. All six were sentenced on 8
th
September 2017. The appellant received a sentence of seven years and six months' imprisonment. He appeals against that sentence with the leave of the single judge.
2. The case followed a detailed and lengthy police investigation into the criminal activities of a number of individuals who were engaged in the supply of very large quantities of cocaine. The scale of the drug-related activities and the level of the criminality involved provided powerful support for the conclusion that they were well-established and already active at the time that the police investigation started in and around August 2016. The police used various means and techniques to investigate the group's actions, and to demonstrate who was involved and the level of offending. This evidence included cell-site evidence, vehicle evidence (ANPR), observation evidence, reviews of CCTV footage and evidence of money passing through bank accounts, as well as evidence of what was found after searches of premises used by the group.
3. Andrew Morales was the leader of an organised criminal group based in Northampton. He was a very high level cocaine dealer organising and arranging the obtaining and supply of many kilograms of cocaine. His right-hand man, involved in many aspects of the running of the group, was Barry Moylan. Moylan carried out the riskier elements of the business, collecting, storing, moving and passing on the cocaine and organising the activities of lower members of the hierarchy. Asa Beasley was involved in the storage and transportation of the drugs which were passed on to Clive Andrews, who was responsible for their cutting and onward distribution.
4. Such was the scale of Morales' enterprise that he sourced his cocaine from another significant drug dealer: the appellant's brother, Richard Gray, who was based in the Warrington area. Richard Gray had access to large quantities of import-strength cocaine and must have had extremely close links to those who were involved in the importation of the drugs into the United Kingdom.
5. The Crown's case at trial was that the appellant was directly involved in the supply of cocaine on at least one occasion and that he played an important role by assisting his brother in supporting the arrangements for the supply of cocaine to Moylan's group.
6. On 2
nd
August 2016, at 9.15pm, police officers in an unmarked police vehicle saw Beasley driving a VW transporter on the A50, heading southbound. Beasley was returning from a trip to Warrington, where he had met Richard Gray, and was en route to meet Andrews. The officers stopped the vehicle and arrested Beasley. A search revealed a kilogram block of compressed cocaine at 64 per cent purity, worth somewhere between £30,000 and £91,000.
7. Research around ANPR and telecommunications data identified further dates when either Moylan or Beasley had travelled to Warrington for the same purpose: i.e. to collect drugs.
8. Following Beasley's arrest, Morales and Andrews were in communication with each other. They made various attempts to contact Beasley and were also in communication with members of his family, plainly in an attempt to locate him. They were subsequently arrested by the police in or around December 2016.
9. There was no evidence that the appellant had any involvement in the events that took place on 2
nd
August 2016 involving the co-accused, leading to the arrest of Beasley and the discovery of a large quantity of cocaine in his vehicle. The Crown used those events as an example of the nature and seriousness of the criminal enterprise in which Richard Gray and Morales were the prime movers. It was an important starting point when considering all further interactions between the Morales group and Richard Gray, and provided important context and background for other days when the appellant
was
involved.
10. There was strong circumstantial evidence that on 21
st
April 2016 the appellant was the person who met with Moylan at a location in Warrington to hand over drugs supplied by his brother. Shortly afterwards, Moylan was in contact with Morales.
11. Besides the evidence of the events of 21
st
April 2016, the Crown also relied on evidence of a meeting on 30
th
June 2016 between the appellant and Andrews at the Shell Services station at the junction of the A50 and the A38, near Uttoxeter, which plainly had to do with the ongoing supply of cocaine to Morales' group. Although there was no evidence that drugs were handed over on the occasion of that meeting, cell-site evidence indicated numerous telephone conversations between the brothers, closely followed by contact between Richard Gray and Morales, who in turn contacted Andrews, presumably to set up the meeting.
12. On the evening of 17
th
July 2016, Richard Gray had a meeting with Beasley and Andrews, again at the Shell Services station. Cell-site evidence showed that Richard Gray was in frequent contact by telephone earlier that day with Morales and with the appellant, and that Morales was contacting Moylan, Andrews and Beasley. Both Beasley and Andrews had further telephone contact with Morales following the meeting. Within 20 minutes of the meeting, Richard Gray was in telephone contact with the appellant, who was at home in Warrington.
13. There was no evidence of any direct telephone contact between the appellant and any member of the conspiracy, other than his own brother. The only evidence of personal meetings was the evidence of the meeting with Moylan in April 2016 and the meeting with Andrews on 30
th
June.
14. The appellant was arrested at his partner's address on 31
st
January 2017. He made no comment.
15. The Crown provided sentencing notes for the sentencing exercise. In reference to the definitive sentencing guidelines for the supply of Class A drugs, the Crown stated that there were elements of significant and lesser role in the appellant's case. They said at paragraph 70 of the notes:
"Given the quantity of drugs involved and his distinct role, [the appellant's] case could be said to fall within category 2, with a starting point based on 1 kilogram of cocaine."
They then set out the range in the sentencing guidelines and continued:
"However, it is submitted that the nature and scale of [the appellant's] offending – twice the quantity for the suggested starting point – requires an upward adjustment of the starting point within the above ranges. Furthermore, the high purity of the drugs involved is an aggravating feature in this case."
They then referred to what is said about purity in the definitive guidelines.
16. Miss Collier (who did not appear below) submitted, as indeed did defence counsel at the sentencing hearing, that this was a case that fell squarely into the "lesser" role. The judge had given some indication that he was attracted by that submission, although when the prosecution opened the case, the transcript makes it clear that he had not yet formed a final view on the point.
17. Miss Collier referred this court to
R v Kasim Ali Khan and Others
[2013] EWCA Crim 800
, in which an explanation was given by this court as to how sentencing judges should approach the use of the guideline in cases of conspiracy. At [34] and [35] Treacy LJ said this:
"34. … a particular individual within a conspiracy may be shown only to have been involved for a particular period during the conspiracy, or to have been involved in certain transactions within the conspiracy, or otherwise to have had an identifiably smaller part in the whole conspiracy. In such circumstances the judge should have regard to those factors which limit an individual's part relative to the whole conspiracy. It will be appropriate for the judge to reflect that in sentence, perhaps by adjusting the category to one better reflecting the reality.
35. As a balancing factor, however, the court is entitled to reflect the fact that the offender has been part of a wider course of criminal activity. The fact of involvement in a conspiracy is an aggravating feature since each conspirator playing his part gives comfort and assistance to others knowing that he is doing so, and the greater his or her awareness of the scale of the enterprise in which he is assisting, the greater his culpability."
18. In his sentencing remarks, the judge rightly described the central conspiracy as a very substantial operation consisting effectively of the importing of cocaine from the north-west of the country and bringing it down to Northamptonshire for it to be processed by cutting and packaging and then distributed from that stage onwards. He ascribed to Morales and Moylan the central roles in each of the contacts with the Grays in the north-west. He described the appellant as an assistant on more than one occasion to his brother. He decided that Richard Gray and Morales fell within the category of "leading" role and that Moylan, Andrews and Beasley fell into the category of "significant" role. He then said this:
"As far as [the appellant] is concerned, because he was acting as an occasional deliverer for his brother and otherwise a gofer for his brother, it seems to me I can deal with him as having a lesser role, but as I have already said, I am satisfied that not only is he guilty of what the jury found him guilty of, and what he has had to admit as a result of that, but his knowledge of this operation is more than he was ever prepared to accept."
Bearing in mind that the appellant fell below the level of Moylan and Beasley, for whom he had taken the starting point of nine years, before discount for Beasley's guilty plea, the judge took a starting point of eight years' imprisonment for the appellant and adjusted it downwards to seven years and six months to take account of the fact that the appellant had never before been involved in any offending of this nature, despite the fact that he had other previous convictions.
19. Miss Collier submitted that this was a manifestly excessive sentence, notwithstanding that it fell squarely within the ambit of the range in the guidelines for a person with a lesser role in a category 1 conspiracy. For such an individual the starting point is one of seven years' custody, with a range of six to nine years. The cocaine was of high purity, which is a statutory aggravating factor, but there were no relevant or recent convictions, which is a mitigating factor. She submitted that, even if the judge had been right to leave the appellant within the category of "lesser" role in a category 1 conspiracy, there was no justification in an uplift from the starting point in the guidelines of seven years' custody in his case.
20.
However, Miss Collier’s principal submission was that where the judge fell into error in this case was in not following the guidance of this court in relation to the isolated offences or the role that was placed within the overall conspiracy; and that the judge should in fact have reflected the overall offending by bringing the appellant back down into category 2. Having done so, he should have taken a starting point of five years' custody. We note that the range within that category is between three years six months and seven years' custody. As the prosecution pointed out in their sentencing note, the high purity of the drugs involved would be an aggravating feature, and indeed there was evidence to suggest that the appellant's offending involved not only a drop of drugs of around a kilo on one occasion, but certainly involvement in setting up another such drop or organisation of such a drop on another occasion. These matters would have justified the judge, even if he had taken category 2 as his starting point, in elevating the offending to somewhere near the top end of the category. We also bear in mind the fact that this was an offence of conspiracy.
20. The judge, of course, had the advantage of hearing all the evidence at trial and assessing the parts that were played by each of the offenders within the conspiracy. It may well be that he could have explained his reasoning in a little more detail, and it may well be that the appellant might feel a little harshly dealt with. It was certainly a robust sentence. But if one stands back and looks at the overall offending and the nature of this conspiracy, it seems to us that the judge was entitled to come to the conclusion that the appellant had a greater knowledge of the scale of the operation than he was prepared to admit. He was best placed to evaluate the appellant’s role overall. There were some features which were more akin to "significant" than "lesser" role, and there is not that much of a difference between the upper end of category 2 and the mid-range or lower range of category 1.
21. Standing back and looking at this sentence overall, it seems to us that, whilst it was on the robust side, this sentence could not be described as manifestly excessive for the offending involved. For those reasons, despite the engaging way in which the appeal was advanced by Miss Collier, this appeal is dismissed. | {"ConvCourtName": ["Crown Court at Northampton"], "ConvictPleaDate": ["27th June 2017"], "ConvictOffence": ["conspiracy between 1st January and 3rd August 2016 to supply a controlled drug of Class A"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Northampton"], "Sentence": ["seven years and six months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["His"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["appellant, who was at home in Warrington"], "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 investigation", "evidence of money passing through bank accounts", "cell-site evidence, vehicle evidence (ANPR), observation evidence, reviews of CCTV footage"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["nature and seriousness of the criminal enterprise", "cocaine was of high purity, which is a statutory aggravating", "elements of significant and lesser role"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["five co-accused"], "AppealAgainst": ["against that sentence"], "AppealGround": ["the judge fell into error in this case was in not following the guidance of this court in relation to the isolated offences or the role", "submitted that this was a manifestly excessive sentence"], "SentGuideWhich": ["definitive sentencing guidelines for the supply of Class A drugs"], "AppealOutcome": ["appeal is dismissed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["it seems to us that the judge was entitled to come to the conclusion that the appellant had a greater knowledge of the scale of the operation than he was prepared to admit."]} | {"ConvCourtName": ["Crown Court At Northampton"], "ConvictPleaDate": ["2017-06-27"], "ConvictOffence": ["conspiracy between 1st January and 3rd August 2016 to supply 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 Northampton"], "Sentence": ["seven years and six months' 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": ["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 evidence", "Police evidence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["cocaine was of high purity, which is a statutory aggravating", "elements of significant and lesser role", "nature and seriousness of the criminal enterprise"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["5"], "AppealAgainst": ["against that sentence"], "AppealGround": ["the judge fell into error in this case was in not following the guidance of this court in relation to the isolated offences or the role", "submitted that this was a manifestly excessive sentence"], "SentGuideWhich": ["definitive sentencing guidelines for the supply of Class A drugs"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["it seems to us that the judge was entitled to come to the conclusion that the appellant had a greater knowledge of the scale of the operation than he was prepared to admit."]} | 197 |
Neutral Citation Number:
[2014] EWCA Crim 2908
Case No:
201403192/A5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 18th December 2014
B e f o r e
:
LORD JUSTICE ELIAS
MR JUSTICE SIMON
MR JUSTICE COX DBE
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
VAIDAS ASKYS
- - - - - - - - - - - - - - - - - - - - -
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 Kitson (Solicitor-Advocate)
appeared on behalf of the
Appellant
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE ELIAS: On 30th April 2014 in the Crown Court at Woolwich before His Honour Shorrock, the applicant pleaded guilty to a count of possessing a controlled drug of Class A with intent and he received a sentence of thirteen-and-a-half years' imprisonment on 24th June in relation to that offence. On 14th May a separate count was added to the indictment, possession of a false identity document, and he also pleaded guilty to that offence and was given 6 months' imprisonment consecutive. So the total sentence in his case was 14 years. A co-accused, Henry Duksavius, pleaded guilty to possessing a controlled drug of Class A and he was sentenced to 9 years' imprisonment. The appellant now seeks an extension of time in which to renew his application for leave to appeal against sentence following a refusal by the single judge and of course he seeks leave to appeal.
2.
Given the nature of the grounds, the facts can be stated very summarily. They involve, as we have said, a significant drug operation, involving drugs of street value of around £4.5 million.
3.
There is nothing wrong with the sentence as such, as counsel concedes. He has really a single point in this appeal and it concerns the different way in which the judge dealt with the credit he was going to give for the pleas. In the case of Duksavius the judge gave credit of 33% and in the case of the applicant it was 25%. Counsel submits that in the circumstances there was no material difference between the two defendants. Each had not pleaded at the preliminary hearing and had pleaded later. It is true, as he concedes, that the plea and case management hearing of the co-defendant was earlier in time but that was because of difficulties facing counsel, it was for no good reason and essentially the judge was not entitled to draw the distinction that he did.
4.
The first point to note is that there can be no complaint at all it seems to us about a reduction limited to 25% for this applicant in all the circumstances of the case. He did not plead at the earliest opportunity and in the usual way cannot expect to have full credit for his plea.
5.
The judge specifically addressed the question whether the credit given to the two co-defendants should be the same and he concluded that they should not. He said in terms:
"...I am not impressed by the fact that apparently reasons are connected with your representation rather than anything else. Had you shown that you were truly remorseful of this for the word go, you in your possession could have indicated that at a much earlier stage."
6.
It is always difficult to argue disparity before the courts, particularly when a judge has dealt with a matter and addressed it directly. He was of course was in a much better place than we are to assess what credit should be given and he came to the view that he did. In addition, it has to be said that the circumstances of the co-defendant were quite different for other reasons which also have to be taken into account when looking at the sentences overall. He was given credit for other considerations which do not weigh in this case.
7.
Although the matter has been put very attractively by counsel, who has made the points succinctly, nonetheless we are not persuaded that we should grant leave in this case. There was nothing wrong with the credit given to this applicant and therefore we refuse leave. | {"ConvCourtName": ["Crown Court at Woolwich"], "ConvictPleaDate": ["30th April 2014"], "ConvictOffence": ["possession of a false identity document", "possessing a controlled drug of Class A with intent"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["not pleaded at the preliminary hearing and had pleaded later."], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Woolwich"], "Sentence": ["otal sentence in his case was 14 years", "thirteen-and-a-half years' imprisonment", "6 months' imprisonment"], "SentServe": ["consecutive"], "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": ["data not available"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["a significant drug operation, involving drugs of street value of around £4.5 million."], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["applicant pleaded guilty t"], "CoDefAccNum": ["A co-accused, Henry Duksavius"], "AppealAgainst": ["appeal against sentence"], "AppealGround": ["In the case of Duksavius the judge gave credit of 33% and in the case of the applicant it was 25%."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["refuse"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["here was nothing wrong with the credit given to this applicant"]} | {"ConvCourtName": ["Crown Court At Woolwich"], "ConvictPleaDate": ["2014-04-30"], "ConvictOffence": ["possession of a false identity document", "possessing a controlled drug of Class A with intent"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["not pleaded at the preliminary hearing and had pleaded later."], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court At Woolwich"], "Sentence": ["otal sentence in his case was 14 years", "6 months' imprisonment", "thirteen-and-a-half years' imprisonment"], "SentServe": ["Consecutive"], "WhatAncillary": ["Don't know"], "OffSex": ["All Male", "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": ["Don't know"], "DefEvidTypeTrial": ["Don't know"], "PreSentReport": ["Don't know"], "AggFactSent": ["Don't know", "high profit crime"], "MitFactSent": ["Don't know"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["1"], "AppealAgainst": ["appeal against sentence"], "AppealGround": ["co-def received 33% credit/reduction in sentence, appellant received only 25%"], "SentGuideWhich": ["Don't know"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["here was nothing wrong with the credit given to this applicant"]} | 585 |
Neutral Citation Number:
[2010] EWCA Crim 1938
Case No: 200903932 C1 AND 200906012 C1
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM IPSWICH CROWN COURT
His Honour Judge McKittrick
T20080459
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
05/08/2010
Before :
LORD JUSTICE MOORE-BICK
MRS JUSTICE RAFFERTY
and
HIS HONOUR JUDGE GILBERT QC (SITTING AS A JUDGE OF THE HIGH COURT)
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
Respondent
- and -
Valji Lalji VARSANI
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Tom Little
(instructed by the
Crown Prosecution Service
) for the
Respondent
Ronald Jaffa
(instructed by
Tuckers Solicitors
) for the
Appellant
Hearing date: 20
th
July 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment
Mrs Justice Rafferty :
1.
On 27
th
April 2009 in the Crown Court at Ipswich the appellant Valji Lalji Varsani pleaded guilty to three counts of being knowingly concerned in the fraudulent evasion of duty contrary to
section 170(2)(a)
of the
Customs and Excise Management Act 1979
. On 26
th
June 2009 in the same court he was sentenced concurrently on each count to 5 years imprisonment. On 2
nd
October 2009 in the same court in confiscation proceedings under the
Proceeds of Crime Act 2002
he was found to have benefited in the sum of £2,241.761.29. His realisable assets were deemed to be £516,278.50 and a confiscation order was made in the same amount payable within 8 months with 18 months imprisonment in default consecutive to the substantive offence. An available amount, £516,217.50, was agreed, the benefit figure of £2,241.761.29 was not.
2.
He appeals against sentence by leave of the single judge and the Registrar has referred his application for leave to appeal against the Confiscation Order to the Full Court. We grant leave.
3.
The appellant was involved in the importation of 11.5 million cigarettes from China. On 29
th
and 31
st
March 2008 and 27
th
April 2008 at Felixstowe docks, containers, purportedly containing DVDs, were searched. Each revealed a large quantity of counterfeit cigarettes and a small number of DVDs. The consignee for the first was DVD Media Wholesale Limited (“DVD”), incorporated in February 2006, Ruben Komal and Ramesh Varma named as directors, aliases used by the appellant. DVD’s fax number was the same as that for Vision Warehouse Limited (“Vision”), of which the appellant was the sole director. Vision had a tenancy agreement on the industrial estate where the items were delivered; an agreement varied to the location of the delivery. The consignee for the second and third containers was DVD Products Direct Limited, incorporated in November 2007 and Vision, with whom it shared a fax number, paid the setting up fee. A few days after the first container was examined by Customs officers the appellant, Ruben Komal copied in, emailed the importing agents, Mayner Imports Limited, and paid their fees. Komal’s email address had been set up at the leisure centre of which the appellant was a member. The appellant had sat in a motor car whilst a number of men unloaded the first container. Telephone analysis revealed that he had been in contact with two of them. He was arrested in possession of £4,860. Interviewed on two occasions he made no comment.
4.
The prosecution calculated the duty as approximately £2.2 million. The appellant argued it should a lower figure because the cigarettes were counterfeit and would be sold at a substantial discount. The prosecution accepted some discount but argue that the fact the cigarettes were counterfeit was irrelevant for two reasons: as a matter of law the value of the duty, as calculated according to
section 5(1)(b)
of the
Tobacco Products Duty Act 1979
, should ignore the fact the goods were counterfeit and be interpreted in accordance with the principle of fiscal neutrality; and, as a matter of sentencing policy a smuggler of counterfeit goods should not be treated more favourably than one of genuine goods. The Judge, after considering
Goodwin
[1998] EUECJ C -3/97 and
R v. Carlo Citrone
and
John Citrone
CA 26
th
November 1998 (unreported), agreed with the principle of fiscal neutrality and said it should be used to calculate the duty payable in
section 5(1)(b)
. If wrong on that he agreed with the prosecution’s second point concerning sentencing policy.
5.
As to sentence there were four aggravating features: the Appellant had played an important organisational role; there were three separate importations; it was a sophisticated and professional smuggling operation; and legitimate businesses were used as a front. He was 42 and had been of good character. The starting point was 6 years, some credit for plea reducing the term to 5 years. The maximum is 7 years.
6.
Grounds of appeal as to imprisonment are as follows:-
1
. The Judge erred in finding that the words in the
Tobacco Products Duty Act 1979 section 5(1)
(b) “
the highest price at which cigarettes of that description are normally sold by retail at that time in the United Kingdom”
can be taken to mean the retail price of genuine
cigarettes manufactured and sold in the UK;
2. The Judge erred in finding that even if his interpretation of those words was wrong then the principle of fiscal neutrality should be used to put the smuggler of counterfeit cigarettes which attract a lower excise duty for sentence on the same basis as the smuggler of genuine cigarettes which attract a higher excise duty
7.
As to the confiscation order
:
The Judge decided the benefit figure of £2,241,761.29 on the wrong basis.
8.
On the same day as sentence but prior to mitigation and sentence there was legal argument about the correct amount of excise duty. The nub was
that the prosecution had calculated the excise duty on the retail price of genuine Benson and Hedges, Sovereign Kingsize cigarettes manufactured and sold in the UK. The defence submitted that the calculation should be on the basis of
the highest price at which cigarettes of that description are normally sold by retail at that time in the United Kingdom,
i.e. the retail price of counterfeit cigarettes of the description of the ones imported. The excise duty is calculated on the basis of the retail price.
9.
The judge, as did this court, had photographs of the counterfeit and of genuine Benson and Hedges cigarettes manufactured in the UK and saw a packet of the latter purchased in the UK. Differences included the absence on the counterfeit of the health warning and of photographs of cancerous growths, and the writing on the counterfeit cigarettes was in Cyrillic script. It was not argued that if presented to Customs they would have been treated as genuine. The defence argued that the system in S5
Tobacco Products Duty Act 1979
for deciding “
the highest price at which cigarettes of that description are normally sold by retail at that time in the United Kingdom”
would not have led Customs to decide that the correct figure was the price of genuine cigarettes. The judge found in favour of the prosecution and sentenced on the basis of duty of £1,907,881.95 and VAT of £333.879.34. The importance of quantifying the amount of excise duty stems from the guideline case of R. v. Czyzewski [2004] 1 Cr.App.R.(S.) For cases up to £1million appropriate starting points on conviction of a person with no relevant previous convictions would be up to five years and in excess of that amount, up to seven years.
10.
If the correct method of calculating the excise duty were not by reference to the retail price of genuine cigarettes manufactured by Benson and Hedges then it was not disputed that the prosecution would have to produce evidence of the retail price at which counterfeit cigarettes are sold. As a guide the prosecution computed the duty on the basis of the retail price of genuine Benson & Hedges at £4.88 per pack of 20 cigarettes or £48.80 per sleeve of 10 packs. To assist, the Appellant suggests that these counterfeit cigarettes would be sold for about £16-22 per 10-pack sleeve, 33% -45% of £48.80. Hence, so the submission goes, duty evaded would have been below £1 million and the starting point for sentence 5 years or less.
11.
The Judge concluded that the retail price as stated in
section 5(1)(b)
should be decided in accordance with the principle of fiscal neutrality and referred to Goodwin and to Citrone. Even if he were wrong about the effect of
section 5(1)(b)
, he found that smugglers of counterfeit goods should not be better off than smugglers of genuine goods. The Appellant submits that the Judge was not applying the principle correctly. Fiscal neutrality as discussed in Goodwin merely refers to the equal treatment for VAT purposes of genuine and counterfeit goods where the sale of such goods (e.g. cigarettes) is not intrinsically illegal. It does not purport to decide at what retail price goods are sold. Goodwin related to whether VAT applied to counterfeit perfume, Citrone to prescription-only anabolic steroids sold illegally in contravention of the
Medicines Act 1968
.
12.
There is in our judgment no need to cloud the issue in this case by reference to fiscal neutrality, which we were grateful to note Mr Little for the Respondent mentioned before us with the lightest of touches. The issue for us is simply expressed; it is the proper construction of the phrase “of that description”. The legislation is directed primarily towards genuine products. The question posed throughout argument is how to apply it to counterfeit products. That such distinction goes to the issue of the benefit amount is no more than a consequence of legislation whose primary purpose is revenue-raising rather than sentencing. The Appellant’s contention that the pertinent question for the court is “What is the right retail price?” and that it would be odd were the answer “The same as that of non-counterfeit goods” seems with respect to counsel rather to stray from the point. Counterfeit goods are by their very definition designed to resemble, as closely as can be achieved, the genuine article. They must be made to look similar – that is the whole point of the illegitimate exercise.
13.
The Respondent submits that the duty evaded on the 11,510,600 counterfeit Sovereign King Size cigarettes was the same as that on the genuine. Even were the retail price of the cigarettes seized lower than that contended for by the Respondent, the duty evaded would still have been well in excess of £1,500,000. Accordingly the amount of duty would not have been below £1,000,000.00 if the cigarettes were worth between 33% and 45% of the value contended for by the Respondent.
14.
To determine whether a defendant has benefited from his criminal conduct the court must look at what property he has obtained as a result of or in connection with the conduct (
Section 76(4) POCA)
or determine the monetary value of any pecuniary advantage obtained as a result of or in connection with the conduct (
Section 76(5) POCA)
. A defendant obtains a pecuniary advantage by evading duty even though the smuggled goods were seized before they could be sold on (
Smith
[2002] 1 WLR 54
) so long as the defendant is the person who
“caused the tobacco products to reach an excise duty point”
(Regulation 13(3)(e) of the Tobacco Product Regulations 2001). It was not in issue that the Appellant qualified as one such. Accordingly his benefit was calculated on the basis of the duty he evaded.
15.
S5 Tobacco Products Duty Act 1979
reads where relevant :
“5.
Retail price of cigarettes.
(1)
For the purposes of the duty chargeable at any time under section 2 above in respect of cigarettes of any description, the retail price of the cigarettes
shall be taken to be
—
(a)
the higher of
—
(i)
the recommended price for the sale by retail at that time in the United Kingdom of
cigarettes of that description, and
(ii)
any (or, if more than one, the highest) retail price shown at that time on the packaging of the cigarettes in question,
or
(b)
if there is no such price recommended or shown, the highest price at which cigarettes of that description are normally sold by retail at that time in the United Kingdom.
(1A)
In subsection (1) above
“
recommended price
”—
(a)
in relation to a case in which cigarettes of the applicable description are manufactured by a manufacturer in a member State, means any price recommended by that manufacturer; and
(b)
in relation to a case which does not fall within paragraph (a) above, means any price recommended by an importer of cigarettes of the applicable description.”
16.
So far as counsel or this Court has discovered there is no reported case, criminal or civil, in which the ambit of this section has been considered. The Respondent below argued the calculation on the basis of S5(1)(b) but on reflection submits that reasoning should begin with S5(1)(a). Only if that does not apply should the Court move to S5(1)(b).
17.
The Respondent contends that an interpretation of S5(1) consistent with the intention of Parliament is plainly the maximization of duty charged. Hence S5(1)(a) refers to ‘the higher of’ and ‘the highest’ and S5(1)(b) to ‘the highest’. Such construction is consistent with the protection of Her Majesty’s Revenue & Customs and of lawful from unlawful trader. It cannot have been Parliament’s intention to require from the Commissioners detailed research into the retail price of counterfeit cigarettes on both the grey and black market. We find this a compelling argument.
18.
The Respondent argues that the cigarettes seized were of the same description as genuine branded Sovereign King Size for the purposes of the Act. The duty owed has been calculated by using the recommended retail price at the time for genuine Sovereign King Size cigarettes in accordance with S5(1)(a). In order to assist the Court (in relation to both the sentence and confiscation arguments) the Investigating Officer produced a table setting out the duty evaded based on a number of different retail prices for the cigarettes as well as a detailed calculation of the duty evaded if, as the Respondent submits is not the case, the cigarettes had no retail value at all. The duty is calculated as a two stage process, first the calculation of the ad valorem amount based on
22% of the retail price
and second with the addition of a fixed sum of
£112.07
per 1000 cigarettes. The retail price of the cigarettes is irrelevant for this second stage. For the purposes of our decision it is not necessary to set out the table since the mathematics of this appeal are not in issue.
19.
The whole point of counterfeit cigarettes is that they should be of the same description as those they purport to be. If the Respondent be right it does not matter if the retail price of the counterfeit cigarettes be slightly lower as long as both real and counterfeit cigarettes are of the same description. The Respondent reminds us that if we do not accept the Respondent’s arguments as to statutory construction and conclude that cigarettes “of that description” does not include the counterfeits then the Applicant has put forward no evidence, from himself or otherwise, to show that the retail price of counterfeits was any lower than non-counterfeits. In those circumstances it submits that even if the Court were to conclude that the Respondent’s interpretation is not correct there is no alternative factual basis (supported by evidence) upon which to calculate the benefit figure using S5(1)(b).
20.
We unhesitatingly accept the submissions of the Respondent. The purpose of the legislation is to establish the rate of duty to be paid on various types and descriptions of tobacco products. For that purpose Parliament can be taken to have recognised that different makes and brands of cigarettes are sold at different prices, but it cannot be taken to have intended that counterfeit goods should attract a lower rate of tax than the genuine goods which they seek to imitate. The expression “cigarettes of that description” includes both genuine goods and counterfeit goods of substantially the same type made up to resemble them. On these facts, we are confident that “of that description” includes “Sovereign cigarettes” offered for retail sale in the UK. To test our conclusion one could remind oneself that the script on the seized goods was Cyrillic. Assuming its origin were Russia, could it seriously be suggested that genuine Sovereign cigarettes packed for the Russian market were not caught by “of that description”? We think not. The adjective “counterfeit” is never likely to feature in any written description, but the statutory phrase must be wide enough and sufficiently generic to gather in both non-counterfeit and counterfeit. Any other conclusion on this issue would lead to the unhappy prospect of the smuggler being by virtue of legislation placed in a position better than that of the legitimate trader.
21.
We reject this appeal against the confiscation order. It was conceded that were we against the Appellant on the confiscation there was no merit in his appeal against sentence. That said, we reject that also. | {"ConvCourtName": ["Crown Court at Ipswich"], "ConvictPleaDate": ["27th April 2009"], "ConvictOffence": ["three counts of being knowingly concerned in the fraudulent evasion of duty"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Ipswich"], "Sentence": ["concurrently on each count to 5 years imprisonment."], "SentServe": ["concurrently"], "WhatAncillary": ["confiscation proceedings"], "OffSex": ["he"], "OffAgeOffence": ["42"], "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": ["Telephone analysis", "searched"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["businesses were used as a front", "benefited in the sum of £2,241.761.29", "important organisational role;", "three separate importations", "sophisticated and professional smuggling operation;"], "MitFactSent": ["credit for plea", "good character."], "VicImpactStatement": ["data not available"], "Appellant": ["Valji Lalji VARSANI\n \n Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence", "leave to appeal against the Confiscation Order"], "AppealGround": ["Judge decided the benefit figure of £2,241,761.29 on the wrong basis.", "Judge erred in finding", "Judge erred in finding that the words in the Tobacco Products Duty Act 1979 section 5(1) (b)"], "SentGuideWhich": ["section 170(2)(a) of the Customs and Excise Management Act 1979.", "Proceeds of Crime Act 2002"], "AppealOutcome": ["reject this appeal against the confiscation order. It was conceded that were we against the Appellant on the confiscation there was no merit in his appeal against sentence. That said, we reject that also."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["no merit in his appeal against sentence"]} | {"ConvCourtName": ["Crown Court At Ipswich"], "ConvictPleaDate": ["2009-04-27"], "ConvictOffence": ["three counts of being knowingly concerned in the fraudulent evasion of duty"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Ipswich"], "Sentence": ["concurrently on each count to 5 years imprisonment."], "SentServe": ["Concurrently"], "WhatAncillary": ["confiscation proceedings"], "OffSex": ["All Male"], "OffAgeOffence": ["42"], "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": ["Telephone analysis", "Containments/shipments searched"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["businesses were used as a front", "sophisticated and professional smuggling operation;", "three separate importations", "important organisational role;", "Financial gain"], "MitFactSent": ["credit for plea", "good character."], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence", "Other (e.g., application for extension of time to appeal)"], "AppealGround": ["Judge decided the benefit figure of £2,241,761.29 on the wrong basis.", "Judge erred in finding", "Judge erred in finding that the words in the Tobacco Products Duty Act 1979 section 5(1) (b)"], "SentGuideWhich": ["Proceeds of Crime Act 2002", "section 170(2)(a) 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": ["no merit in his appeal against sentence"]} | 258 |
No:
201505595/A2
Neutral Citation Number:
[2016] EWCA Crim 608
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Friday, 26th February 2016
B e f o r e
:
LORD JUSTICE McCOMBE
MR JUSTICE IRWIN
HER HONOUR JUDGE MUNRO QC
(Sitting as a judge of the CACD)
- - - - - - - - - - - - - - - - - - -
R E G I N A
v
RYAN MICHAEL PATRICK MCCLOSKEY
- - - - - - - - - - - - - - - - - - -
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)
- - - - - - - - - - - - - - - - - - -
Miss A Jackson
appeared on behalf of the
Appellant
The Crown was not present and was unrepresented
- - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE McCOMBE: On 22nd October 2015 in the Crown Court at Warwick before His Honour Judge Parker, the appellant pleaded guilty to an offence of burglary of commercial premises and on 20th November 2015 he was sentenced by Mr Recorder Hotten QC to 16 months' imprisonment for that offence. Having committed the offence during the 12 month operational period of a suspended sentence of 18 weeks' imprisonment imposed on 3rd July 2015 by the Coventry Justices the suspended sentence was activated in full, giving rise to a total sentence of 20 months' imprisonment. He now appeals against sentence by leave of the single judge.
2.
There were two co-accused, Billy John Swain, aged 24 and Andrew Keith Williamson, age 25, who also pleaded guilty to the same offence on the same day and were each sentenced by the learned Recorder to 16 months, like the present appellant.
3.
The facts of the case were these. On 18th August 2015 in the early hours of the morning a man in charge of CCTV at a base in Leeds was observing the screens portraying the scene at a construction site in Coventry when an alarm was triggered by one of the CCTV cameras. He could see on his screen three men wearing hooded tops looking through the window of the construction site cabin. He contacted the police. They attended with a dog handler soon thereafter and eventually spotted the appellant and his co-accused on the site who started to run away while the officers gave chase.
4.
It took some time to track the offenders down and they were eventually seen on the top of an embankment on the far side of a canal and were directed to come down from the embankment which they eventually did. They had obviously been concealing themselves in the canal because on arrest they were soaking wet.
5.
The police attended the construction yard following the capture of the appellant and his confederates. An examination of the site revealed that the port-a-cabin on site had been broken into by a side window. Building items, laser measuring equipment, laptops and tools were piled outside the cabin next to a wheelbarrow clearly ready for collection. A suitcase inside one of the cabins had been emptied and property including a one item of machinery valued at £2,000, survey equipment and further tools had been placed inside.
6.
The value of the goods stacked ready for collection was agreed at the sentencing hearing to be in the value of about £12,000. The van when searched was found to contain a crowbar and bolt cutters. The site manager estimated that had the items been taken, in addition to the loss of property, the delay in construction would have been at something in the order of a week at a cost to the company of £7,000 per day. In fact nothing beyond a cigarette lighter was lost.
7.
The appellant is 32 years old. He had 15 previous convictions for 28 offences including four offences of battery, three breaches of conditional discharges, two affrays and two offences of possession of cannabis with intent to supply, assault occasioning actual bodily harm, conspiracy to supply cocaine and cannabis. Accordingly he was no stranger to custody.
8.
The pre-sentence report told the court that the offence had been committed when the appellant was under pressure to pay off a debt to drug dealers in the order of £75,000. He had a history of substance abuse for 15 years. The reporting officer said that the tendency to misuse drugs led to the conclusion there was a high risk of re-offending and a medium risk of harm to the public. The probation service accordingly found itself unable to recommend a community penalty.
9.
In passing sentence the Recorder noted the appellant's record and the breach of the suspended sentence imposed only very shortly before the current offence. As he said, the co-accused also had numerous convictions. The three of them had hired a van for the purpose of committing crime and, as the Recorder put it, they clearly had the intention to steal high value equipment. The Recorder said he afforded full credit for the pleas of guilty. There was no dispute before the court as to the "higher culpability" of the offences for the purposes of the Sentencing Guidelines and the judge said it was beyond argument the intention was to steal high value property which, if removed, would have caused significant financial loss by the equipment itself but also in terms of the disruption to the construction business.
10.
The Recorder said that the case fell naturally into category 1 of the guidelines, higher culpability and greater harm even though no property of value had actually been stolen. The judge focused on the words at page 12 of the Sentencing Council Guideline which say this:
"The court should determine culpability and harm caused
or intended
, by reference
only
to the factors below ..." (emphasis added)
11.
The offence was also aggravated, said the judge, by the offender's past records and in the case of the appellant by the fact that it was committed while he was subject to a suspended sentence. The judge referred to the pre-sentence report and the various documents and references that had been supplied to him.
12.
On this appeal, in short and cogent submissions, Miss Jackson argues that the sentence was excessive in terms of the guidelines simply because that excessive emphasis was placed upon the fact that serious harm was intended although the quantity of goods taken was, in the end, minimal. In her written grounds it was submitted that inadequate differentiation had been made between the appellant and the co-accused who had five previous convictions for burglary. She did not advance that point further this morning.
13.
On the first point, counsel put the matter this way in paragraph 15 of her advice on appeal:
"The wording of the guideline does suggest that intention can be considered, however, given that one of the factors leading to 'lesser harm' is 'nothing stolen or only property of very low value' it is submitted that actual loss ought to be the main focus."
Counsel also quotes an example given by the judge during the course of argument.
14.
In our judgment, with respect to Miss Jackson, there is nothing in the point that she has advanced. With regard to the guideline the introduction makes it entirely clear that "the harm caused or intended is what matters". There may be cases where some distinction has to be drawn between the intention of the burglars and their success in the enterprise. However, in our judgment, this is not that sort of case. The offenders had embarked on a well planned if completely incompetently executed venture, with hired vans and equipment to achieve a serious haul. They were about to achieve that object when they were disturbed. We can see no reason why the case did not fall squarely within category 1 and the judge adopted the guideline starting point for sentence as his own for the purposes of this case. As we say, the distinction in the nature of the records of the accused makes no difference. All were experienced criminals with highly unattractive records and the nature of them made little difference. The judge was right to note that factor in each case. No complaint is made as to the activation of the suspended sentence. That concession was rightly made. The judge gave full and accurate credit for the plea of guilty.
15.
In the circumstances the sentence was not excessive in any respect and, in spite of Miss Jackson's helpful submissions, the appeal has to be dismissed. | {"ConvCourtName": ["Crown Court at Warwick"], "ConvictPleaDate": ["22nd October 2015"], "ConvictOffence": ["burglary"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Warwick"], "Sentence": ["16 months' imprisonment", "suspended sentence was activated in full, giving rise to a total sentence of 20 months' imprisonment."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["32"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["history of substance abuse"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["three men wearing hooded tops looking through the window"], "VictimType": ["the company"], "VicNum": ["the company"], "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": ["CCTV"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["high risk of re-offending and a medium risk of harm to the public."], "AggFactSent": ["committed while he was subject to a suspended sentence.", "breach of the suspended sentence", "offender's past records", "value of about £12,000"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["appellant"], "CoDefAccNum": ["two co-accused"], "AppealAgainst": ["against sentence"], "AppealGround": ["the sentence was excessive in terms of the guidelines simply because that excessive emphasis was placed upon the fact that serious harm was intended although the quantity of goods taken was, in the end, minimal."], "SentGuideWhich": ["page 12 of the Sentencing Council Guideline"], "AppealOutcome": ["appeal has to be dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The judge gave full and accurate credit for the plea of guilty.\n 15.\n In the circumstances the sentence was not excessive in any respect"]} | {"ConvCourtName": ["Crown Court At Warwick"], "ConvictPleaDate": ["2015-10-22"], "ConvictOffence": ["burglary"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Warwick"], "Sentence": ["suspended sentence was activated in full, giving rise to a total sentence of 20 months' imprisonment.", "16 months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["32"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Had mental health problems"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Stranger"], "VictimType": ["Company"], "VicNum": ["1 of 1"], "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": ["CCTV"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["High risk of harm"], "AggFactSent": ["offender's past records", "committed while he was subject to a suspended sentence.", "breach of the suspended sentence", "Financial gain /value"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["2"], "AppealAgainst": ["against sentence"], "AppealGround": ["the sentence was excessive in terms of the guidelines simply because that excessive emphasis was placed upon the fact that serious harm was intended although the quantity of goods taken was, in the end, minimal."], "SentGuideWhich": ["page 12 of the Sentencing Council Guideline"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The judge gave full and accurate credit for the plea of guilty.\n 15.\n In the circumstances the sentence was not excessive in any respect"]} | 232 |
Neutral Citation Number:
[2020] EWCA Crim 176
Case No: 201900428 A3
& 201901790 A1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOD GREEN CROWN COURT
& CANTERBURY CROWN COURT
HHJ J GREENBERG & HH CHRISTOPHER CRITCHLOW
T20187289 & T20167265
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 19/02/2020
Before :
THE VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION)
LORD JUSTICE FULFORD
MRS JUSTICE CHEEMA-GRUBB DBE
and
MRS JUSTICE FOSTER DBE
-
- - - - - - - - - - - - - - - - - - - -
Between :
Robert Baker
Michael Richards
1
st
Appellant
2
nd
Appellant
- and –
The Queen
Respondent
-
- - - - - - - - - - - - - - - - - - - -
Mr Hugh Southey QC
(instructed by
Registrar
) for the
1
st
Appellant
&
2
nd
Appellant
Mr Jake Rylatt for the 1st Appellant
Mr Mark Dacey for the 2
nd
Appellant
Mr Duncan Atkinson QC
(instructed by
CPS Appeals & review Unit
) for the
Respondent
Hearing dates: 30
th
January 2020
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
Lord Justice Fulford:
Introduction
1.
On 3 January 2017, Robert Baker pleaded guilty at Canterbury Crown Court to an offence of robbery, contrary to
section 8(1)
,
Theft Act 1968
. On 30 May 2017, he was sentenced to an extended sentence, pursuant to section 226A, Criminal Justice Act
2003 (‘
CJA 2003
’), of 10 years 4 months, comprising a sentence of 5 years and 4 months’ imprisonment with an extended licence period of 5 years.
2.
At the time this sentence was imposed, the appellant had already been recalled to prison, following his release on licence from an indeterminate sentence – a sentence of imprisonment for public protection (an ‘IPP’) – which had been imposed at the Crown Court at Woolwich on 26 September 2011 for an offence of robbery, and from which he had been released on licence on 1 August 2016. The present offence of robbery was committed on 27 November 2016.
3.
The Registrar referred the application by Baker (1 year 10 ½ months out of time) for leave to appeal his sentence to the full court. We have been provided with a detailed explanation for the delay, which addresses the circumstances in which the applicant sought advice on appeal from fresh representatives, along with the subsequent progression of the case. Given the real element of uncertainty that has existed in the jurisprudence on the issue summarised in [7] and considered in [36] – [39], we are satisfied with the explanation for the delay. Accordingly, we grant leave to Baker.
4.
On 29 October 2018, Michael Richards pleaded guilty to an offence of robbery at Wood Green Crown Court. On 6 December 2018, he was sentenced to an extended sentence of 11 years, pursuant to
section 226
A,
CJA 2003
, comprising a sentence of 8 years’ imprisonment with an extended licence period of 3 years.
5.
At the time that this sentence was imposed, the appellant had already been recalled to prison having been released on licence from a life sentence imposed at the Central Criminal Court on 15 November 2002 for an offence of murder, and from which he had been released on life licence on 14 June 2017. The present offence of robbery was committed on 27 September 2018.
6.
The single judge granted leave to Richards to appeal his sentence.
The Main Issue: outline
7.
The central contention on behalf of both appellants is that it was wrong in principle or manifestly excessive to impose an extended sentence, pursuant to
section 226
A
CJA 2003
, when the appellants had already been recalled to prison on licence, because the future assessment of risk that would be undertaken by the Parole Board was sufficient to protect the public.
The Facts
Robert Baker
8.
On the afternoon of 27 November 2016, the appellant entered a convenience store in Victoria Road in Deal and asked the shop assistant, Mohammed Harrou, if he could use the lavatory. He was refused and left the shop. He returned shortly thereafter, selected a can of beer and approached the counter. Instead of paying, he grabbed Mr Harrou by his scarf and other clothing and pushed him back into the staff area of the shop, telling him to shut up. Mr Harrou sustained small cuts to his forearms in the process.
9.
The appellant dragged Mr Harrou upstairs to the kitchen area of the premises and produced a hammer with a large black head. He told Mr Harrou to sit down and demanded “where’s the money”. There was a till drawer from which Mr Harrou took notes and bags of coins, and he put them in the appellant’s pockets. The appellant demanded more money and argued with Mr Harrou as to where it might be located. Mr Harrou, however, was able to break free, and he summoned assistance. The appellant left the shop but was apprehended nearby. He said “I’ll take the money back, just let me go”. The appellant was found to be in possession of £108 in bags of coins.
10.
In interview, the appellant admitted the offence, but denied that he had been carrying a hammer. Ultimately, the appellant pleaded guilty without a basis of plea, thereby accepting that he had carried and threatened Mr Harrou with this weapon.
11.
Mr Harrou in an impact statement said that “I am in complete shock. I feel like I can’t really put it into words but I feel like it’s the worst thing that ever happened to me. I really thought at one point this guy is going to kill me”.
12.
The appellant is now 40 years old. He was 37 years old at the time of sentence. He has been convicted on 12 occasions of a total of 24 offences. We note in particular:
(a)
On 5 June 2000, he was sentenced to 18 months’ imprisonment at the Crown Court at Maidstone for an offence of robbery, in which he punched a male in the street and demanded money from him. He walked off but then returned to demand more money, accompanied by further threats.
(b)
On 6 August 2003, he was sentenced for a number of offences of dishonesty and an offence of manslaughter at the Crown Court at Maidstone. The appellant with another individual confronted a 44-year-old male after he left a party at which the appellant had been present, and inflicted blunt force trauma to his mouth and nose, fracturing his skull and causing damage to his brain. The appellant was sentenced, after a trial, to 3 years’ imprisonment for the manslaughter.
(c)
On 27 February 2009, he was sentenced to 3 years’ imprisonment at the
Crown Court of Maidstone for an offence of robbery, in which he pushed a 79-year-old man to the floor of his home, making off with a wallet and cards.
(d)
On 26 September 2011, he received an IPP, with a minimum term of 30 months’ custody, at the Crown Court at Woolwich for an offence of robbery in which he demanded money of a 75-year-old, pushing his victim to the ground and taking £1,600.
Michael Richards
13.
At 11.30am on 27 September 2018, Ashwin Peshavaria, aged 66 and employed as a cash-in-transit custodian for the Post Office, stopped to make a delivery to the post office on Tottenham High Road. The street was busy. The appellant got out of a black Ford Kuga car, dressed in black and wearing a motorcycle crash helmet, and approached Mr Peshavaria, who was carrying £26,000 in a cash box. The appellant pushed him to the floor and stole the cash box. Mr Peshavaria suffered from a grazed knee and pain to the left side of his face and ribs as a result.
14.
Members of the public intervened and restrained the appellant in his car until the police arrived. He fought with them, biting one of those who had apprehended him on the hand and a second on the arm. The police found a screwdriver, balaclava, and gloves in the Ford Kuga, which had been stolen 3 weeks earlier and which bore false number plates.
15.
After initial hesitation, the appellant admitted the offence in interview, saying he needed money to pay for cancer treatment.
16.
The victim reported he had difficulty sleeping and continued to suffer physical discomfort. He said “I’ve been badly affected as a result of this incident.” He had given serious consideration to not returning to work. He had ceased going out alone, was nervous, jumpy and paranoid at work, but the financial repercussions for his family if he stopped working would be considerable.
17.
The appellant is 52 years old, having been born on 21 July 1967. He was 51 years old at the time of sentence. He has been convicted on 9 occasions on a total of 18 offences. Of particular relevance:
(a)
On 8 October 1985, he received 36 hours in an attendance centre at the
Waltham Forest Magistrates’ Court for the possession of an offensive weapon, which related to his possession of a knife.
(b)
On 24 January 1986, he was sentenced to 4 years detention in a Young
Offenders’ Institution, at the Crown Court at Snaresbrook, with a concurrent sentence of 6 months’ detention for going equipped for burglary, in which a group of young people including the appellant robbed a petrol station, stabbing an employee.
(c)
On 15 November 2002, he received a sentence of life imprisonment at the Central Criminal Court for murder, and concurrent sentences of 12 years’ custody for two offences of wounding with intent to do grievous bodily harm and 4 years’ custody for two offences of assault occasioning actual bodily harm. The appellant went to an address in Hackney and demanded money from the occupants. He shot three of the occupants, one fatally, one to the chest and one to the shoulder.
(d)
On 10 April 2003, he received a sentence of 10 years’ imprisonment at the same court for an offence of robbery. This related to the robbery of a cash-intransit custodian of £25,000 by punching him to the upper body and grabbing
the cash box. He received a consecutive term of 4 months’ imprisonment for taking a motor vehicle without authority, having taken the keys from a female driver by assaulting her. This sentence was ordered to run concurrently with the life sentence imposed on 15 November 2002.
The Main Issue: detail
18.
The central issue that arises on these conjoined appeals is whether it was lawful for the judges to pass extended sentences, given both men were serving indeterminate sentences in relation to unrelated criminal proceedings, having been recalled to prison (Baker under an IPP and Richards under a life sentence). Both men were subject to provisions prohibiting their release until the Parole Board is satisfied they pose no risk to the public. Mr Southey Q.C., on behalf of both appellants, argues that either the statutory test was not met for an extended sentence or it would have served no legitimate purpose. He contends, therefore, that there was either no power to impose an extended sentence or that it involved an impermissible exercise of discretion. In summary, he submits that the purpose of the extension period is to provide protection when the licence period that would result from a determinate sentence is inadequate, and given the appellants had been recalled to prison, it is difficult – indeed, impossible – to conjecture how the extension period would provide additional protection.
19.
Section 226
A
CJA 2003
, in so far as is relevant, sets out:
(1) This section applies where—
(a)
a person aged 18 or over is convicted of a specified offence (whether the offence was committed before or after this section comes into force),
(b)
the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences,
(c)
the court is not required by section 224A or 225(2) to impose a sentence of imprisonment for life, and
(d)
condition A or B is met.
(2)
Condition A is that, at the time the offence was committed, the offender had been convicted of an offence listed in Schedule 15B.
(3)
Condition B is that, if the court were to impose an extended sentence of imprisonment, the term that it would specify as the appropriate custodial term would be at least 4 years.
(4)
The court may impose an extended sentence of imprisonment on the offender.
(5)
An extended sentence of imprisonment is a sentence of imprisonment the term of which is equal to the aggregate of—(a) the appropriate custodial term, and (b) a further period (the “extension period”) for which the offender is to be subject to a licence.
(6)
The appropriate custodial term is the term of imprisonment that would (apart from this section) be imposed in compliance with section 153(2).
(7)
The extension period must be a period of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by the offender of further specified offences, subject to [subsections (7A) to
(9)] .
(7A) The extension period must be at least 1 year.
(8)
The extension period must not exceed— (a) 5 years in the case of a specified violent offence…
(9)
The term of an extended sentence of imprisonment imposed under this section in respect of an offence must not exceed the term that, at the time the offence was committed, was the maximum term permitted for the offence.
20.
Robbery is a serious specified offence (
section 226
A(1)(a)). Both murder and manslaughter are offences that qualify for condition A (
section 226
A(2)). For the purposes of
section 226
A(1)(c), robbery without a firearm (real or imitation) is
not
an offence listed in Schedule 15B (para.7) and therefore does not come within the requirements of section 224A and the application of section 225(2) depends on whether “the seriousness of the offence […] is such to justify the imposition of a sentence of imprisonment for life” (section 225(2)(b)) which was not the position in either of these cases. Accordingly, save for the arguments raised by Mr Southey, the criteria for an extended sentence were met, depending in each case on the determination of the judge. Both sentencing judges concluded that the appellants satisfied the criteria for dangerousness, as set out in
section 229
CJA 2003
. In the case of Baker, His Honour Christopher Critchlow (sitting as a deputy circuit judge) concluded “having read what I have about you, you are somebody who poses a significant risk to members of the public, in particular men who are alone, and this is something of an escalation, the fact that you produced the hammer in the course of this offence.” In the case of Richards, Judge Greenberg Q.C. concluded: “This robbery is a serious specified offence, and having considered the nature of the offence, and your criminal history of violent offending I am in no doubt that you present a significant risk of causing harm to members of the public by the commission of further specified offences. Your history of committing violent crimes, together with the speed with which you returned to committing a violent crime following your release from prison leaves me in no doubt that you fall squarely into the category of offender required to be sentenced under the dangerousness provisions for the protection of the public from serious harm”. Although certain subsidiary issues are argued by both appellants at [41] – [44], neither appellant challenges the finding of dangerousness.
21.
Prisoners serving a life sentence remain on licence for life (section 31(1) Crime
(Sentences) Act 1997 (“1997 Act”)). When a prisoner is serving an IPP, under section 31A(2) 1997 Act the Parole Board has a discretion to order that the licence shall no longer have effect after the prisoner has been at liberty for ten years. The Parole Board must not make such an order unless it is satisfied that it is no longer necessary for the protection of the public that the licence should remain in force (section 31A(4)(a) 1997 Act).
22.
Section 32 1997 Act seemingly gives the Secretary of State a broad discretion to recall prisoners serving a sentence of life imprisonment and an IPP (by section 34 (2)(d) 1997 Act, references to life imprisonment in this context include an IPP). The section does not describe the test to be applied for recall, but this will lawfully occur when i) there are reasonable grounds for concluding that there has been a breach of the licence conditions and ii) in all the circumstances, recall is necessary for the protection of the public, because of the dangers posed by the prisoner when out on licence (see
R v Parole Board ex parte Watson
[1996] 1 WLR 906
and
R (Jorgensen) v Secretary of State for Justice
[2011] EWHC 977 Admin
)
.
The Parole Board will direct release of those recalled while on licence if it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined (section 28(6)(b) 1997 Act, but see also Article 5 of the European Convention on Human Rights and
Stafford v UK
(2002) 35 EHJRR 32 at [83]). As far as prisoners serving an IPP are concerned, the same release provisions apply (section 34(2)(d)1997 Act, as above, and
R(Sturnham) v Parole Board (Nos 1 and 2)
[2013] UKSC 23
;
[2013] 2 AC 254
, at page 334 [41]), save that once there has been a direction that an IPP licence should no longer remain in force, the recall provisions fall away.
23.
Section 254 (1)
CJA 2003
gives a similar broad discretion to the Secretary of State to recall prisoners serving an extended sentence (“[t]he Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison”). The Secretary of State must have concluded that that the safety of the public makes it necessary to recall the prisoner because the risk to the public cannot be contained in any other way (
R (Jorgensen) v Secretary of State for Justice
at [47]).
24.
It follows, therefore, that the recall provisions are essentially the same whether under an extended sentence, an IPP or a life sentence, and there is no greater power of recall in the case of prisoners serving an extended sentence, as compared with those under an IPP or a life sentence. In considering whether there is any purpose in imposing an extended sentence in these circumstances, it is emphasised that a prisoner serving a life sentence or an IPP can only be released if detention is no longer necessary for the protection of the public. As a result, such a prisoner will only be at liberty if it is concluded that the individual can be safely managed within the community. Mr Southey highlights that the sole circumstance when the licence following an indefinite sentence can end is when the Parole Board orders, after 10 years at liberty, that for an IPP prisoner the licence has ceased being necessary. Mr Southey contends that by that time an extended sentence in all, or nearly all, cases would have no utility. Accordingly, it is argued for the appellants that an extended sentence serves no useful purpose.
25.
In contrast, by imposing an extended sentence in these circumstances, the release of the accused is potentially delayed to his or her disadvantage because of the two-thirds release provisions in section 266A(4) (see above). Although release on licence will always depend on the Parole Board making a decision that the offender can be safely managed in the community, an extended sentence in Mr Southey’s submission may have an unjustified consequence of delaying the offender’s release.
26.
In order to succeed in these submissions, Mr Southey must,
inter alia
, seek to distinguish the present case from
R v Smith
[2011] UKSC 37
;
[2012] 1 Cr App R (S) 83
. In that case a defendant was released on licence from a life sentence but was recalled when suspected of committing eight robberies and eight firearms offences. Following his guilty plea to those offences, he was sentenced to an IPP, the judge having reached the opinion that “there was a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences” (
section 225(1)
(b)
CJA 2003
). Strongly echoing the submissions in the present appeal, it was argued in that case that the sentencing judge could not properly have formed the opinion that there was a significant risk to the public because the appellant had been recalled to prison under the earlier life sentence and would not be released until the Parole Board was satisfied that it was no longer necessary for the protection of the public that he should be confined. Alternatively, it was submitted that the sentencing judge had erred in principle in imposing a sentence of imprisonment for public protection even though the statutory criteria for the imposition of such a sentence were satisfied. It was argued that when the defendant was already serving a life sentence, nothing was achieved by an additional sentence of imprisonment for public protection.
27.
The Supreme Court rejected this submission. It held that the question in
section 225(1)
(b) “must be answered on the premise that the defendant is at large. It is at the moment that he imposes the sentence that the judge must decide whether, on that premise, the defendant poses a significant risk of causing serious harm to members of the public” [15]. Accordingly, the recall on licence did not and could not operate to invalidate the imposition of an IPP. As to the exercise of discretion, and whether an IPP would provide any benefit, Lord Phillips PSC observed “[…] (t)he Parole Board had released the appellant on licence having been persuaded that he did not pose a risk of serious harm to the public. The judge cannot be criticised for imposing a sentence that demonstrated that the contrary was the case” [19].
28.
The implications of this aspect of the decision in
R v Smith
were explained by Lord Judge in
R v J(M)
[2012] EWCA Crim 132
;
[2012] 2 Cr App R (S) 73
, as follows:
“26. […] As a matter of principle and practice
Smith
underlines that the decision whether IPP should be ordered is made, and can only be made, at the date of the sentencing hearing. That is the date when the sentencing court is required to form its opinion whether, in the language of
s.225(1)
(b) , there is a significant risk to members of the public (who, we observe in passing, include police custody officers, prison officers, and fellow prisoners, […]) of serious harm occasioned by the offender committing any further specified offences.
27. On the issue of public safety, the decision made at the sentencing hearing is required to address the future. This involves an assessment of the risk to the public posed by the commission of further offences by the offender, that is, offences which the offender would or might commit subsequent to the current sentencing hearing. Lord Phillips’ observations underline that the judge must decide whether the defendant “poses” the risk envisaged by the statute, not on the basis that he is already in custody at the date of sentence (which was the foundation for the argument on behalf of Nicholas Smith rejected by this Court) but on the basis that he is not. Subject to that amplification, the observations are entirely consistent with the decision of the House of Lords in
R. (on the application of James) v Secretary of State for Justice
; R. (on the application of Lee) v Secretary of State for Justice ;
R. (on the application of Wells) v Parole Board
[2009] UKHL 22
;
[2010] 1 A.C. 553
which was not cited in
Smith
) which endorsed the principles established in this Court. These are conveniently summarised in
Johnson
. The question whether a discretionary indeterminate sentence is appropriate in an individual case is “predictive”.”
29.
Smith
and
J(M)
are binding on this court and the impact of those two authorities is that i) it is neither necessarily unlawful nor wrong in principle for an indeterminate sentence to be imposed on an offender who is already serving an earlier indeterminate sentence, and ii) the judge must decide whether the defendant poses the risk envisaged by the statute, not on the basis that he or she is already in custody at the date of the sentence but on the basis that the defendant is not.
30.
Mr Southey’s argument distinguishing the present case from those two binding authorities is based on the following main factors. First, he suggests that the Supreme Court in
Brown v Parole Board for Scotland and others
[2017] UKSC 69
;
[2018] AC 1
when considering markedly similar provisions for extended sentences (
section 210
A
Criminal Procedure (Scotland) Act 1995
) signposted the approach for which he contends, namely that the court should assess whether any period of extension is necessary to protect the public when a separate recall on licence is already providing that protection. The sole passage from the judgment of Lord Reid on which he relies, with which the other members of the court agreed, is as follows:
“53. The court which fixes the custodial term of an extended sentence is, of course, aware of the statutory provisions governing early release. But those provisions do not influence the length of the custodial term. The court does not, for example, impose a custodial term of six years because it judges four years to be the appropriate period in custody. The provisions governing early release are, however, relevant to the imposition of an extended sentence. As explained earlier, in terms of
section 210
A(1)(b) of
the 1995 Act
it is only where “the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of protecting the public from serious harm from the offender” that an extended sentence can be imposed. The court therefore has to consider the period for which the offender would be on licence under early release provisions, and therefore subject to supervision with the possibility of being recalled to custody, if an ordinary sentence of imprisonment were imposed, and assess whether that period would be adequate to protect the public from serious harm. If not, the court can ensure that the offender is on licence for a further period, fixed as the extension period.”
31.
In our view, Mr Southey is attempting to derive far more from this passage than analysis permits. Lord Reid did not undertake a review of the decisions in
Smith
or
J(M)
, and in particular he did not address the present issues, namely whether it was unlawful or wrong in principle for an indeterminate sentence to be imposed on an offender who is already serving an earlier indeterminate sentence or whether it was wrong for a judge to determine the risk posed by the defendant on the basis that he or she is not in custody at the date of sentence, even if the individual had been recalled on licence for other offending. Indeed, neither
Smith
or
J(M)
were referred to in argument or in the judgment. Instead, Lord Reid in [53] summarised the relevant statutory provisions, in the context of a case which was focussed on the requirement that an individual who received an extended sentence (or who had been recalled on licence during an extended sentence) should be given a real opportunity to achieve rehabilitation and whether immediate release should result if there were no available courses. The essential point made by Lord Reid in [53] was that the judge needed to assess whether the licence period under a determinate sentence was adequate to protect the public. Relevant to the issue addressed in [34] below, Lord Reid expressly emphasised that the statutory provisions governing early release
should not
influence the length of the custodial term. Notwithstanding Mr Southey’s able submissions, we do not consider that
Brown
provides any assistance on the questions that arise on this appeal.
32.
Second, Mr Southey contends that an extended sentence is to be distinguished from other sentences because of the potential disadvantage to the defendant of the restriction on possible release until two-thirds of the custodial element of the extended sentence has been served (
section 246
A
CJA 2003
). This is in contrast to the entitlement to be released after serving half of a determinate sentence which does not have an extension period (
section 244(1)
CJA 2003
). Similarly, a prisoner serving a life sentence or an IPP is potentially eligible for release at the end of the minimum term, which for a discretionary life sentence or an IPP is usually set at a half of the determinate term that would otherwise have been imposed (
R v Szczerba
[2002] EWCA Crim 440
;
[2002] 2 Cr App R (S) 86
at [33] and
Smith
at [15]).
33.
In our judgment, this argument fails, not least because of a fundamental element of the decision in
Smith
(as endorsed in
J(M))
, namely that the decision as to risk must be made on the basis that the defendant is “at large” and has not been recalled. Given this is the approach to be followed, any argument that the two-thirds release conditions may delay what would otherwise have constituted his first opportunity for consideration by the Parole Board for release would be an impermissible consideration. It is irrelevant for the exercise that the judge must conduct that the offender has been recalled on licence.
34.
But the argument also contravenes an important principle of sentencing, namely that in fixing the appropriate sentence of imprisonment of a convicted person, the judge does not, save exceptionally, take account of the statutory provisions for early release
(see
R (Stott) v Justice Secretary
[2018] UKSC 59
;
[2019] 1 Cr App R (S) 47
,
per
Lord Hodge at [188] generally and at [191] as regards discretionary life sentences). Parliament in implementing the provisions for extended sentences deliberately created a regime that was more onerous than the version originally created by the
CJA 2003
, when release from the sentence was at the half-way point of the custodial term. In
Stott
, the Supreme Court held, looking at the extended sentencing regime as a whole,
that the early release provisions were justified as a proportionate means of achieving the government’s legitimate aims. Mr Southey’s submissions would have the result that, in circumstances such as the present, a judge would never pass an extended sentence, even if the criteria are met, thereby avoiding the “delayed” early release provisions which Parliament intended should apply if the judge considered it appropriate to protect the public by increasing the usual licence period by passing an extended sentence. In focussing solely on the role of the Parole Board in determining whether continued detention is no longer necessary to protect the public, Mr
Southey’s approach would impermissibly restrict a judge’s discretion. Contrary to Mr
Southey’s submission that “there is no point” in imposing an extended sentence, by implementing the delayed early release provisions Parliament provided a discrete form of public protection by way of the enhanced period of time that must be served before the individual can be released (two-thirds rather than at the half-way stage). It will always be for the judge to decide whether an extended sentence is appropriate, given this option is discretionary (
Attorney General’s Reference No. 27 of 2013
(Burinskas)
[2014] EWCA Crim 334
). The judge will need to focus on the protection that can be provided to the public by way of an additional period for which the offender is to be on licence, whilst ignoring the consequences of the new early release regime as regards release from the custodial term (
Burinskas
at [40]).
35.
In summary, therefore, it is necessary in these circumstances for a judge to consider whether it is appropriate to impose an extended sentence, without taking into account the fact that the defendant has been recalled on licence and ignoring the delayed early release provisions.
36.
Given their prominence in Mr Southey’s submissions, we need to address two other matters that were raised during the appeal. First, Lord Mance at [36] and [37] in
R Sturnham) v Parole Board (Nos 1 and 2)
, in certain
obiter
remarks, expressed reservations as to part of Lord Philips’s reasoning at [15] in
Smith
, which it is unnecessary to rehearse. His concerns were founded, certainly in the main, on his view that the assessment of risk should be “predictive”. This was resolved conclusively by Lord Judge in
J(M)
at [26] and [27] (as set out above), in a manner which reflected the approach favoured by Lord Mance and which was, on analysis, consistent with the approach of Lord Philips. In the result, there is no decision of the Supreme Court which is contrary to the approach that the assessment is predictive and the offender should be treated for this purpose as being at liberty.
37.
Second, there have been individual sentencing decisions of the Court of Appeal which have addressed the lawfulness of an extended sentence which has been imposed during the currency of an indeterminate sentence. Without being in any sense critical, in those cases the court did not necessarily receive the kind of assistance which has been afforded on this appeal by way of detailed submissions, and the decisions are not entirely consistent. On one side of the line, in
R v Ceolin
[2014] EWCA Crim 526
this court, having considered
Smith
, observed that an extended sentence can be justified notwithstanding the recall of the appellant under the terms of an IPP “by the need to emphasise to the Parole Board both the risk that the appellant still presents and that he offended while subject to licence” [16]. In
R v C
[2019] EWCA Crim 643
an extended sentence was upheld notwithstanding the fact that the appellant was serving a life sentence. The court concluded that the Parole Board had been significantly
misled in a way revealed by the offences then under consideration, and it was observed that:
“21. […] In our judgment, the fact that he has served in excess of twelve years more than the tariff period under the life sentence cannot avail him. It does no more than reflect the fact that throughout this time the Parole Board have not regarded the risk that he continued to pose as capable of being safely managed in the community.”
38.
On the other side of the line, in
R v Turner and Stevenson
[2019] EWCA Crim 1529
, the court concluded at [42]:
“[…] We consider that although the judge was fully entitled to make a finding of dangerousness on the material before her, the decision to impose an extended sentence cannot be justified as necessary for the protection of the public. The judge had a discretion notwithstanding the finding of dangerousness as to what kind of sentence to impose. The critical factor here was that the second appellant was already serving, was still serving and was still subject to an IPP. We consider that the imposition of an extended sentence in these circumstances, could serve no sensible purpose as regards the protection of the public, and was wholly unnecessary.”
39.
Lord Phillips observed in
Smith
that the IPP imposed in that case served to demonstrate to the Parole Board the risk the offender posed, contrary to their decision when releasing him on licence [19]. Insofar as the decisions in this court are in conflict,
Smith
is to be followed.
40.
The conditions of
section 226
A were met as regards the present appellants, and, in the result, applying
Smith
and
J(M)
it was neither manifestly excessive nor wrong in principle nor an inappropriate exercise of discretion to impose an extended sentence despite the recall on licence of both accused in relation to other offending.
Two Subsidiary Issues
41.
There are two subsidiary issues that fall for consideration, in that both appellants challenge the length of their extended sentences. There is no challenge to the finding of dangerousness in either case.
42.
For Baker, it is argued that there was no sufficient basis for the judge’s conclusion that there had been psychological harm, and that in the circumstances the sentence should have been in a different category under the guideline (2B rather than 1B). Mr
Southey argues that Mr Harrou’s assertion in his impact statement that “I am in complete shock. I feel like I can’t really put it into words but I feel like it’s the worst thing that ever happened to me. I really thought at one point this guy is going to kill me” was insufficient. The judge described what happened as “very frightening”. Under the guideline for offences of less sophisticated commercial robbery, the judge was entitled to conclude that this was an offence falling within category B, given the production by the appellant of the hammer to threaten the victim. There is no complaint as to that determination. The sole question raised by Mr Southey is whether there was sufficient evidence of serious psychological harm to the victim, given the evidence was limited to the short statement set out above. Whether more detail, evidence or expert assistance is required beyond the victim impact statement will depend on the particular facts of the case, and often significant detail, evidence or expert assistance will be wholly unnecessary. That said, we are of the view that although this must have been extremely frightening, it is impossible to say that the incident caused serious psychological harm on the basis of what is set out in the impact statement. However, there were notable aggravating features, not least the prolonged nature of the incident, the restraint of Mr Harrou, the terror and distress that the appellant caused him and the appellant’s highly notable criminal record for offences of violence. The difference in the starting point between category 1B and 2B is 1 year (5 years and 4 years, respectively) and in our judgment even if the requirement of serious psychological harm was insufficiently made out, the judge was entitled to go outside the category range for 2B (3 to 6 years) on account of the aggravating features just rehearsed, and to decide that prior to credit for plea, the sentence would have been eight years’ imprisonment. It follows that having given 1/3 credit for the appellant’s guilty plea, we do not accept that the sentence as regards the length of the determinate element of the extended sentence (5 years 4 months) was manifestly excessive.
43.
For Richards, it is submitted that the judge, in identifying the correct sentencing bracket, should not have taken the violence shown to those who intervened into account. Mr Southey argues that for these purposes, it was only the violence shown to Mr Peshavaria that was relevant. Offences involving a professionally planned commercial robbery are divided into three categories of culpability and harm. An offence is to be treated as involving high culpability (category A) when very significant force is used in the commission of an offence or a bladed weapon is produced to threaten violence. An offence falls within the medium category of culpability (category B) where some other form of weapon is produced to threaten and where there is more than a minimal use of force (category C). An offence falls into category 1 of harm where there is serious physical or psychological harm to the victim, or a very high value of goods are obtained, and into category 2 where this is not the case but there is more than minimal harm. For an offence falling within category 1A, the starting point is 16 years’ custody, with a range of 12 to 20 years. For an offence falling within either category 1B or 2A, the starting point is 9 years’ custody, with a range of 7 to 14 years. For an offence falling within category 2B the starting point is 5 years’ custody, with a range of 4 to 8 years.
44.
It is not disputed that the judge was entitled to conclude that this was a professionally planned commercial robbery because,
inter alia
, a car had been stolen for the purpose and false plates used; a Post Office cash in transit custodian carrying a large sum of money was targeted; reconnaissance had been undertaken; a motorcycle crash helmet was used to conceal the appellant’s identity; and there were other items in the vehicle for use in a robbery. Similarly, there is no dispute that the judge was entitled to conclude that this offence fell within category 1 as regards harm, given that a very high value of goods was targeted and the victim had suffered more than minimal psychological harm. The sole dispute was whether the judge was entitled to conclude that the culpability level fell between categories A and B, given the degree of violence used not only against Mr Peshavaria but also against the members of the public who sought to intervene. We note that although the appellant had brought a weapon to the scene it was not used. Mr Southey is correct to identify, as did the judge, that the violence utilised to carry out the robbery was not “very significant” for the purposes of establishing high culpability (the victim was pushed to the floor). However, there were a number of notable aggravating factors. Richards had a number of relevant previous convictions, including a previous robbery from a cash in transit custodian; the offence was committed in breach of licence; the offender attempted to conceal his identity by wearing a crash helmet; and (applying the Overarching Principles: Seriousness Guideline) the offence was committed against someone providing a public service and others were put at risk of harm by the offending, as demonstrated by the deliberate and gratuitous violence by Richards immediately afterwards once he was apprehended by members of the public. These factors undoubtedly positioned the offence between categories A and B, as identified by the judge. The judge’s starting point of 8 years’ imprisonment (one year less than the starting point for a category 1B offence), increased to 12 years’ imprisonment to reflect the aggravating factors and reduced to 8 years when full credit was given for the appellant’s plea was undoubtedly appropriate; indeed, the sentence could have been significantly higher.
45.
For all of these reasons these appeals against sentence are dismissed. | {"ConvCourtName": ["Wood Green Crown Court.", "Canterbury Crown Court"], "ConvictPleaDate": ["3 January 2017", "29 October 2018"], "ConvictOffence": ["offence of robbery"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Wood Green Crown Court.", "Canterbury Crown Court"], "Sentence": ["extended sentence,", "extended sentence of 11 years, pursuant to section 226A, CJA 2003, comprising a sentence of 8 years’ imprisonment with an extended licence period of 3 years.", "10 years 4 months, comprising a sentence of 5 years and 4 months’ imprisonment with an extended licence period of 5 years."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["37", "51"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["asked the shop assistant,"], "VictimType": ["shop assistant,"], "VicNum": ["shop assistant,"], "VicSex": ["Mr Harrou"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["employed as a cash-in-transit custodian", "shop assistant,"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["grazed knee and pain to the left side of his face and ribs"], "DefEvidTypeTrial": ["he needed money to pay", "denied that he had been carrying a hammer."], "PreSentReport": ["data not available"], "AggFactSent": ["been convicted on 12 occasions of a total of 24 offences.", "more than minimal psychological harm", "the restraint", "high value of goods", "professionally planned commercial robbery", "already been recalled to prison, following his release on licence", "hammer to threaten the victim.", "the terror and distress that the appellant caused", "already been recalled to prison having been released on licence from a life sentence", "appellant’s highly notable criminal record", "prolonged nature of the incident,", "weapon.", "convicted on 9 occasions on a total of 18 offences."], "MitFactSent": ["credit for plea,"], "VicImpactStatement": ["impact statement"], "Appellant": ["Robert Baker Michael Richards 1stAppellant2nd Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal his sentence.", "appeal his sentence"], "AppealGround": ["whether it was lawful for the judges to pass extended sentences", "was wrong in principle or manifestly excessive to impose an extended sentence"], "SentGuideWhich": ["Overarching Principles: Seriousness Guideline", "section 8(1), Theft Act 1968.", "section 226A, Criminal Justice Act 2003 (‘CJA 2003’),"], "AppealOutcome": ["appeals against sentence are dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we do not accept that the sentence as regards the length of the determinate element of the extended sentence (5 years 4 months) was manifestly excessive."]} | {"ConvCourtName": ["Canterbury Crown Court"], "ConvictPleaDate": ["2017-01-03", "2018-10-29"], "ConvictOffence": ["offence of robbery"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Don't know", "Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Canterbury Crown Court"], "Sentence": ["Appellant2", "Appellant1"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["51", "37"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Stranger"], "VictimType": ["Individual person"], "VicNum": ["1 of 2"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Employed", "Other"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["No"], "ProsEvidTypeTrial": ["Medical evidence"], "DefEvidTypeTrial": ["Offender believes actions justified", "Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["Weapon /armed", "more than minimal psychological harm", "high value of goods", "professionally planned commercial robbery", "appellant’s highly notable criminal record", "the terror and distress that the appellant caused", "the restraint", "prolonged nature of the incident,", "Previous convictions", "weapon.", "Recently released, previous convictions"], "MitFactSent": ["credit for plea,"], "VicImpactStatement": ["Yes"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal his sentence", "appeal his sentence."], "AppealGround": ["whether it was lawful for the judges to pass extended sentences", "was wrong in principle or manifestly excessive to impose an extended sentence"], "SentGuideWhich": ["Overarching Principles: Seriousness Guideline", "section 226A, Criminal Justice Act 2003 (‘CJA 2003’),", "section 8(1), Theft Act 1968."], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we do not accept that the sentence as regards the length of the determinate element of the extended sentence (5 years 4 months) was manifestly excessive."]} | 115 |
Case No:
201403230 C2
Neutral Citation Number:
[2015] EWCA Crim 1911
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WARWICK
Mr Recorder Raggatt QC
T20130670
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
08/12/2015
Before :
LORD JUSTICE McCOMBE
MR JUSTICE CRANSTON
and
MR JUSTICE KERR
- - - - - - - - - - - - - - - - - - - - -
Between :
ELIJAH CLIVE STOKES
Appellant
- and -
REGINA
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Richard Murray
(instructed by Askews Legal
) for the
Appellant
Malcolm Morse
(instructed by the CPS Appeals Unit) for the
Respondent
Hearing dates : 20 November 2015
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice McCombe:
1.
On 20 May 2014, in the Crown Court at Warwick before HHJ Parker, the appellant pleaded guilty to count 2 on the indictment in this case, an offence of Producing a Controlled Drug of Class B (cannabis). This offence related to premises at 1 Amy Close in Coventry.
2.
On 10 June 2014, in the same court, after a trial before Mr Recorder Raggatt QC and a jury, the appellant was convicted (by majority verdict of 11 to 1) on count 1 of the indictment, a further offence of Producing a Controlled Drug of Class B (again cannabis). This offence related to premises known as Whitehouse Farm at Ryton-on-Dunsmore in Warwickshire. He was acquitted on count 4, an offence of possession of a controlled drug of class A (cocaine) with intent to supply.
3.
On 11 June 2014, the appellant was sentenced, on count 1, to 7 years imprisonment, with no separate penalty being imposed in respect of count 2.
4.
There were two co-accused. Oshae Hunte (the appellant’s 17 year old nephew) was acquitted of the count 1 offence. Natalie Kennell pleaded guilty (on count 3) to Permitting Premises to be used for Producing a Controlled Drug of Class B (i.e. the premises at Amy Close, owned by her) and was convicted on count 4, possession of a class A drug with intent to supply. This charge related to three bags of cocaine found in a freezer at the Amy Close premises. She was sentenced to 3 years imprisonment, reduced by this court on appeal on 13 May 2015 to 2 years 3 months.
5.
The appellant now appeals against conviction by leave of the Full Court (Lloyd Jones LJ, Spencer J and the Recorder of Cardiff) granted on 13 May 2015. That court adjourned his application for leave to appeal against sentence to the court hearing the conviction appeal. The conviction appeal and the adjourned sentence application came before us accordingly on 20 November 2015.
6.
The broad facts and the cases advanced by Crown and defence were as follows. On 3
rd
December 2013 police stopped a black Astra motor vehicle which the appellant was driving. Hunte was in the passenger seat. The vehicle contained items including plant food, silver ventilation ducting, a box of latex gloves and around £5,720 in cash. They were both arrested on suspicion of producing a controlled drug. The police conducted searches at a number of addresses. Keys taken from the appellant’s trouser pocket were used to open the courtyard metal gate at Whitehouse Farm, Warwickshire. He also had a key in his possession that opened Unit 18 at the farm. Police there found an underground cannabis factory in the basement of Unit 18 which was accessed by a trapdoor concealed by tyres. The factory had 257 cannabis plants in three rooms with a value of up to £215,000.
7.
Amongst the other addresses searched by the police was 1 Amy Close, Coventry. The property belonged to Kennell. Keys seized from Stokes were used to open the front door. In the rear upstairs bedroom was a large cannabis plant and 60 small cannabis plants. They were all covered by a propagator and industrial lamps and ventilation had been set up. A freezer bag contained three bags of cocaine each of different purity. That freezer bag was found in the fridge of the premises.
8.
The prosecution case was that the appellant was involved in the production of cannabis at Whitehouse Farm, that he knew what was happening there and was engaged in the growing of plants and he had recruited Hunte to assist him. The cannabis that was found at 1 Amy Close was used to cultivate the seedlings before they were transferred to the cannabis factory at Unit 18. It was the prosecution case that the cocaine found at Amy Close belonged to the appellant and he had stored it in the freezer with the knowledge and permission of Kennell. The cocaine was not for personal use and the appellant and Kennell intended to pass the drugs onto others.
9.
Following evidence given by the appellant at trial (to which we return below) the Crown concluded that he had given a false impression of naivety about drugs and applied to adduce evidence of his conviction in the Coventry Juvenile Court in 2002, when he was 17 years old, for possession of Class A drugs – namely two small individual wraps of heroin and crack cocaine respectively for which he had been fined. The judge acceded to the Crown’s application and convictions were admitted into evidence.
10.
The defence case for the appellant, who gave evidence at the trial, was that although he had keys to Whitehouse Farm, he did not know the cannabis factory was there. He had been connected to the premises for about 8 weeks prior to his arrest on 3
rd
December because he had assisted his friend, known as “Smiler”, with alcohol transactions and had met his friend, Simon Collings. He helped Smiler unload some alcohol on the 1
st
December and kept the keys because he was going to go back the following day.
11.
On 3
rd
December the appellant said he had been given £3,700 by Mr Collings as a refund for a van he had sold with a faulty gear box. He said he had been given £1,500 as a deposit for a BMW vehicle he was interested in and had a further £500 for the purchase of a bed.
12.
The appellant accepted that the cannabis plants found at 1 Amy Close belonged to him. He said it was his own private venture and he was growing seedlings to sell them on. He was not connected to Whitehouse Farm in any way.
13.
There are four grounds of appeal against conviction, as advanced in the written grounds, upon which the Full Court granted leave to appeal. First, it is argued that the judge was wrong to admit the previous convictions into evidence. Secondly, and related to the first ground, it is said that the judge erred in his direction to the jury on that bad character evidence. Thirdly, certain errors in the factual summing-up by the judge are pointed out which, it is said, gave the jury an inaccurate and unbalanced view of the case. Fourthly, it is submitted that the judge was wrong to have given the jury the direction permitting them to return a majority verdict at the time when he did, having regard to the time for which the jury had been in retirement. This final ground was not pursued in oral submissions and we say no more about it. We address the three remaining grounds in turn.
Bad Character
14.
Like the Full Court that granted leave to appeal we have a full transcript of the appellant’s evidence, which includes the passage that gave rise to the Crown application to adduce the evidence of the 2002 convictions. We also have the benefit (which the previous constitution of this court did not have) of a full transcript of the arguments of the advocates at the trial upon the application to admit the character evidence.
15.
The application had arisen in these circumstances. The appellant’s previous convictions had not been admitted in evidence initially. However, there came a point during his evidence in chief at which the appellant gave evidence as to how it came about that the nursery was established in the bedroom of his house in Amy Close. He said that a few friends including Kennell had been having a drink at Amy Close when it came up in conversation.
16.
In fact during the course of this evidence he was interrupted at a number of points by the Recorder but the substance of what he said was that:
“... we were having a drink a few of us around.
RECORDER RAGGATT: Sorry. Who is we?
DEFENDANT: Um, me, Natalie and a few friends.
Q. Having a drink where?
A. At 1 Amy Close... and then we were just talking, usual stuff, and it came up in conversation.
Q. Cloning cannabis came up in conversation?
A. Yeah, I brought it up.
Q. Right. And what did you have to say about it? A. Um, long story short, I asked Natalie if I could use her spare bedroom?
Q. To do what?
A. To make seedlings and sell them on.
At that point the Recorder complained that the witness had dropped his voice and told him he must keep it up. The Recorder then said he would just check his note and read out from his note:
“I asked Natalie if I could use spare bedroom to make the seedlings what? To make seedlings.
DEFENDANT: To clone seedlings.’
Mr Murray for the defence pointed out that his actual response “and sell them on” and the defendant repeated the words “and sell them on”.
17.
The judge heard detailed argument from both advocates on the point. The gist of the Crown’s submission was that the evidence given by the appellant, and the manner in which it was given, tended to give the impression that the appellant was naïve with regard to illegal drugs and was discussing the proposed cultivation of cannabis as a novelty in his life. This was false, it was argued, because the appellant had the 2002 convictions for possession, on that one occasion, of two small wraps of class A drugs. Thus, it was argued, the evidence of those two convictions was admissible to correct “a false impression” given by the appellant, pursuant to s.101(1)(f) of the
Criminal Justice Act 2003
. As the judge was at pains to point out in argument, if that gateway was opened, then the residual discretion conferred by s.101(3), to exclude the evidence on the grounds of adverse effect on the fairness of the proceedings, did not apply to evidence within section 101(1)(f). Any residual discretion could only be under the
Police and Criminal Evidence Act 1984 s.78
.
18.
For the defence, it was argued that no false impression was given. The evidence showed that the appellant, on the relevant occasion was openly suggesting a cannabis production operation with a view to re-sale of the seedlings. It was the opposite of naivety. Alternatively, if the appellant had given a false impression initially, then it was immediately corrected in the passages quoted already where the appellant said expressly that the suggestion for the production of the cannabis came from him: see s.105(3) of
the 2003 Act
. In the further alternative, Mr Murray for the appellant argued that evidence should be excluded under
section 78
of
the 1984 Act
.
19.
In his ruling, acceding to the Crown application to admit the evidence, the judge said this:
“The clear flavour and context of what the defendant was saying at that time is, to my mind, in the light of having heard his evidence myself and watched his demeanour and seen the full context of it, that he was in effect saying this was in reality a novelty and represented some sort if experiment involving him and drugs which he took up and ran with by way of being something of a novel sideline to his life. That is clearly a false impression in the light of the fact that he has this conviction which shows that as long ago as 2002 he had connections with drugs and indeed with Class A drugs and therefore was in no sense a novice in the world of drugs and their context.
…
If I were to allow that position to stand as it does the defendant would in fact be gaining what amounts to an unrealistic advantage from a false impression that he alone has clearly created.”
20.
For the appellant, it is submitted, as it was before the judge, that the relevant passage of the appellant’s evidence simply could not be construed as creating a false impression of naivety about drugs in general. It was simply setting out the circumstances in which the suggestion for cultivation of plants at Amy Close arose. The appellant could not be said to be disguising his past involvement with drugs that his convictions disclose.
21.
In our judgment, while we obviously respect the advantageous position in which the judge was, in hearing the evidence given and seeing how it was given by the appellant, we do not agree that the appellant was truly giving a false impression of anything at all. Like the Full Court that granted leave to appeal, we have difficulty in seeing how such an impression was created at all by what was said. The appellant was merely saying how it was that the Amy Close enterprise came about and that it arose on his suggestion. Any naivety said to have been displayed was argued by the Crown to have been rendered false by these two convictions. They were, however, convictions over 12 years previously, when the appellant was 17; they involved simple possession of two small wraps of class A drugs, obviously for personal use only, for which the appellant received a fine. How such convictions could be said to displace an impression of naivety (if such it was) in suggesting to the co-accused a more sophisticated project of cannabis cultivation is, in our judgment, hard to appreciate. In the relevant passage of the evidence it does not seem to us that the appellant was coming even close to suggesting that he had never had any involvement with illegal drugs in the past.
22.
We conclude that the evidence of the convictions should not have been admitted.
The Summing-up
23.
Mr Murray takes two points arising out of the judge’s summing-up.
24.
First, as we have indicated, he argues that, having (as we have found) wrongly admitted the evidence of the convictions, the judge was compelled to direct the jury as to how that evidence could be deployed in the case. The judge said this in his directions to the jury:
“Mr Stokes you know has two convictions, which are set out in your last agreed facts documents at paragraph two, going back to 2002. They relate to the possession of heroin and crack cocaine. Firstly, you must not, merely because he has those convictions, necessarily come to the conclusion that he is guilty of any offence with which he is charged on this indictment. That would be entirely wrong. Why do you know about them? You know about them because, in the course of his evidence, he appeared at one stage to be suggesting that when he set up the cannabis growing facility at 1 Amy Close that that was something of a novelty for him, that he did not really know much about drugs and so on. Well, that clearly was not the case. And so you were entitled to know that he has this previous drugs conviction simply to show that he was not a total novice as far as drugs were concerned. But that is the limit of it. It may affect his credibility in that sense but that is a matter for you. What you must not do, as I say, is simply assume his guilt because he has those two relatively old convictions.”
25.
Mr Murray submits that quite apart from the admission of the evidence, this direction served potentially to undermine the credibility of the appellant in the jury’s eyes. Further, it is argued, that the presence of these old convictions was the distinguishing feature between the appellant and Hunte, whom the jury acquitted, thus suggesting that it may have been the convictions that “tipped the balance” against the appellant.
26.
Mr Morse argues that the judge emphasised that the evidence was of limited relevance and warned the jury (twice) in the very short passage in his summing up that the evidence of the convictions did not necessarily mean that the appellant was guilty on either of the counts which they had to consider. Further, it was to be noted that the jury acquitted the appellant on the count relating to the cocaine found at Amy Close, which they might likely not have done if reliance had been placed by them on the convictions.
27.
Mr Morse further argued that the convictions were not the only distinguishing feature separating the appellant and Hunte. Hunte was only 17 years of age; he was of entirely good character and was the appellant’s nephew; he had not been observed at this site before. He had given evidence before the jury giving an innocent explanation of what he had been doing on the site on 3 December, which the jury must have accepted as being possibly true. In such circumstances, the jury might well have been unsure of Hunte’s complicity in the production of cannabis on such a large scale.
28.
Secondly, Mr Murray points out two errors in the judge’s summing-up of the facts which, he submits, were calculated to mislead the jury.
29.
As for the first of these, the police officers conducting the observations on 3 December 2013 had seen the appellant and Hunte put bags into the car. The appellant and Hunte said that the bags contained a change of clothing. The judge said to the jury in summing-up (at p.23B of the transcript) that the contents of the car did “not appear to have contained changes of clothing”. However, the agreed evidence of the search only referred to some items found in the car, it did not go so far as to say that the search record listed all the items in the car; nor did it say that clothing had
not
been found.
30.
The second error arose in this way. It concerns the evidence about tyres which concealed the trapdoor leading to the underground cannabis factory. Here the judge told the jury that a police officer called DC Pointon had told them that it had taken between 5 and 10 minutes to remove
all
of the tyres from the unit. Referring to that evidence, the judge said (at p.24D),
“In cross-examination he said it took five or ten minutes to remove all of the tyres from the unit, not just sufficient to open the trapdoor but all of them”.
31.
Mr Murray’s point to the jury was that PC Pointon was saying that it had taken some six officers to move the tyres that had to be shifted in order to gain access to the hatch leading to the underground facility. Thus, when the appellant had been observed at the premises on the three previous occasions, when he had been followed there by the police, his presence was for slightly in excess of twenty minutes on each occasion, not leaving him sufficient time to remove the tyres, do something productive below the hatch with the cannabis crop and then replace the tyres before departing. Mr Murray argues that the manner of the judge’s summing-up undermined this aspect of the defence case.
32.
We have the transcript of PC Pointon’s evidence in which he explained that tyres were removed from the unit by officers in a chain passing them one to the other. At the end of his cross-examination by Mr Murray, there was the following exchange:
“Q. And just help me if you can, Officer. So you and your colleague undertaking that exercise, how long did it take you to move all of these tyres?
A.
Um, I’d say five or 10 minutes.
Q.
That, it looks a significant quantity, um, are you sure it was as short as 10 minutes?
A.
Um, as I say, I didn’t time myself, but I’d say roughly about five to 10 minutes, yes.”
33.
The precise effect of this part of the officer’s evidence, so far as the criticised passage of the summing-up is concerned, is perhaps not as clear as it might be. However, Mr Morse for the Crown (in his written response to the grounds of appeal) concedes that the judge was in error in what he said in this part of the summing-up and acknowledges that the periods of time spent by the appellant at the premises on the other observed occasions were not sufficient in length for him to park, go through the site gate, open the unit, move the tyres, go into the underground area, replace the tyres and leave. Mr Morse does assert, however, that it was not the Crown’s case that the appellant was the only person involved, nor that he could have done all those things on each visit; on the first visits the police observers were unable to see beyond the farm gate in order to observe who else might have been present. Moreover, it might be added the final visit on 3 December 2013, when the appellant and Hunte were apprehended, lasted some four hours.
34.
We invited Mr Morse to address us as to the safety of the convictions, acknowledging the errors in the factual summing-up which he acknowledged and on the hypothesis that we might decide that the convictions should not have been admitted into evidence.
35.
Mr Morse argued that, even on those hypotheses, the conviction on count 1 was safe. There was, he argued, a strong case against the appellant, having regard to a number of factors: his presence at the site on the earlier occasions, his possession of the necessary keys to gain access to the unit, his admitted cultivation of seedlings at Amy Close, his presence at that site for four hours on 3 December and his apprehension there in a car carrying cannabis farming paraphernalia and smelling strongly of cannabis, in which some £5,700 in cash was also uncovered.
Conclusion on the conviction appeal
36.
In our judgment, in spite of the factors identified on the appellant’s behalf, it seems to us that the conviction on count 1 is safe.
37.
The two old convictions, which we consider the judge was wrong to admit into evidence, were only a very minor part of the evidence in the case, which (for the reasons advanced by Mr Morse) was a strong one against this appellant on count 1 in any event. He admittedly grew cannabis in seedling form at Amy Close and was observed on a number of occasions at the farm premises, where this significant production facility was found. He was arrested, in the circumstances which we have described, in possession of the means of access to the very unit on the site where the cannabis plants were growing. While we note Mr Murray’s submission that the case against the appellant on count 4 in contrast (the cocaine in the freezer) was not a strong one, the jury did acquit the appellant on this charge, to which the old convictions might be thought to have had some bearing, if of any significance at all in the jury’s minds.
38.
As for the errors in the factual summing-up, we do not think that these undermine the safety of the conviction as a whole. Mr Murray had, it is accepted by the Crown, made a powerful submission to the jury about the time required to remove tyres from the hatch area as compared with the length of the appellant’s previous visits to the farm. However, when it came to raising points with the judge for possible correction of the summing-up, we are told he did not mention this point. Further, as Mr Morse submits, the relative brevity of the first three visits was only one factor for the jury to consider in the evidence as a whole.
39.
Therefore, we dismiss the conviction appeal. We turn to the sentence application.
Sentence
40.
The appellant is now 29 years old. He had been convicted on seven occasions of 11 offences, including the two drugs offences which we have previously mentioned. His most recent offence was robbery in 2007 for which he was sentenced to 8 years imprisonment.
41.
In passing sentence the learned recorder found that the appellant played a leading role in relation to the cannabis production at the farm. The judge concluded that a great deal of time and investment had gone into the set-up. He said this was a commercial operation producing drugs on a large scale. The judge referred to the number of plants (257) found at the farm, with a street value assessed at between £70,000 and £215,000. There was evidence of a previous crop which might have taken the street values of the drugs produced at the farm site to even higher amounts. The judge concluded that the enterprise was at a high commercial level, if not quite on an industrial scale. It was considered that the appellant had endeavoured to cover up his involvement with other business activity which was an aggravating feature. The judge said that the appellant was in charge of the unit, even if he did not pay the rent, the likelihood was, said the judge, that it was his partner who made that payment. He referred to the production at Amy Close.
42.
The judge concluded that this offending was within category 2 of the Sentencing Guideline for the offence and that, in view of the appellant’s leading role, there was a starting point for sentence of 6 years custody. He found there were aggravating factors, including the sophistication of the operation and the other businesses that covered it up; the appellant had recruited Kennell to set up cannabis “nursery” at her premises. There was also the appellant’s offending record to consider.
43.
The judge proceeded to pass the total term of imprisonment of 7 years.
44.
On the present application, it is submitted that the sentence was manifestly excessive. It is argued that the judge was wrong to ascribe to the appellant a leading role and to put the sentence close to the top of the bracket for a category 2 offence and within the bracket for category 1. The contention is that the judge was wrong to regard these 300 or so plants as being “not quite an industrial use, but…certainly a high level commercial enterprise”. Further, Mr Murray says that the features of the appellant’s involvement (possession of keys, unrestricted access and a number of visits to site) are commonly found present in the cases involving “gardeners” of cannabis, who tend the plants while those higher up the chain keep their distance from the cultivation site. In addition, it is argued that the number of plants involved in this case may not have been much in excess of those that might be found in a cannabis production in the bedrooms of a house.
45.
From all this, Mr Murray argues that the judge should not have categorised this offending as being beyond that of a significant role in an operation capable of producing significant quantities for commercial use (i.e. squarely within category 2, rather than approaching category 1).
46.
For our part, we can follow Mr Murray’s submission to some extent, but not all the way. It may be that the level of production could properly have been regarded as squarely within category 2 (although we do not forget the evidence of an earlier crop, which might well have swayed the judge). There was reason to see the appellant as having a role of importance at the farm site, justifying a finding of a leading role. Further, the appellant did have other convictions over and above the two relatively minor convictions for possession of drugs in 2002. However, we do not consider that the various features of the case required the imposition of a sentence very near the top of a guideline range of 4 ½ to 8 years custody. In our judgment, there was no need to go beyond the starting point of 6 years.
47.
For these reasons, we grant leave to appeal against sentence and allow the appeal to a limited extent. We quash the sentence of 7 years imprisonment on count 1 and substitute a sentence of 6 years imprisonment in its place. The total sentence will, therefore, be one of 6 years imprisonment in place of the 7 year term imposed in the Crown Court. All other orders will remain as before. | {"ConvCourtName": ["Crown Court at Warwick"], "ConvictPleaDate": ["20 May 2014"], "ConvictOffence": ["offence of possession of a controlled drug of class A (cocaine) with intent", "Producing a Controlled Drug of Class B (again", "Producing a Controlled Drug of Class B"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Warwick"], "Sentence": ["no separate penalty", "7 years imprisonment, with no separate penalty"], "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": ["police stopped a black Astra"], "DefEvidTypeTrial": ["evidence given by the appellant", "he did not know"], "PreSentReport": ["data not available"], "AggFactSent": ["played a leading role", "seven occasions of 11 offences", "value of up to £215,000.", "enterprise was at a high commercial level", "sophistication of the operation", "appellant had recruited"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["appellant"], "CoDefAccNum": ["two co-accused"], "AppealAgainst": ["against conviction"], "AppealGround": ["manifestly excessive.", "judge was wrong to admit the previous convictions", "erred in his direction to the jury", "errors in the factual summing-up"], "SentGuideWhich": ["Criminal Justice Act 2003.", "Police and Criminal Evidence Act 1984 s.78.", "Sentencing Guideline"], "AppealOutcome": ["we dismiss the conviction appeal.", "quash the sentence of 7 years imprisonment on count 1 and substitute a sentence of 6 years"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we do not think that these undermine the safety of the conviction"]} | {"ConvCourtName": ["Crown Court At Warwick"], "ConvictPleaDate": ["2014-05-20"], "ConvictOffence": ["Producing a Controlled Drug of Class B (again", "offence of possession of a controlled drug of class A (cocaine) with intent", "Producing a Controlled Drug of Class B"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Warwick"], "Sentence": ["Concurrent", "7 years imprisonment, with no separate penalty"], "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": ["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"], "DefEvidTypeTrial": ["Offender denies offence", "evidence given by the appellant"], "PreSentReport": ["Don't know"], "AggFactSent": ["appellant had recruited", "sophistication of the operation", "enterprise was at a high commercial level", "played a leading role", "Previous convictions", "value of up to £215,000."], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["2"], "AppealAgainst": ["against conviction"], "AppealGround": ["manifestly excessive.", "errors in the factual summing-up", "erred in his direction to the jury", "judge was wrong to admit the previous convictions"], "SentGuideWhich": ["Sentencing Guideline", "Police and Criminal Evidence Act 1984 s.78.", "Criminal Justice Act 2003."], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence", "Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we do not think that these undermine the safety of the conviction"]} | 120 |
Neutral Citation Number:
[2009] EWCA Crim 2220
Case No.
No. 2008/06789/D4,
2008/06791/D4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Thursday 15 October 2009
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Judge
)
MR JUSTICE PENRY-DAVEY
and
MR JUSTICE KEITH
- - - - - - - - - - - - - - - -
R E G I N A
- v -
STEVEN JOSEPH TIERNEY
JONATHAN MARK TYM
- - - - - - - - - - - - - - - -
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 O Edwards
appeared on behalf of both Appellants
Mr S Medland
appeared on behalf of the Crown
- - - - - - - - - - - - - - - -
J U D G M E N T
Thursday 15 October 2009
THE LORD CHIEF JUSTICE:
1. These are appeals against conviction by Stephen Tierney and Jonathan Tym. The appeals follow a reference of their convictions by the Criminal Cases Review Commission ("the Commission") under
section 9 of the Criminal Appeal Act 1995
.
2. On 19 April 2005, in the Crown Court at Chester, before His Honour Judge Philip Hughes and a jury, the appellants were convicted of assault occasioning actual bodily harm. No count of common assault was included in the indictment. Nor was common assault left to the jury as an alternative verdict when it had recently become available. Following their conviction the appellants were later sentenced to community punishment orders for 180 hours. They were also ordered to pay £1,000 in compensation to the complainant and £1200 towards the costs of the prosecution.
3. Earlier applications for leave to appeal against conviction and sentence were refused by the single judge and they were not renewed.
4. The facts can be taken from the Reference by the Commission. The prosecution case was that the appellants attended a Christmas party with their wives at a hotel in Chester on 20 December 2003. The two men were both police officers serving in the same police force. They lived a few doors apart and their wives also worked together for Cambrian Associates Limited ("Cambrian"), the organisers of the party.
5. During the course of the evening Mr Tym directed continual, abusive and loud remarks towards Mr Mayers' wife, Louisa, who was a Cambrian employee. Remarks were in addition directed towards Mr Mayers. He decided to confront Mr Tym about his behaviour.
6. Both men were intoxicated and a verbal confrontation ensued. Mr Tierney involved himself by approaching Mr Mayers from behind and punching him to his head. Mr Mayers retaliated by striking Mr Tierney. A scuffle ensued, with Mr Tierney and Mr Tym throwing punches at Mr Mayers. The three men ended up struggling with each other on the floor.
7. The incident ended quickly, culminating in Mr Mayers being dragged out of the function room along the floor by means of his collar and tie. Mr Tym had hold of his tie; Mr Tierney had hold of his collar. Mr Mayers' tie was pulled tight. He lost consciousness and suffered marking to his neck.
8. The Reference summarises the evidence given by Mr Mayers. It needs no repetition for the purposes of our judgment. It is right to record the evidence given by the appellants. Mr Tierney gave evidence first. He had seen Mr Mayers and Mr Tym engaged in an argument. He had thought that Mr Mayers was about to punch Mr Tym and intervened by pulling Mr Mayers to calm him down. He had stood behind Mr Mayers and put his hands on top of his shoulders, pulling Mr Mayers backwards. Mr Mayers had put up no resistance. Mr Tierney intended to walk him to the doorway. If he had resisted he could not have done that. He took Mr Mayers to the door and released him. Mr Mayers suddenly turned round and punched him in the face, causing him to fall backwards into the room over loose chairs. He fell flat on his back with Mr Mayers on top of him. Mr Mayers tore at his shirt and continued to punch him. He could not defend himself and could feel blood on his face from his nose. He had not pulled Mr Mayers by the collar, nor had he seen Mr Tym pull Mr Mayers out of the room. He was left on the floor and then sat on a chair. He had not been aware of what was going on in the corridor outside. He sat for a while, not speaking to anyone, upset by the whole incident. When he later went outside for some fresh air, Mr Mayers was there and was shouting. So he went back into the hotel. He sustained bruising, a cut lip, a bruised and swollen nose, blackened eyes and a sore kidney from the assault and having fallen over the chairs. He had not told the police officers who were called to the hotel in response to the incident that he was a police officer, but he thought that they were aware that he was from other guests. He had not made a complaint. His wife had begged him not to do so.
9. Mr Tym in his evidence said that no one had admonished him for his behaviour that night, nor did he know anyone was displeased with it. He denied being drunk or directing abusive or offensive comments at Mr or Mrs Mayers. He had not at any stage said to Mr Mayers, "Where are you girls going?", or called him "Gay boy". He had been in the corridor off the function room when Mr Mayers walked by. He had the impression that Mr Mayers was unhappy. Mr Mayers was glaring at him. Mr Mayers had walked off. Mr Tym had finished his conversation with another guest before going back into the function room. Shortly after he was shocked when Mr Mayers came and stood very close to him and said, "You think you're a fucking hard copper, but you're scum". Mr Mayers' eyes were glazed and his speech slurred. He thought Mr Mayers was drunk. He was confined by the wall behind and could not move to his left or right. Aware of the bottles, knives and cutlery about, to reduce the risk of Mr Mayers using something as a weapon, he pulled Mr Mayers in towards him by the waste. His wife had come over. He told her that he would sort it out. Mr Mayers then went backwards. He had not seen anyone lead him. He was just relieved that he was going away.
10. When asked in interview why he had said that his wife and Mrs Tierney took Mr Mayers away, he said that he had talked about the events with his wife. He was telling the truth, but could not answer why he was now saying that he did not know who led away Mr Mayers. He had sat down and next heard someone shout "Steve" from the end of the table. He stood up and could see that Mr Mayers was on top of Mr Tierney, punching him. He never did anything to Mr Mayers out of malice. It had been necessary to remove him from Mr Tierney as swiftly as possible to protect Mr Tierney from further injury. He acted to pull Mr Mayers off Mr Tierney, but lost his grip because of Mr Mayers' movements. When he tried for a second time, he pulled hard and up came Mr Mayers. Mr Mayers had been on the floor with his eyes open. Mr Tym had seen people lying in such a state outside pubs before. They could be ill or drunk, but simply by looking at someone it was not possible to say whether or not they were unconscious. He did not think that he had caused Mr Mayers any harm. He dragged him firstly by his upper body and then by his collar. Mr Mayers' tie had finally ended up in his left hand. But he had not held the tie by both hands and used it as a means to drag Mr Mayers across the floor, as was alleged.
11. In relation to the evidence given by another prosecution witness he said that Mrs Lloyd-Jones had asked him to come over and asked him to undo Mr Mayers' tie. Although it was not tight like a noose, he had undone the tie. He stayed while she examined Mr Mayers. After a couple of seconds Mr Mayers sat up.
12. Mr Tym had said to Mr Taylor (another witness) that he was sorry the incident had happened, but that he was not sorry for what he had himself done. He did not make any complaint to the attending officers. He was uninjured and his wife had said that it was better not to make a complaint because they all had to work together.
13. The Crown called a substantial number of witnesses who, although none had seen the entire incident, gave evidence that was supportive of the account given by Mr Mayers that he had been the victim of an attack by the two appellants and contradicting their evidence that they had acted either in self-defence or in defence the one of the other, or that they had been peaceably involved, trying to avoid or reduce the risk of trouble.
14. Just before the end of the evidence it was submitted that there was no case for Mr Tierney to answer. Unsurprisingly, because this was plainly a case which required the attention of a jury, that submission was rejected. Although some character evidence remained to be produced on behalf of Mr Tierney, taking advantage of the fact that the jury was out of court, the judge invited submissions from counsel on the question whether he should leave common assault to the jury. The Crown's position was that he should leave common assault; it was a viable alternative. The judge's preliminary observations indicated that he agreed with that submission.
15. However, and rightly, he then sought submissions from counsel for the two appellants. The judge was presented with a powerful argument that, although it was technically possible to leave common assault to the jury, such a course would be inappropriate in this case. It is worth noting the way in which the submission was advanced. The judge said that it seemed to him that it would be appropriate to leave to the jury the possibility of common assault, whereupon Miss Baxter (then appearing for Mr Tierney) submitted that the Crown had nailed their colours to the mast of assault occasioning actual bodily harm and had chosen to prosecute the appellants for that offence. She said:
".... given that that is what [the appellants] have been brought here to face and given that that is the basis upon which all of the witnesses have been cross-examined, then it would only be fair for the [appellants] to have that and that alone left to the jury. If there had been an alternative, it may be that certain other avenues would have been explored with the witnesses in terms of whether it was reasonable to use any form of restraint and the like in particular circumstances and those avenues have not been explored."
Miss Baxter ended this part of her submission by suggesting that if the judge left common assault it would effectively pull the rug from underneath her client's feet. The judge questioned that, but Miss Baxter was adamant in her submissions.
16. Counsel for Mr Tym re-echoed the same submission. He concluded that to leave the alternative of common assault would amount to a change in the way in which the Crown had advanced the case and might have resulted, if the defence had known about it, in a possible difference in the way the case would have been advanced.
17. The judge asked counsel for the Crown whether it was correct that he had indeed, as counsel for both appellants had argued, opened the case robustly on the basis that it was a section 47 assault occasioning actual bodily harm, joint enterprise, to which counsel said, "Yes".
18. The judge took the view that the more he had listened to the submissions by counsel for both appellants, the more he thought that:
".... perhaps in the interests of fairness it would be better for me not to leave it [common assault] to the jury."
Thus focused on the interests of fairness, he upheld the submission made on behalf of the appellants. As the law was understood at that time, that was an entirely appropriate and commendable response.
19. In due course when he came to sum up to the jury, the judge gave them the directions that he had indicated he would. He said that the issue was whether Mr Mayers was rendered unconscious and whether there was any red mark on his face. His direction was clear. He said:
"It is necessary for the prosecution to prove that Mr Mayers suffered the injuries he said he did and for them to prove too that those injuries were caused by being assaulted by the defendants."
A little later he said:
"Did the assault cause the injuries, the red marks on the neck, the unconsciousness? If you are sure it did, the defendants will be guilty of the charge of assault occasioning actual bodily harm. If you are not sure, your verdict will be not guilty ...."
Pausing there, lest there be any misunderstanding, that direction followed impeccable directions about the proper approach to the issue of self-defence and who of those present at this incident was or may have been the aggressors and who was or may have been the peace-makers.
20. At 10.55am that day the jury retired to consider its verdicts. At 3pm a majority direction was given. They retired again at 3.02pm. At 4pm the jury sent a note to the judge which was in the following terms:
"Can we find them guilty of assault but not occasioning actual bodily harm?"
The judge directed the jury as follows:
"The answer is quite simple. In the context of this case that option is not available to you. It is either assault occasioning actual bodily harm or nothing at all. Would you like to retire now and carry on your deliberations please?"
The jury retired shortly afterwards. Thirteen minutes later they returned to court. They convicted Mr Tym by a majority verdict of 10:2. They had no verdict in the case of Mr Tierney. The court adjourned until the following day. On the following morning, after a further retirement of twenty minutes, the jury returned to court and this time they convicted Mr Tierney again by the same majority of 10:2.
21. When an application was made for leave to appeal to this court no point was taken about the fact that the judge had not left the alternative verdict to the jury. However, when their applications were refused on 5 January 2006, the appellants applied to the Commission for their convictions to be reviewed. The Commission distilled no less than seventeen different grounds of complaint. None of them was considered by the Commission to have weight or to amount to anything which might lead to the quashing of these convictions. Nevertheless, the convictions were referred to the court on the basis identified by the Commission, in essence, that the safety of the convictions is undermined because of the judge's decision that the common assault alternative should not be left to the jury and, as the Commission draws attention to the point specifically, by his direction in answer to the jury's direct question whether they could find the appellants guilty of assault, but not of assault occasioning actual bodily harm.
22. The Crown does not seek to support the conviction. With some hesitation we agree with the Crown that, in view of the jury's question, there is no way in which we can know, and it would be wrong to deduce anything from the jury question itself than that it may realistically have reflected some possible doubt in the mind of one or more of the jury whether the evidence that actual bodily harm had been caused was sufficiently convincing.
23. The Crown invites us to substitute a conviction for common assault. With respect to the argument to the contrary, that application is unanswerable. Our attention was drawn to a brief note on the decision in
R v Harris
(TLR 22 March 1993, judgment given on 2 March 1993). However, that was an altogether different case in which none of the questions which arise here was in issue. In a case of alleged rape there was a question about the extent of penile penetration and therefore whether attempted rape was the appropriate charge. In this present case the jury would not have convicted either of these appellants of assault occasioning actual bodily harm unless they were sure at the outset that Mr Mayers had been the victim at least of common assault for which both appellants were responsible, and in which they, not he, were the aggressors.
24. Accordingly, we shall quash these convictions and, in accordance with our powers, we shall substitute convictions for common assault.
25. Before we leave the case, however, we must draw attention to these further considerations. In our judgment there is no doubt that when the judge gave the direction he did, he was exercising what at that time was a well understood judicial discretion, directed at the interests of justice, in particular the interests of justice for which counsel on behalf of the appellants had contended. We respectfully disagree with the view expressed by the Commission that the well-known decision of the House of Lords in
R v Coutts
[2006] UKHL 36
re-affirmed well-known principles. In reality
Coutts
represented and required of criminal courts that a new approach should be taken to the problem of alternative verdicts. The previous way in which this issue was addressed is exemplified by the decision of the Court of Appeal in
Coutts
itself. For all practical purposes the House of Lords in
Coutts
, while not expressly overruling the earlier House of Lords' decision in
R v Maxwell
[1988] 1 WLR 1265
, effectively deprived it of authority. The position was summarised by the court sitting in a five judge constitution in
R v Foster and Others
[2007] EWCA Crim 2869
, where the consequences of the decision in
Coutts
were addressed and applied in a number of specific situations. Paragraph 50 in
Foster
sought to address the issue and analyse the impact of
Coutts
on
Maxwell
. It reads:
"The test propounded in
Maxwell
about the circumstances in which the court should interfere with the verdict was closely examined in each speech in
Coutts
. it is impossible to ignore the criticisms expressly directed at it.
Maxwell
is variously described as 'not an easy authority' by Lord Bingham, who observed the different grounds upon which the defendant had failed in the Court of Appeal (that the appellate court should only interfere if there were identified 'solid grounds for suspecting that the members of the jury had foresworn their oaths') and in the House of Lords (that the lesser offence of theft was trifling in relation to robbery) and considered neither was 'unproblematic'. Lord Hutton, who was a member of the Board in
Hunter
[2003] UKPC 69
, which followed
Maxwell
, pointed out that Lord Ackner was speaking obiter when he said that the appellate court, before interfering with a verdict, must be satisfied that the jury may have convicted out of a reluctance to let the defendant 'clean away' and criticised that approach as 'unsatisfactory' it should no longer be taken. Lord Rodger of Earlsferry described the test as 'problematic', to say the least, and on analysis, 'wrong in principle'; and Lord Mance regarded the test in relation to a jury trial as 'unworkable'. There was no suggestion that the concerns about the correct approach in law to what might be called the reluctant jury attracted the application of the Practice Direction (Judicial Precedent) issued by Lord Gardiner on behalf of himself and the Lords of Appeal in Ordinary on 26 July 1966. In any event, the language in the speeches is unequivocal. Lord Ackner's test is no longer applicable. Effectively, it has been extinguished. ...."
That being the analysis in
Foster
, it seems apparent that as a matter of reality the law has changed. In our judgment this court would normally approach any application for leave to appeal out of time, following a trial which had taken place before
Coutts
was decided in the House of Lords, and based on the ground that the judge had failed to leave an alternative verdict to the jury as if it represented a change of law case in the sense identified by this court in
R v Cottrell and Fletcher
[2008] 1 Cr App R 107
.
26. If and when like cases these arise and are referred to the Commission because the appeal process has been exhausted, we respectfully invite the Commission to continue to have regard to the principles identified in
Cottrell and Fletcher
.
27. Is there anything further?
28.
MR EDWARDS:
My Lord, there is one matter. Under section 3(2) of the Criminal Appeal Act, the court has to pass a sentence in substitution for the sentence passed below, not being a sentence of greater severity.
29.
THE LORD CHIEF JUSTICE:
Have your clients finished their community punishment order?
30.
MR EDWARDS:
Yes.
31.
THE LORD CHIEF JUSTICE:
Yes. Have they paid the compensation order?
32.
MR EDWARDS:
£1,000.
33.
THE LORD CHIEF JUSTICE:
Have they paid the costs?
34.
MR EDWARDS:
They have, £1200.
35.
THE LORD CHIEF JUSTICE:
Well ....
36.
MR EDWARDS:
My Lord, can I make the point? It is a very brief one.
37.
THE LORD CHIEF JUSTICE:
Yes.
38.
MR EDWARDS:
Your Lordship has already pointed out the section in the summing-up in which the learned judge properly identified actual bodily harm as being the friction mark and the unconsciousness, about which there is a live issue. Had the appellants been convicted of common assault at the conclusion of that trial the sentence would, in my submission, have reflected that --
39.
THE LORD CHIEF JUSTICE:
Yes, of course.
40.
MR EDWARDS:
-- certainly as far as compensation is concerned. (
Pause to take instructions
) My Lord, I do apologise. Compensation has not been paid pending this appeal.
41.
THE LORD CHIEF JUSTICE:
Four years?
42.
MR EDWARDS:
Yes.
43.
THE LORD CHIEF JUSTICE:
All right. Thank them for pointing that out. Have the terms of the community punishment order been fulfilled?
44.
MR EDWARDS:
Yes.
45.
THE LORD CHIEF JUSTICE:
What submission do you make?
46.
MR EDWARDS:
It would have been less if they had been convicted of common assault.
47.
THE LORD CHIEF JUSTICE:
Yes, obviously.
48.
MR EDWARDS:
And the compensation would have been considerably less.
49.
THE LORD CHIEF JUSTICE:
Yes. So would the community punishment order.
50.
MR EDWARDS:
Yes.
51.
THE LORD CHIEF JUSTICE:
Yet they have carried it out.
52.
MR EDWARDS:
My Lord, it does have an impact -- and I do apologise --
53.
THE LORD CHIEF JUSTICE:
Well, if I might say so, it illustrates some of the difficulties about cases coming back to this court a long time after everybody thinks they are finished.
54.
MR EDWARDS:
I agree.
55.
THE LORD CHIEF JUSTICE:
What are you inviting us to do? What is your submission now that your clients have completed their community punishment order?
56.
MR EDWARDS:
My Lord, the options are that that order could be reduced, although that would have no impact. Any different sentence, save for an absolute discharge, would in effect end up being a further penalty.
57.
THE LORD CHIEF JUSTICE:
Not if we leave the community punishment order unaffected and quash the rest of it, so far as sentence is concerned. What about the costs?
58.
MR EDWARDS:
My Lord, in those circumstances it would be a matter for the court to consider whether on a conviction for common assault they should pay the costs of the entire trial process or otherwise.
59.
THE LORD CHIEF JUSTICE:
Very well. Thank you. The Crown's position is neutral, I take it?
60.
MR MEDLAND:
Neutral, my Lord, save to say that the sentence imposed, whilst perhaps it might have been less, it certainly (and I hope it is not an inappropriate phrase that I used in my skeleton argument) was comfortably within the possibilities available to the learned judge upon a conviction for common assault. It may well be that the compensation might have been less. The costs, in view of the manner in which the trial was conducted of two (as they were then) police officers, it was unlikely, if I may say so, to have taken much less time than it did. It is from that that the figure was deduced as a contribution to the costs -- not the whole costs.
61.
THE LORD CHIEF JUSTICE:
Thank you.
(
The court retired to confer
)
62.
THE LORD CHIEF JUSTICE:
We must now consider sentence following the quashing of the convictions for assault occasioning actual bodily harm. These offences of common assault were serious offences of their kind. They involved an outbreak of violence of a disgraceful nature in a public place by serving police officers. Our conclusion is that the sentence for the community punishment order should remain as it was. We shall not interfere with it. Nor can we see any basis for altering the decision in relation to the order that costs should be paid in the sum of £1200. The trial went ahead on the basis of a fully fought case. Indeed, the way in which the judge left the case to the jury was precisely the way in which, for forensic reasons, it was thought appropriate for the defence case to be conducted. Accordingly, we shall not interfere with that.
63. However, to recognise the fact that the conviction now does not include the actual bodily harm which was found by the jury to have taken place, we must reduce the compensation order. We have reflected on the incident as a whole, removing from consideration of it the injuries which the Crown said had been sustained by Mr Mayers. In those circumstances the order for compensation will be the sum of £250 to be paid by each appellant.
_______________________________________ | {"ConvCourtName": ["Crown Court at Chester"], "ConvictPleaDate": ["19 April 2005"], "ConvictOffence": ["assault occasioning actual 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 Chester"], "Sentence": ["community punishment"], "SentServe": ["data not available"], "WhatAncillary": ["community punishment", "costs of the prosecution."], "OffSex": ["men"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["police officers"], "OffHomeOffence": ["lived a few doors apart"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["intoxicated"], "OffVicRelation": ["all had to work together."], "VictimType": ["Mr Mayers."], "VicNum": ["data not available"], "VicSex": ["Mr"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["intoxicated"], "ProsEvidTypeTrial": ["prosecution witness"], "DefEvidTypeTrial": ["evidence given by Mr Mayers", "He denied being drunk or directing abusive"], "PreSentReport": ["data not available"], "AggFactSent": ["outbreak of violence", "public place", "serious offences"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["appellants"], "CoDefAccNum": ["STEVEN JOSEPH TIERNEY\n \n JONATHAN MARK TYM"], "AppealAgainst": ["conviction", "against conviction and sentence"], "AppealGround": ["data not available"], "SentGuideWhich": ["3(2) of the Criminal Appeal Act", "section 9 of the Criminal Appeal Act 1995."], "AppealOutcome": ["substitute convictions for common assault."], "ReasonQuashConv": ["the conviction now does not include the actual bodily harm which was found by the jury to have taken place"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Crown Court At Chester"], "ConvictPleaDate": ["2005-04-19"], "ConvictOffence": ["assault occasioning actual bodily harm"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Chester"], "Sentence": ["community punishment"], "SentServe": ["data not available"], "WhatAncillary": ["costs of the prosecution.", "community punishment"], "OffSex": ["All Male"], "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 Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Yes-drinking"], "ProsEvidTypeTrial": ["prosecution witness"], "DefEvidTypeTrial": ["Offender denies offence", "evidence given by Mr Mayers"], "PreSentReport": ["Don't know"], "AggFactSent": ["public place", "outbreak of violence", "serious offences"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["1"], "AppealAgainst": ["against conviction and sentence", "conviction"], "AppealGround": ["data not available"], "SentGuideWhich": ["3(2) of the Criminal Appeal Act", "section 9 of the Criminal Appeal Act 1995."], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence"], "ReasonQuashConv": ["the conviction now does not include the actual bodily harm which was found by the jury to have taken place"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 463 |
Neutral Citation Number:
[2005] EWCA Crim 346
Case No:
2004/00054/D2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT CANTERBURY
HHJ NASH AND A JURY
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
16/02/2005
Before :
LORD JUSTICE JUDGE
DEPUTY CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE CRESSWELL
and
MR JUSTICE FULFORD
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
- v -
ADEM KARAKAYA
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Ian Glen QC
(instructed by the Registrar) for the appellant
Stephen Hockman QC and Eleanor Laws
(instructed by
the CPS) for the respondent
Hearing date: 2nd February 2005
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Judge:
1.
This is an appeal by Adem Karakaya who, on 28th November 2003, in the Crown Court at Canterbury, before HHJ Nash and a jury, was convicted of indecent assault and rape of his 17 year old daughter between January and June 2002.
2.
The jury was unable to verdicts on counts 3 and 4 specimen counts alleging continuing rape between July and December 2002 and January 2003 and June 2003 respectively.
3.
On 2nd February we allowed the appeal, quashed the conviction, and ordered a new trial.
4.
To appreciate the reasons for our decision it is not necessary to describe the facts which led to the appellant’s prosecution and conviction. No criticism is made of the conduct of the trial or the summing up. The issue in the appeal arises from the introduction of extraneous material into the jury room after their retirement.
5.
The trial began on 24th November 2003. On 27th November, after a summing up in which, as Mr Stephen Hockman QC for the Crown pointed out, the judge had repeatedly directed the jury to decide the case according to the evidence, the jury retired at 11.40 am. Shortly after 2.45 pm the jury returned to court. In answer to a question about the translation of a note written originally in Turkish, the judge reminded the jury that they had heard all the evidence in the case, and “we cannot go adding to it now”. At 3.17 the jury was given what is usually referred to as the “majority” direction. At 4.20, the jury’s deliberations were adjourned for the day. Before they dispersed the judge directed them not to discuss the case among themselves when they left court. He pointed out that there had been instances where jurors telephoned each other and he directed them not to “go down that road”. “All your deliberations must of course be in the presence of each other. That is the way the system has to work. My advice to you is to forget about it entirely and come back refreshed tomorrow morning”.
6.
The jury resumed deliberations at just after 10 am on 28th November. At some time before 12.41 pm the judge received an indication that the jury had reached a verdict on count 1. They asked judge to remind them how they should approach the remaining counts once they had reached a verdict on count 1. The judge gave an appropriate direction, ending it by reminding the jury that their findings on a particular count could be used as supporting evidence, but it was not a “substitution for evidence that is not otherwise there”.
7.
The jury was ready with a verdict on count 2 at about 4.10. The verdicts on counts 1 and 2 were taken at 4.19. Both were majority verdicts, on count 1, indecent assault, 11 to 1; on count 2, rape, 10 to 2. The jury was discharged from giving verdicts on counts 3 and 4.
8.
After the jury left court, the jury bailiff discovered a number of documents in the jury room. It is virtually certain that they were brought into existence after the overnight adjournment on 27th November by a member of the jury, who downloaded the material from internet sites. The jury bailiff drew the documents to the attention of the judge. He studied them. When the court next convened, in his chambers, the judge informed counsel of what the jury bailiff had found.
9.
The introduction and presence of this material in the jury room provides the essential basis for the present appeal. No enquiry has been made of any member of the jury about the circumstances in which the documents came to be downloaded, or whether and if so how they were used during the jury’s deliberations. Mr Hockman reminded us that apart from the juror who had been personally responsible for downloading the documents, we could not be sure how many members of the jury actually saw them. In the event, however, we were able to decide the appeal without making any further investigation or enquiry of the jury about them.
10.
The documents fall into two groups. There are two typed documents, the first described as “The feminist position on rape”, and the second, from Colchester Rape Crisis Line, “Rape and the Criminal Justice System”. In addition, notes were made in handwriting on the back of the second document. We proceeded on the basis that the notes were made by the juror who had visited the internet and obtained the typed material.
11.
The typed material was described to us by Mr Ian Glen QC for the appellant as tendentious and inaccurate, which on proper analysis, should be treated as arguing that the credibility of complainants in rape cases ought in general to be supported. That description is not unfair. Some of the material is indeed inaccurate. For example, it suggests that before the case reached the Crown Court it would have been examined by three magistrates who would have considered whether, and by implication decided, that there was enough evidence “for a jury to convict on”. The material underlined the problem faced by witnesses making two court appearances, which might traumatise a witness and lead to the withdrawal of her complaint. Another passage was critical of judges who were “known to try to influence the jury when summing up”. In effect the material might have served to undermine the confidence of the jury in the fairness of the summing up, and the accuracy of the judge’s directions of law. One final example will complete the picture. It was argued that the conviction rates in rape cases were low, and by implication at any rate, disappointing. We need not provide any further outline of these documents. Mr Glen QC submitted that they included a number of points which the prosecution could not and would not have made either in evidence, or in an address to the jury. We agree. We cannot accept that the documents should be approached as if they were no more, or not much more, than an exhortation for an unbiased assessment of the credibility of rape victims.
12.
It was agreed between counsel that, consistently with decision of the House of Lords in
R v Mirza
;
R v Connor and Rollock
[2004] 1 AC 1118
, we were entitled to examine the material, which was wholly extraneous to the evidence presented at trial, and was brought into existence by a juror when he, or she, was not at court, either hearing evidence or deliberating with colleagues.
13.
The handwritten note on the back of one of the papers presented a greater problem. Mr Hockman wanted us to look at the note to support his contention that it showed that the juror who had downloaded the material from the internet had not abdicated his responsibility of trying the case according to the evidence. We doubted whether we should consider the document at all. However we were persuaded to examine it at least to form a preliminary view whether it might have any bearing on the issue before us. If the note clearly recorded or purported to record anything of the deliberations of the jury, we might then have had to decide how, if at all, it could be used by us, and whether and if so, how properly to seek information about it. Although the note looks as though it may have been a summary of the material made by the juror who had downloaded the texts, or by another juror to whom the texts had been shown, we do not know, and for the purposes of this appeal we do not need to know. We are however sure that the note has no bearing on the outcome of the appeal.
14.
The downloading of this material and its use by not less than one member of the jury after the jury had retired contravened very well established principles. In
Owen
[1952] 36 CAR 16, the trial judge allowed a doctor who had already given evidence in the case, to be recalled to give evidence in answer to a question raised by the jury after its retirement. The subsequent conviction was quashed on the basis that:
“… Once the summing up is concluded, no further evidence ought to be given. The jury can be instructed in reply to any question they may put on any matter on which evidence has been given, but no further evidence should be allowed.” (Per Lord Goddard CJ.)
15.
Lord Goddard returned to the same point in
Wilson
[1957] 41 CAR 226. He reasserted:
“The principle that, once the summing up is concluded, no further evidence ought to be given, must be maintained in every case, and, if further evidence is allowed at that stage, … the conviction will be quashed.”
16.
In
Sanderson
[1953] 37 CAR 32, the Court of Criminal Appeal presided over by Lord Goddard CJ held that it was permissible for the evidence for a witness for the defence to be taken after the summing up had been completed, but before the jury had retired. The judgment emphasised that the witness in question was a defence witness. Well-established principles governed the very limited circumstances in which the prosecution may call further evidence after closing its case. Nevertheless,
Sanderson
represents something of a relaxation of the absolute principle laid down in
Owen
.
17.
After
Sanderson
, in
Gearing
[1966] 50 CAR 18, Lord Parker CJ expressed the principle in terms which reiterated the analysis in
Owen
and
Wilson
, but made allowance for the decision in
Sanderson
. He said:
“It has always been a very strict rule of this court that no evidence whatever must be introduced after the jury have retired.”
18.
In
Davis
[1976] 62 CAR 194, the absolute nature of the observation that the conviction would inevitably be quashed in such circumstances, was questioned, not on the basis that the principle was in doubt, but whether every breach of it would result in the quashing of the conviction. The breach would be an irregularity, which depending on the circumstances might or might not result in the application of the proviso to
s 2(1) of the Criminal Appeal Act 1968
. The question now is whether the conviction could continue to be regarded as safe. We can, for example, envisage circumstances in which the material would be put before the jury at the request of the defendant on the basis that it advanced or purported to advance his case. If so, a later complaint would be unlikely to receive much sympathy.
19.
Davis
made clear that the principle applies equally to documentary evidence as it does to oral testimony. After retirement, the jury requested, and was inadvertently supplied with a copy of a statement made by a witness to the police. The statement had been used by defence counsel for the purposes of cross-examination, but the document itself had not been exhibited. Consistently with
Owen
and
Wilson
, it was held that this amounted to a material irregularity, although the proviso was applied.
20.
The principle has continued to be applied both in relation to oral testimony and documentary evidence. Perhaps we should note
Maggs
[1990] 91 CAR 243, doubting part of the decision in
Stewart and Sappleton
[1989] 89 CAR 273, which held that the principle would extend to a request by the jury for equipment which would enable them to carry out experiments of a kind which had not been examined during the course of the trial, but accepted that they might be provided with equipment of the kind which a member of the jury might have in his pocket, such as a magnify glass or a tape measure. In the present context, we would distinguish, for example, between research into publications and literature which might provide detailed information on the very subject under consideration by the jury, and a juror checking the correct meaning of a word by using a dictionary. Lord Lane CJ nevertheless asserted the essential principle that it was “well-established that no fresh evidence can be given to the jury after they have retired.”
21.
These considerations led the court in
Oliver
[1996] 2 CAR 514 to give guidance about the way in which the trial judge should direct the jury when exercising the then new discretion provided by
s 43 of the Criminal Justice and Public Order Act 1994
, to allow the jury to separate after they had retired to consider their verdict. The elements to be included in such a direction included:
“1. That the jury must decide the case on the evidence and the arguments which they have seen and heard in court, and not on anything they may have seen or heard or may see or hear outside the court.
2. That the evidence has been completed and that it would be wrong for any juror to seek for or to receive further evidence or information of any sort about the case …”.
22.
We must briefly return to
Stewart and Sappleton
, where reference was made to a then recent decision, and the observations of Tasker Watkins LJ in
Thomas
The Times, 9th February 1987, which touched on the reason for the rule. He said:
“It is hardly necessary to say that an action of this kind runs counter to all the guidance which this court has given from time to time … It can never be right for a jury to be provided with something which has not been part of the evidence in the trial.”
23.
In
Fricker
, The Times, 13th July 1999, where the defendant was charged with attempting to handle stolen tyres, a juror, with highly specialised knowledge of tyre manufacturing asked, after retirement, and was allowed by the judge to take this knowledge into account. The appeal was allowed on the basis that the juror in question was not allowed to introduce entirely new evidence when neither party had been provided with an opportunity to examine it. The jury should therefore have been discharged.
24.
It is easy, but superficial, to dismiss these rules as purely technical or procedural. In truth, they reflect something much more fundamental. If material is obtained or used by the jury privately, whether before or after retirement, two linked principles, bedrocks of the administration of criminal justice, and indeed the rule of law, are contravened. The first is open justice, that the defendant in particular, but the public too, is entitled to know of the evidential material considered by the decision making body; so indeed should everyone with a responsibility for the outcome of the trial, including counsel and the judge, and in an appropriate case, the Court of Appeal Criminal Division. This leads to the second principle, the entitlement of both the prosecution and the defence to a fair opportunity to address all the material considered by the jury when reaching its verdict. Such an opportunity is essential to our concept of a fair trial. These principles are too basic to require elaboration. Occasionally, however, we need to remind ourselves of them.
25.
On analysis these are the principles which govern the first direction which the judge gives to the jury at the beginning of every trial. The jury of course bring their own experience and knowledge of the world with them into court, and far from directing them to ignore everything that life has taught them, the judge encourages the jury to use and share their knowledge and understanding with their colleagues as they examine the evidence and reach informed judgments on it. He also, and most significantly for the purposes of this appeal, gives a clear and unequivocal warning to the jury that they should not discuss the case with anyone outside their own number nor allow anyone who is not a member of the jury to talk to them about the case. Again, the reason is simple. The case is to be decided on the evidence produced before the jury in court after they have heard counsel’s arguments and the judge’s directions. If a juror speaks to anyone about the case, even to someone precious and dear to him, indeed the more so if it is an individual whose thoughts and comments are valued, that person may say something which could influence the judgment of the juror and the outcome of the case. It will have happened in the absence of the prosecution and the defence and the trial judge and remaining members of the jury. None of them will know. Neither side will be able to call evidence to deal with the point or direct arguments to demonstrate that the point may be wrong. The verdict is then reached not only on the evidence produced in court, but on the observations and comments of the individual to whom the juror has spoken. That will not be a true verdict according to the evidence. It will be a verdict according to the evidence, as supplemented by the views and comments of outsiders without responsibility for the verdict.
26.
Just as a juror should not speak about a case to anyone other than another juror and for precisely the same reason of principle, he or she should not conduct private research for information which may have a bearing on the trial. The internet has many benefits, and we do not mean to diminish its value. Of course, not every site is always right. Some sites seek to persuade. The contents of some are inconsistent with the assertions made in another. The internet cannot discuss the case. It can however provide material which may influence a juror’s views. If used for research purposes during the trial it can just as easily influence the juror’s mind as a discussion with a friend or neighbour. And if so, the verdict is no more a true verdict according to the evidence than a verdict in which one or more members of the jury have taken account of something said to them out of court.
27.
Applying these principles to the present case, the material obtained by the juror from the internet after the jury had retired, contravened the principles which prohibit the use of information, potentially relevant to the outcome of the case, privately obtained out of court by a juror, as well as the reception of further material after the jury’s retirement. Having considered the material, we are not satisfied that these convictions are safe.
28.
We should add that the Judicial Studies Board is currently considering whether it would be helpful to prepare broad guidance to assist in the formulation of appropriate judicial directions. These might usefully include an explanation to the jury (a) why they should not discuss the case with anyone other than other members of the jury, nor allow anyone outside their number to discuss the case with them, and (b) why they should not endeavour to do their own research during the course of the trial, for example, by researching the internet, or elsewhere; and assist the jury if they become concerned at possible manifestations of prejudice by another member of the jury; in short, brief guidance about how best to give effect to the decision of the House of Lords in
R v Mirza; R v Connor and Rollock
, and the Practice Direction relating to guidance for jurors issued by the Lord Chief Justice on 23rd February 2004. | {"ConvCourtName": ["Crown Court at Canterbury"], "ConvictPleaDate": ["28th November 2003"], "ConvictOffence": ["indecent assault", "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 Canterbury"], "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": ["daughter"], "VictimType": ["his 17 year old daughter"], "VicNum": ["his 17 year old daughter"], "VicSex": ["daughter"], "VicAgeOffence": ["17"], "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’s"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["conviction"], "AppealGround": ["appeal arises from the introduction of extraneous material into the jury room after their retirement"], "SentGuideWhich": ["s 43 of the Criminal Justice and Public Order Act 1994", "s 2(1) of the Criminal Appeal Act 1968"], "AppealOutcome": ["allowed the appeal, quashed the conviction, and ordered a new trial."], "ReasonQuashConv": ["Having considered the material, we are not satisfied that these convictions are safe."], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Crown Court At Canterbury"], "ConvictPleaDate": ["2003-11-28"], "ConvictOffence": ["rape", "indecent assault"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Canterbury"], "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": ["Relative"], "VictimType": ["Individual person"], "VicNum": ["1 of 1"], "VicSex": ["All Female"], "VicAgeOffence": ["17"], "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": ["conviction"], "AppealGround": ["appeal arises from the introduction of extraneous material into the jury room after their retirement"], "SentGuideWhich": ["s 2(1) of the Criminal Appeal Act 1968", "s 43 of the Criminal Justice and Public Order Act 1994"], "AppealOutcome": ["allowed the appeal, quashed the conviction, and ordered a new trial."], "ReasonQuashConv": ["Having considered the material, we are not satisfied that these convictions are safe."], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 507 |
No:
200602394/2270/A8
Neutral Citation Number:
[2007] EWCA Crim 205
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Wednesday, 24th January 2007
B E F O R E:
LORD JUSTICE GAGE
MR JUSTICE BURTON
THE RECORDER OF WINCHESTER
(Sitting as a Judge of the Court of Appeal Criminal Division)
- - - - - - -
R E G I N A
-v-
AKSOY TAHIR AND JAMIE ADAMS
- - - - - - -
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 MOSES
appeared on behalf of TAHIR
MISS A MULLIGAN
appeared on behalf of ADAMS
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE GAGE: In this matter there are two men, Aksoy Tahir, now aged 37, and Jamie Adams, also now aged 37. In Tahir's case he has leave to appeal against his sentence. In Adams' case the Full Court, when giving leave to Tahir, gave him an extension of time in which to renew his application for leave. Each of them appear in this court through counsel.
2.
On 18th November 2005, at the Crown Court at Middlesex Guildhall, each man pleaded guilty to a single count of conspiracy to supply cannabis. On 12th April 2006, Tahir was sentenced to six years and nine months' imprisonment and Adams was sentenced to six years' imprisonment. 262 days that each had spent on remand were ordered to count towards each of their sentences. There was another co-accused, Anthony Piper. He pleaded guilty to the same count. He was sentenced to two years' imprisonment. He, also, was given credit for the 262 days which he had spent on remand.
3.
As we have indicated, leave to appeal against sentence was refused by the single judge, but on 13th October 2006 the Full Court gave leave to Tahir to appeal against his sentence on two grounds to which we will come in a moment. As we have said, they also extended the time for Adams to apply to renew his application for leave and he has done so.
4.
The facts are as follows. It was alleged by the prosecution that Tahir, Adams and Piper were involved in conspiring to supply cannabis between September 2004 and July 2005. The judge sentenced both these appellants on the basis that they were engaged in the conspiracy from February 2005 onwards. Piper's involvement was limited to one day.
5.
Tahir and Adams were kept under surveillance. On 3rd February 2005 a man named Blake met Adams and Tahir at Adams' home address. Blake was arrested after the meeting. He was found to be in possession of a bag containing £40,000 in cash, which the prosecution contended were the proceeds of drug trafficking.
6.
On 16th July 2005 a number of people were observed pulling up outside Adams' garage. They handed Adams empty bags which he took into his garage and returned full of what was believed to be cannabis. After his arrest, the garage was search and 3 kilogrammes of skunk cannabis was recovered from it.
7.
On 21st July 2005 Piper was seen receiving a large cardboard box from a van outside his house. He took the box inside and went out. Two hours later, Adams and Tahir drove up. They went inside and came out with a box which was subsequently found to contain 11 kilogrammes of cannabis resin. A further 22 kilogrammes of cannabis resin was recovered from Piper's house. £10,000 in cash, heavily contaminated with THC, the active constituent of cannabis, was recovered from Adams' house.
8.
Piper pleaded guilty on the basis that he was warehousing 33 kilogrammes of cannabis at his house and his involvement was limited to that day. The judge sentenced him on that basis.
9.
Adam and Tahir entered bases of plea, limiting their involvement to a certain quantity of skunk cannabis detailed in a record of transactions kept by Adams in an exercise book. We shall refer to the basis of plea in respect of Tahir later in this judgment.
10.
Adams and Tahir accepted responsibility for transactions involving 51 kilogrammes of skunk cannabis detailed in the exercise book, in addition to the 11 kilogrammes cannabis resin found on their arrest. Tahir also accepted responsibility for the 3 kilogrammes found in Adams' garage.
11.
The Crown did not accept the pleas on this basis. Accordingly, a
Newton
hearing took place. In the
Newton
hearing the court found that the basis of plea understated the quantity of cannabis in which they had been dealing. It is clear from submissions made to us today that the amount for which they were found responsible as a result of the
Newton
hearing by the judge was 127 kilogrammes of which 94 kilogrammes of cannabis resin was skunk cannabis. The judge sentenced them on the basis that each was equally responsible for that amount of cannabis resin.
12.
There are two grounds of appeal for which leave was granted by the Full Court. They gave leave, as we have indicated, to Tahir, he having renewed his application for leave, it being refused by the single judge. The two grounds are, first, that the judge was wrong to reduce the discount for a guilty plea from the normal one third to 20 per cent; secondly, that the judge should not have used the silvine notebook as evidence against Tahir when assessing his part in the conspiracy. Giving an extension of time to Adams in which to seek leave to appeal out of time, the Full Court clearly had in mind that he ought to be permitted to put forward ground 1 of Tahir's appeal since it has common application to both men. Accordingly, we propose to deal with ground 1 first.
13.
Both men submit that the judge should have given them the full discount of one third. It is submitted that he was wrong to reduce the discount from one third to 20 per cent. It is pointed out on behalf of each appellant that the prosecution at first alleged that each had been responsible for the distribution of a total of 900 kilogrammes of cannabis. By the date of the
Newton
hearing, and there is some confusion as to whether or not it was at the hearing itself or before, the Crown had reassessed its estimate of the amount involved and reduced it to 300 kilogrammes. The basis of the
Newton
hearing was that the notebook in Adams' possession, the Crown said, referred to a greater quantity than the amount admitted by the two men.
14.
The submission made on their behalf is that the
Newton
hearing was inevitable, that the reason was because the prosecution had grossly over-estimated the amount of cannabis with which each was involved, and, accordingly, it took place simply on a basis of the interpretation of Adams' notebook.
15.
When it came to sentence, the judge dealt with that matter in this way:
"Both of you, Tahir and Adams, are to be treated as having pleaded at the earliest opportunity. Nevertheless, there had to be a
Newton
hearing and the first question the court has to consider is to what extent does the fact that there had to be a
Newton
hearing result in there being a withholding in part of the reduction in the sentence which would otherwise be applicable having regard to your early guilty pleas?
On my findings, I have come to the conclusion that you dealt, as is evidenced by the exercise book, in an amount more than twice the amount admitted by you, Adams. On the other hand, it is rightly pointed out that the amount which I found is much less than the amount contended for by the Crown, even in its revised submission of 300 kilogrammes of skunk."
16.
The judge went on to say:
"My initial view was, as I indicated to Mr Warner, that the right approach was to regard the
Newton
hearing and its outcome as having the effect of reducing the credit to which you would otherwise have been entitled for your early plea of guilty, by one half. But he has persuaded me that that is too harsh an approach. I have come to the conclusion that there should be a reduction in the credit which you would otherwise receive, but the reduction should be to the extent of one third of the credit. So that instead of receiving 30 per cent credit you will receive 20 per cent credit for your plea of guilty. The
Newton
hearing has had the effect of reducing the credit for your plea of guilty to that extent."
17.
It is submitted on behalf of both these two men that the judge should have given full credit for their guilty plea; as we have indicated, the reason being that it is submitted that the
Newton
hearing was entirely due to the prosecution's over-estimate of the amount of cannabis with which they were involved.
18.
In our judgment, there is some force in the appellants' arguments that the
Newton
hearing established that they were responsible for a total of less than half that alleged by the prosecution during the course of the hearing. Nevertheless, as the judge said, he found that they were responsible for considerably more than the figure which was admitted. In our view, the judge was correct to find that they were not entitled to the full discount. They had gained a benefit from the
Newton
hearing, but equally they had not gained the full benefit of what they sought. Accordingly, he reduced the discount from one third to 20 per cent. In our judgment, the reduction was well within the level of what was in all the circumstances reasonable. We see no reason to interfere with that assessment.
19.
We turn, therefore, to the second ground of appeal which is a ground of appeal solely related to Tahir. It is submitted on his behalf that his role was less than that of Adams. It is submitted that he was only a courier and was not equally responsible as the judge found. The basis for this submission, as it appears to have been put before the Full Court when it granted leave, was that the judge was wrong to take into account, so far as Tahir is concerned, the calculations that he made in respect of Adams' notebook. It appears from the judgment of the Full Court that the submission being made to that court was that the notebook was not evidence which was admissible against Tahir and, accordingly, the judge ought not to have found him as responsible as Adams. The Full Court recites the case of
R v
Blake and Tye
[1844] 6 QB 126
. That appears to be the basis upon which the matter was placed before it.
20.
Before us today Mr Moses has submitted that the judge was not entitled on all the evidence to have concluded that Mr Tahir was equally responsible with Adams. As we understand his submissions, he seeks to rely on the fact that his client was not specifically involved in the
Newton
hearing and, accordingly, the judge ought to have dealt with him simply on the basis of what he had admitted in his basis of plea.
21.
Accordingly, we turn to the basis of plea. It is contained first in a handwritten document and, secondly, in a printed document which bears the name beneath it of Mr Moses, his counsel, and is dated 1st December 2004. The handwritten document recites the fact that the appellant accepts:
"[He] was involved in a conspiracy to supply a class C drug namely cannabis from 24th February 2005 to 21st July 2005.
Prior to 21st July 2005 the defendant had been dealing in skunk cannabis. The drugs seized from Adams' car on 21st July 2005 was not the type of drug which he had hitherto dealt in. The defendant has no knowledge of the 22 kilos of cannabis found at Piper's address."
22.
The printed "explanation of calculation in basis of plea" recites the following at paragraph 2:
"The totality of the said drugs in respect of which Mr Tahir had knowledge and agreed to involve himself in are made up of the following:
(a) 51 kilogrammes of skunk (referred to in the notebook of Adams);
(b) 11 kilogrammes of cannabis resin (seized from Adams' vehicle)."
23.
It would appear from that document, at least, that Tahir was tying his basis of plea to what was recorded in Adams' notebook. That also coincided, as we understand it, with the basis of plea being put forward by Adams.
24.
Dealing with the first point so far as this ground is concerned, which is whether or not the notebook was evidence against Tahir, we have been referred by Mr Moses not only to
Blake and Tye
, but also to a decision of this court in
R v
Devonport and Pirano
[1996] 1 Cr App R 221. The headnote of the report in that appeal reads as follows:
"The appellants were two of five people convicted of conspiracy to defraud the National Westminster Bank of £310,000. The prosecution relied on a document dictated by one defendant, as evidence of the conspiracy against all the defendants. The document showed the proposed division of the proceeds of the conspiracy among all five defendants. The document was admitted, although there was no evidence that the appellants had prepared the document or had been a party to its preparation and there was no link or connection between either of them and the document.
Held, dismissing the appeal, that (1) the document was admissible against each defendant, if it constituted an act or declaration by the other defendant in furtherance of the conspiracy and provided that there was some further evidence beyond the document itself to prove that they were parties to the conspiracy alleged against them; Blake, Donat and Windass [references given]. Since there was such further evidence of the conspiracy and although none of the other conspirators had anything to do with the preparation of the document, or had handled it, prima facie it was prepared in furtherance of the conspiracy and was therefore admissible."
25.
In the course of giving the judgment of the court, Judge J, as he then was, said at page 227:
"The only remaining question therefore was whether the document was prepared in furtherance of the conspiracy. We do not accept that it should only have been admitted if every other possible explanation for it had been excluded. We do not see
Steward
[1963] Crim LR 697 as supporting that proposition as advanced by Mr Bright. In our judgment, a realistic or reasonable inference that it was prepared in furtherance of the conspiracy would be sufficient for these purposes.
We have of course considered the document itself. The document appears to be not a record of distribution after the conspiracy, as in the case of
Tye
, but an indication of the intended or prospective distribution of the proceeds of the conspiracy when it had been fulfilled. It identifies the conspirators. It is therefore a rare and compelling example of written evidence of the existence of a conspiracy and of the identity of participants in it. Although none of the other conspirators had had anything to do with the preparation of the document, or handled it, prima facie it was prepared in furtherance of the conspiracy, therefore it was admissible."
26.
On behalf of Tahir, Mr Moses submits that the document which the judge had before him was no more than jottings by Adams for his own benefit and not admissible against his client.
27.
So far as that is concerned, the judge in ruling on the
Newton
hearing said of the silvine book (page 3 letter H):
"It is clear that the silvine book is a record of dealings by Adams, on his evidence, which was not challenged by Mr Gadsden, for the Crown. It is, to an extent, at any rate, also a running record, showing how payments were made for the drugs by Adams' customer."
28.
At letter C:
"In addition to the figures representing 'cash expected', 'cash received', 'cash paid (to the suppliers)', there are numerous notes indicating the number of kilogrammes of skunk supplied to different customers, whose names normally appear in an abbreviated form."
29.
In the case that we have to deal with, Tahir's case, it was for the judge to decide whether or not the document was one prepared in furtherance of the conspiracy. There was no doubt that there was a conspiracy which included both Tahir and Adams; that was apparent from the pleas of both of them. There was also evidence that each was concerned in supplying drugs. The question for the judge was: what inference was he entitled to draw from the notebook and all the other evidence?
30.
He said in his sentencing remarks (page 7):
"Now, so far as you, Tahir, are concerned, it is urged on your behalf that you are not affected by my findings in relation to the exercise book and that I should still sentence you on the basis of your plea that you were only involved in the conspiracy to the extent of dealing in those 51 kilogrammes clearly identified within the exercise book, plus the 11 kilogrammes in Adams' car and the 3 kilogrammes in Adams' garage."
We interpolate, precisely the same submission that is made before the this court.
31.
The judge continued:
"I see no basis at all for differentiating between your position and Adams' position in this regard. The exercise book refers on more than one occasion to the sums due or owed as 'we owe' or 'we pay' and there is no distinction or differentiation made anywhere in that exercise book between different transactions such as suggest that some were Adams' own responsibility and not equally yours.
In the prosecution case summary it was asserted by the Crown that the matter should be approached on the basis that you, Tahir, were the principal member of the conspiracy, with Adams being your trusted lieutenant. Mr Gadsden, on the Crown's behalf when I asked him what the evidence was to support that, acceded to my suggestion that it might be appropriate in the circumstances to treat each of you, Adams and Tahir, as equally involved."
32.
The judge went on a little later:
"But you, Tahir, through your counsel, have suggested that you were involved in a much more minimal way altogether, that you were involved initially, it is suggested, as a kind of courier. But when I enquired whether you had driven the car it turned out that you cannot drive. Mr Moses on your behalf refined that part of the submission to suggest that you were, as is carefully worded in your basis of plea, simply involved in the distribution. But I am totally unconvinced by that suggestion, particularly bearing in mind your previous record, to which I shall refer in more detail later, as a convicted drugs dealer. I am quite satisfied that you were dealing in these drugs at least to the same extent as your co-conspirator Adams."
33.
We have no doubt that this was a finding which the judge was entitled to make on all the evidence in the case. In our judgment, the notebook kept by Adams was properly admissible as evidence against Tahir and it was, similarly to the case of
Devonport and Pirano
to which we have referred, compelling evidence about the way in which the conspiracy was run, both men being involved it. Accordingly, we reject this ground of appeal.
34.
One other matter needs to be dealt with. On behalf of Adams Miss Mulligan sought to raise a point which was in his original grounds of appeal, which were not renewed and for which he has not got an extension of leave. Accordingly, we can deal with it shortly. The submission is that the judge failed to take into account matters of personal mitigation in respect of Adams. Among other things, it is submitted it is an unusual case because he had taken on responsibility for young children and therefore the sentence passed on him would be that much more onerous than usually. It is quite clear from his sentencing remarks that the judge was well aware of the appellant's personal circumstances. He plainly took that into account. In our judgment, there is nothing in that submission.
35.
Accordingly, we grant leave, so far as Adams is concerned, but we dismiss the appeals in each case. | {"ConvCourtName": ["Crown Court at Middlesex Guildhall"], "ConvictPleaDate": ["18th November 2005,"], "ConvictOffence": ["conspiring to supply cannabis"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["each man pleaded guilty"], "PleaPoint": ["at the earliest opportunity."], "RemandDecision": ["on remand"], "RemandCustodyTime": ["262 days"], "SentCourtName": ["data not available"], "Sentence": ["six years and nine months' imprisonment", "six years' imprisonment.", "262 days that each had spent on remand were ordered to count towards each of their sentences."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["two men"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["Adams' 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": ["garage was search", "record of transactions"], "DefEvidTypeTrial": ["submitted on his behalf that his role was less"], "PreSentReport": ["data not available"], "AggFactSent": ["quantity of skunk cannabis", "£10,000 in cash"], "MitFactSent": ["responsibility for young children"], "VicImpactStatement": ["data not available"], "Appellant": ["appellants"], "CoDefAccNum": ["another co-accused"], "AppealAgainst": ["against his sentence"], "AppealGround": ["the judge should not have used the silvine notebook as evidence", "the judge was wrong to reduce the discount for a guilty plea from the normal one third to 20 per cent"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["we dismiss the appeals in each case."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["In our judgment, the notebook kept by Adams was properly admissible as evidence"]} | {"ConvCourtName": ["Crown Court At Middlesex Guildhall"], "ConvictPleaDate": ["2005-11-18"], "ConvictOffence": ["conspiring to supply cannabis"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["at the earliest opportunity."], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["262 days"], "SentCourtName": ["data not available"], "Sentence": ["262 days that each had spent on remand were ordered to count towards each of their sentences.", "six years' imprisonment.", "Tahir"], "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": ["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", "Police evidence"], "DefEvidTypeTrial": ["Offender admits only to lesser offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["Value", "Financial gain /value"], "MitFactSent": ["responsibility for young children"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["2"], "AppealAgainst": ["against his sentence"], "AppealGround": ["the judge should not have used the silvine notebook as evidence", "the judge was wrong to reduce the discount for a guilty plea from the normal one third to 20 per cent"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["In our judgment, the notebook kept by Adams was properly admissible as evidence"]} | 376 |
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No. 201904566 A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2020] EWCA Crim 799
Royal Courts of Justice
Wednesday, 13 May 2020
Before:
LORD JUSTICE POPPLEWELL
MR JUSTICE GOOSE
MR JUSTICE MARTIN SPENCER
REGINA
V
KEVIN BARRY SPENCER
REPORTING RESTRICTION APPLIES:
SEXUAL OFFENCES (AMENDMENT) ACT 1992 APPLY
__________
Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd.
Official Court Reporters and Audio Transcribers
5 New Street Square, London, EC4A 3BF
Tel: 020 7831 5627 Fax: 020 7831 7737
[email protected]
________
MS F. PENCHEON
appeared on behalf of the Appellant.
The Crown were not represented.
_________
J U D G M E N T
OPUS 2 DIGITAL TRANSCRIPTION
MR JUSTICE MARTIN SPENCER:
1
The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition will apply unless waived or lifted in accordance with section 3 of the Act.
2
The applicant Kevin Barry Spencer seeks leave to appeal against a sentence of five years' imprisonment imposed by his Honour Judge Khokhar in the Crown Court at Leeds on 22 November 2019 in respect of five offences of indecent assault committed in the early 1990s.
3
The facts relating to these offences are as follows. The complainants were two sisters, G and H. Counts 1, 2 and 3 related to offences against G. Counts 5 and 6 related to H. At the time, G was around eight years of age and H was around six. The applicant was aged around 23 at the time. The girls’ father was a church minister, and the applicant befriended the family when he visited the church. He became a frequent visitor to their home and would play with the girls in their bedroom. The applicant indecently assaulted both girls in the family home. On multiple occasions he touched G and H on their vaginal areas, both over and under their clothing, and these were the facts that accounted for counts 1, 2, 5 and 6. On one specific occasion he kissed G's naked vagina in the bathroom, and that was count 3. The applicant told G not to tell her parents about what he had been doing.
4
As the learned judge remarked when sentencing the applicant, the abuse of G only stopped when she learned through sex education at school that what the applicant had been doing was abuse and informed her mother. What she did not know at the time was that H, who was only six years of age, was also being abused. By reason of their age the children were very vulnerable. There was grooming to the extent that the applicant had suggested to both girls that he would be their boyfriend and he had tried to dissuade them from reporting him to their parents. This was offending over a period of time against two very young girls.
5
Sentencing the applicant, the learned judge referred to the difficulties which the applicant had faced from being born with the congenital defect of spina bifida with associated hydrocephalus and also to his having fallen when a child which had caused some damage to his brain and a loss of eyesight in his right eye.
6
The applicant became a frequent visitor to the girls’ father and his family, and he was trusted with their young daughters. He betrayed that trust, said the sentencing judge, by committing these indecent assaults. The learned judge appropriately adopted the approach of imposing a lead sentence for the most serious offence, which was count 3 on the indictment, a sentence which was intended to reflect the overall offending, and he then imposed lesser concurrent sentences in relation to the other counts. Nevertheless, the lead sentence of five years' imprisonment was within the modern Sentencing Guideline which gives a starting point of four years and a sentencing range of three to seven years' imprisonment for a single offence.
7
On behalf of the applicant, Miss Pencheon, for whose submissions we are very grateful, has renewed the application for leave to appeal, submitting that the sentence of five years' imprisonment was manifestly excessive. She relies on three matters: firstly, the age of the offences; secondly, the immaturity of the appellant at the time of the offending; thirdly, the effect that a custodial sentence would have on the appellant, given his personal
circumstances and his on-going health issues. She further submits that the learned judge had been wrong in principle to pass a deterrent sentence.
8
The applicant's mental health issues are referred to in the pre-sentence report where the author states his assessment that various features of the applicant's physical health, emotional well-being, learning difficulties, traumatic experiences and upbringing have contributed to his offending behaviour, the applicant viewing himself as a "person to be worth nothing", who has clear attachment and abandonment issues. The applicant has never held any type of employment. He attended a specialist school due to his physical health issues and learning difficulties and has never had a proper family relationship. Dr Waheed, the consultant psychiatrist instructed, has expressed the opinion that a custodial sentence will lead to worsening of the applicant's mental state, specifically depression of mood, lowering of self-esteem, leading to hopelessness and worsening of mood and negative cognitions, with an increased risk of suicide.
9
In addition, we take account of the fact that with his physical and mental disabilities the applicant will be a misfit in prison. That will make the effect of imprisonment upon him more severe than it would on somebody who did not have those disabilities, and that does go, to some extent, to the length of sentence.
10
So far as deterrence is concerned, this is a reference to the following remark made by the learned judge when sentencing the applicant. He said:
"I have to balance your interests against what you have done, because the elements of punishment are not simply to punish you, but it is also to deter others from doing anything like this."
11
This was, however, said in the context of submissions being advanced by Miss Pencheon that the effect of prison on the applicant would be greater than it would be on an able-bodied person or someone without the difficulties suffered by the applicant. The judge was not, in our view, passing a deterrent sentence as such.
12
Despite the submissions made on the applicant's behalf, we take the view that it is not reasonably arguable that the sentence of imprisonment was manifestly excessive. The learned judge had full regard to the mitigating factors and to the appropriate Sentencing Guidelines and he kept within the Guidelines for a single offence, even though he was sentencing for multiple offending against two different victims. In our judgment, the sentence could reasonably have been longer.
13
Refusing leave to appeal, the single judge stated that the fact this was part of a five-count indictment involving two victims alone justified the final sentence of five years. He referred to the fact that historic offending is not treated more leniently than current offending, subject to consideration of any difference in the maximum sentences.
He remarked that custody was inevitable for this sort of offending against two very young victims over a period of time and it was inconceivable to reduce the sentence to two years or less so that suspension of the sentence could be considered. He pointed to the fact that in the pre-sentence report the applicant was unwilling to engage in any work or interventions to address his cognitive deficit in the light of his continued denial of the offences. The single judge referred to the fact that the author of the pre-sentence report was of the opinion that the applicant posed a high risk of serious harm to children and vulnerable known adults, if not in his existing care home setting.
14
We agree with all these points made by the single judge in refusing leave to appeal, and for
all the above reasons, in our view this application must be dismissed. ______________
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Transcribed by
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This transcript has been approved by the Judge. | {"ConvCourtName": ["Crown Court at Leeds"], "ConvictPleaDate": ["22 November 2019"], "ConvictOffence": ["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 Leeds"], "Sentence": ["five years' imprisonment"], "SentServe": ["a sentence of five years"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["23"], "OffJobOffence": ["never held any type of employment"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["mental health issues"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["befriended the family"], "VictimType": ["The complainants"], "VicNum": ["two"], "VicSex": ["sisters"], "VicAgeOffence": ["eight years of age and H was around six"], "VicJobOffence": ["eight years of age and H was around six"], "VicHomeOffence": ["family home"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Dr Waheed, the consultant psychiatrist"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["high risk of serious harm to children and vulnerable known adults"], "AggFactSent": ["vulnerable", "grooming", "offending over a period of time", "multiple occasions", "betrayed that trust", "in the family home."], "MitFactSent": ["on-going health issues"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["leave to appeal against a sentence"], "AppealGround": ["sentence of five years' imprisonment was manifestly excessive", "firstly, the age of the offences; secondly, the immaturity of the appellant at the time of the offending; thirdly, the effect that a custodial sentence would have on the appellant, given his personal circumstances", "circumstances and his on-going health issues. She further submits that the learned judge had been wrong in principle to pass a deterrent sentence"], "SentGuideWhich": ["Sexual Offences (Amendment) Act 1992"], "AppealOutcome": ["application must be dismissed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The learned judge had full regard to the mitigating factors and to the appropriate Sentencing Guidelines and he kept within the Guidelines"]} | {"ConvCourtName": ["Crown Court At Leeds"], "ConvictPleaDate": ["2019-11-22"], "ConvictOffence": ["indecent assault"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Leeds"], "Sentence": ["five years' imprisonment"], "SentServe": ["Concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["23"], "OffJobOffence": ["Unemployed"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Had mental health problems"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individuals"], "VicNum": ["2"], "VicSex": ["All Female"], "VicAgeOffence": ["6-8"], "VicJobOffence": ["Child"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Expert testimony/report"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["High risk of harm"], "AggFactSent": ["betrayed that trust", "Prolonged", "grooming", "vulnerable", "multiple occasions", "Location"], "MitFactSent": ["on-going health issues"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Other"], "AppealGround": ["circumstances and his on-going health issues. She further submits that the learned judge had been wrong in principle to pass a deterrent sentence", "firstly, the age of the offences; secondly, the immaturity of the appellant at the time of the offending; thirdly, the effect that a custodial sentence would have on the appellant, given his personal circumstances", "sentence of five years' imprisonment was manifestly excessive"], "SentGuideWhich": ["Sexual Offences (Amendment) Act 1992"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The learned judge had full regard to the mitigating factors and to the appropriate Sentencing Guidelines and he kept within the Guidelines"]} | 384 |
Neutral Citation Number:
[2020] EWCA Crim 280
No: 201901380/B3 & 201901490/B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 20 February 2020
B e f o r e
:
LORD JUSTICE HOLROYDE
MRS JUSTICE CUTTS DBE
HIS HONOUR JUDGE WALL QC
(Sitting as a Judge of the CACD)
R E G I N A
v
JACK STEVENS
Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22
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Mr M Ivers QC
appeared on behalf of the
Appellant
Mr H Davies QC and Miss L Oakley
appeared on behalf of the
Crown
J U D G M E N T
(Approved)
1.
LORD JUSTICE HOLROYDE: On 13 March 2019 at the conclusion of a trial in the Central Criminal Court before Her Honour Judge Dhir QC and a jury, this appellant, Jack Stevens was convicted of the murder of Nashon Esbrand. He was subsequently sentenced to custody for life, with a minimum term of 23 years, less the 203 days he had spent on remand in custody. He appeals against his conviction by leave of the single judge, who referred to the full court the appellant's application for leave to appeal against sentence.
2.
Nathan Esbrand, the deceased, was 27 years old when he was stabbed and fatally wounded by Dior Lupqi, a youth aged only 15 years 10 months. The appellant was then aged 18 years two months. Others involved included Dhillon Zambon, aged 19 years six months, and John Berhane, aged 17 years eight months. For convenience, and intending no disrespect, we shall use surnames only.
3.
The appellant was a member of a gang called the Cally Boyz. Berhane was a member of an associated gang. The deceased had been involved in an incident with the appellant and other members of the Cally Boyz on 1 March 2017. In the following months the deceased had been subject to intimidation. In July 2017 he was attacked in the street by three youths. The prosecution alleged that the appellant bore a grudge against the deceased, whom he believed to have assisted the police in relation to the earlier incident.
4.
On the evening of 24 August 2017, the appellant and Zambon, who were riding bicycles, chanced to see the deceased, who was on foot. They pursued him and he began to run. The appellant made phone calls to Berhane. Berhane, Lupqi and a third man (who has not been identified), all riding bicycles and all with their faces covered, then joined the pursuit. All five followed the deceased as he ran through the streets, using their bicycles to block his path. The deceased called his father as he ran, asking to be collected by car and his father tried to locate him. The deceased reached a house where he knew the occupants and ran to the front door, but he was caught by Lupqi and stabbed three times with a large knife. All five pursuers then cycled off as a group.
5.
One of the stab wounds had severed the deceased's femoral artery, causing massive blood loss. Despite medical intervention, he sadly died in hospital a few hours later.
6.
The appellant fled to Spain, where he remained until extradited back to the United Kingdom.
7.
Lupqi, Berhane and Zambon were arrested and charged with murder. Lupqi pleaded guilty. The other two were convicted after a trial in March 2018 before Her Honour Judge Dhir and a jury. On 25 June 2018 Lupqi was sentenced to be detained at Her
Majesty's Pleasure with a minimum term of 12 years; Berhane to be detained at Her Majesty's Pleasure with a minimum term of 21 years; and Zambon to custody for life with a minimum term of 21 years.
8.
At the later trial of the appellant, the prosecution relied on evidence relating to the following: the appellant's gang membership, including YouTube footage of the appellant and Berhane with rap lyrics referring to the Cally Boyz' use of knives; the incidents in March and July 2017; CCTV and mobile phone footage showing the pursuit and stabbing of the deceased on 24 August 2017; the eye witness evidence of persons who saw parts of the pursuit; the evidence of the deceased's father; mobile phone data and cell site information in respect of relevant phone calls; and the appellant's flight to Spain.
9.
In addition, the prosecution sought to adduce evidence pursuant to section 74 of the Police and Criminal Evidence Act 1984 of the convictions for murder of Lupqi, Zambon and Berhane. It was argued by the defence that the evidence was not admissible or in the alternative that it should be excluded on the grounds of fairness pursuant to section 78 of the 1984 Act.
10.
Counsel on each side referred to a number of decided cases, of which we shall say more shortly, and it is clear that the judge had them in mind when she gave a written ruling dated 1 March 2019. She held that "evidence that Lupqi, Berhane and Zambon murdered Esbrand is plainly admissible in a case where it is alleged that Stevens was party to a joint enterprise with them to murder Esbrand", and that the real issue was whether the evidence of the convictions should be excluded pursuant to section 78.
11.
In considering that issue, the judge noted that it was an essential element of the prosecution case against the appellant that the deceased was murdered. Therefore, "If Lupqi was the one who stabbed Esbrand, then the prosecution need to prove, as part of their case against Stevens, that Lupqi murdered Esbrand. But it was not a necessary precondition of Lupqi's guilt that Stevens was also guilty of murder." She held that there would be no unfairness in admitting evidence of Lupqi's conviction. She observed that Mr Ivers QC - then as now appearing for the appellant - had not argued strongly against that conclusion.
12.
Mr Ivers had however submitted that it would be unfair to adduce evidence of the convictions of Berhane and Zambon. He argued that the situation was similar to a closed conspiracy involving two parties, in which it is implicit in the conviction of one that the other is also guilty. The judge rejected that analogy, saying at paragraph 18 of her ruling:
i.
"Stevens' guilt was not implicit in the conviction of Berhane (or
Zambon). The essence of the case against Berhane (and Zambon)
was that he assisted Lupqi to murder Esbrand. The jury at their trial could find Berhane (and Zambon) guilty of murder whether or not they were sure that Stevens intended to assist Lupqi to cause grievous bodily harm to Esbrand."
13.
The judge went on to say that it was relevant to the prosecution case against the appellant to prove that the man whom he telephoned (Berhane) assisted Lupqi to murder the deceased. Although Mr Ivers had indicated that the defence would not be seeking to argue that the attack on the deceased was not a joint attack, there was no specific admission that Berhane was a party to the attack. Evidence of Berhane's conviction would not close off the issue which the jury had to try, namely whether the appellant knowingly participated in a murderous attack.
14.
The same applied, the judge said, to Zambon's conviction. She rejected the defence submission that the appellant's role could be regarded as indistinguishable from Zambon's role, so that evidence of Zambon's conviction would come very close to closing off the issue which the jury had to try. She said at paragraph 21:
i.
"The jury will have to consider the evidence as to what Stevens did and what he intended, independently of the case against any of the other participants, and taking account of such evidence (if any) as Stevens may give in explanation of his actions and his intentions. If he gives evidence that he was innocently caught up in the wrongdoing of others, the jury will have to assess that evidence, and their consideration will not be closed off by learning of the convictions of Lupqi, Berhane or Zambon."
15.
The judge therefore granted the prosecution application.
16.
The appellant gave evidence to the following effect. He had been associating with the Cally Boyz since he was 14 or 15. They were known as a violent gang, and members carried knives or hid them so that they could be available for use, though he did not do so himself. He had no issue with the deceased, even after the incident of 1 March 2017, and wished him no harm. When he and Zambon chanced to encounter the deceased on 24 August 2017, the deceased had made a challenging remark and put a hand into his trousers as if he was carrying a weapon. The appellant only followed the deceased because he did not want to give the appearance that he was scared. He called Berhane and told him he was having an argument with the deceased, but he did not know that Berhane was with others and did not intend him to bring any weapon. He did not intend that the deceased would be attacked, only that the deceased would be scared into thinking that he would be. He continued to chase the deceased in order to scare him, but had to stop because the wheel of his bicycle became loose. He saw Lupqi on the pavement near the deceased and saw that Lupqi was holding something he thought might be a knife. He had not seen any knife before that. He then saw Lupqi leaving on his bicycle and assumed the deceased had gone into a house. He did not know of the stabbing until
later. He went to Spain because he was worried about being arrested for something he had not done.
17.
The judge in her summing-up directed the jury appropriately about joint enterprise. She directed them that the convictions of Lupqi, Berhane and Zambon were evidence that each of them was guilty of the murder of the deceased, but that none of their convictions was evidence that the appellant was a party to the murder. She said, in relation to Berhane and Zambon, that the fact that they assisted or encouraged the stabbing of the deceased by Lupqi, and had the necessary intention that the deceased should be caused at least really serious harm, did not prove that the appellant assisted or encouraged the stabbing, or that he had the necessary intention. She emphasised that the jury could only find the appellant guilty if they gave affirmative answers to the questions which she had posed for them in a route to their verdict. No objection is or could be made to these directions.
18.
The grounds of appeal are that the judge's ruling was wrong and the appellant's conviction is unsafe for three reasons. First, the convictions of Lupqi, Zambon and Berhane had no relevance to the issues in the appellant's trial and the judge should therefore not have admitted them in evidence pursuant to section 74 of the 1984 Act. Secondly, that evidence should have been excluded pursuant to section 78 of the Act. Thirdly, the evidence of Zambon's conviction was gratuitous in the sense that it added nothing under section 74, but it caused deep unfairness which it was impossible to address.
19.
In support of these grounds, Mr Ivers points to the appellant's evidence that he did not tell Berhane to bring any weapon and did not know that any of those who arrived was carrying a knife. He then points to the evidence that the appellant and Zambon were shown on the CCTV footage chasing the deceased along the road and then being joined by others. He points out that save for a very brief interval, the appellant and Zambon were together throughout. In those circumstances, submits Mr Ivers, it was not possible to conceive of a scenario in which Zambon knew of the knife but the appellant did not. Moreover, there was no dispute but that there was a joint attack on the deceased. The jury should therefore not have been informed that Zambon had already been convicted of murder. It would have been sufficient for the jury to learn of the convictions of Lupqi (who stabbed the deceased) and Berhane (whom the appellant had called by phone). The evidence of Zambon's conviction added nothing and served only to leave the jury with the impossible task of deciding whether the previous jury had reached a correct verdict about Zambon. Mr Ivers submits that the prosecution wrongly argued for a looser test of admissibility than that established by case law.
20.
As to exclusion of evidence pursuant to section 78, Mr Ivers submits that there was a significant risk that the jury would conclude that the appellant must be guilty of murder simply because others had been convicted of murder, in particular Zambon whose role
was alleged to be very similar to that of the appellant. Mr Ivers renews his submission that the position in relation to the appellant and Zambon was analogous to that of two conspirators in a closed conspiracy. He argues that the admission of Zambon's conviction came very close to "closing off" the issue which the jury had to try in the appellant's case. That evidence should therefore have been ruled inadmissible or excluded pursuant to section 78. More generally, Mr Ivers submits that evidence of the convictions of others did not help the jury to decide the appellant's state of mind or his intentional participation. Any probative value was far outweighed by the risk that the jury would use the evidence in an impermissible way.
21.
Mr Davies QC, representing the prosecution in this court as he did below, submits in response that the convictions of others were properly admissible and that the judge was entitled and correct to refuse to exclude them pursuant to section 78. In any event, the evidence against the appellant was so strong that his conviction was inevitable, even if all or any of the evidence relating to the convictions of others was wrongly admitted.
22.
We are very grateful to counsel for their thorough submissions.
23.
It is convenient first to set out the material terms of section 74(1) and (2) and section 78(1) of the 1984 Act and then to consider what seemed to us to be the most important of the cases cited by counsel.
24.
Section 74 provides in material part as follows:
i.
"(1) In any proceedings the fact that a person other than the accused has been convicted of an offence by or before any court in the United Kingdom or any other Member State or by a Service court outside the United Kingdom, shall be admissible in evidence for the purpose of proving that that person committed that offence, where evidence of his having done so is admissible, whether or not any other evidence of his having committed that offence is given.
ii.
(2) In any proceedings in which by virtue of this section a person other than the accused is proved to have been convicted of an offence by or before any court in the United Kingdom or any other Member State or by a Service court outside the United Kingdom, he shall be taken to have committed that offence unless the contrary is proved."
25.
Section 78 provides in material part as follows:
i.
"(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to
the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."
26.
In
O'Connor
(1987) 85 Cr.App.R 298, the defendant was charged with conspiring with one other person (B) to obtain money by deception from insurers. B pleaded guilty. His plea and conviction were adduced in evidence in the defendant's trial. Given the difficulty for a jury of contemplating that the defendant had not conspired with B, even though B had admitted conspiring with the defendant, the court held that the evidence should have been excluded pursuant to section 78. It went on, however, to uphold the conviction because the evidence against the defendant was in any event overwhelming.
27.
In
Kempster
[1989] 1 WLR 1125, this court approved an observation in the earlier case of
Curry
[1998] Crim.L.R 527 that "where the evidence expressly or by necessary inference imports the complicity of the person on trial it should not be used".
28.
In
S
[2007] EWCA Crim. 2105
, the defendant and T (a prostitute) had been jointly charged with the robbery of T's client and with a firearms offence. T pleaded guilty to both offences. The defendant's case at trial was that he had merely been present when T had stolen money from her client but that she had not used or threatened violence, and had therefore not robbed him, and that there was no gun. The prosecution were permitted to adduce evidence of T's pleas and convictions. The defendant was convicted. On his appeal, this court held that the evidence was wrongly admitted and quashed the convictions. The judgment of the court was given by Hughes LJ (as he then was). At paragraphs 12 and 15, the court held that the convictions were in law admissible and the real question was whether they should have been excluded under section 78.
29.
At paragraph 16 and following, Hughes LJ referred to the line of cases including
O'Connor
and
Kempster
and continued:
i.
"16. We have been taken to the line of cases which begins with R v O'Connor
[1987] 85 Cr App R 98
. They are well known; we need not review all of them. We should, however, refer to the helpful distillation of many of them in R v Kempster
[1990] 90 Cr App R 14
in the judgment of Staughton LJ. That line of cases indicates that section 74 should be sparingly applied. The reason is 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.
ii.
17. We accept, as did the trial judge in this case, that this line of cases was decided before the passing of the Criminal Justice Act 2003. We agree that that new Act does proceed, as the judge in this case said, upon the basis that in some respects the ambit of evidence with which a jury can be trusted is wider than the law formally allowed. That thinking is, we do not doubt, there to be discerned in the bad character provisions of the Criminal Justice Act 2003 and also in the relaxation of the rule against hearsay. It does not, however, follow that the approach of the line of cases to which we have been referred is simply out of date. It remains extremely relevant what the issue is in the case before the trial court. It remains of considerable importance to examine whether the case is one in which the admission of the plea of guilty of a now absent co-defendant would have an unfair effect upon the instant trial by closing off much, or in some cases all, of the issues which the jury is trying.
iii.
18. It remains a proper approach, we are satisfied, that if there is no real question but that the offence was committed by someone and the real issue is whether the present defendant is party to it or not, evidence of pleas of guilty is likely to be perfectly fair, though of course each case depends upon its own facts. However, it also remains true that such evidence may well be unfair if the issues are such that the evidence closes off the issues that the jury has to try."
30.
The court noted that the issues which the jury were trying in that case were whether there had been a robbery, as opposed to a theft, and whether a gun was involved. T's guilty pleas included admissions that the victim had been robbed and that there was a gun. Those were admissions of two important facts which the defendant specifically denied. The court concluded that in those circumstances, admission of the evidence of T's convictions "went a very long way towards closing off the very issues which the jury was trying."
31.
In
Clift and Harrison
[2013] 1 WLR 2093
, each of the appellants had been convicted of causing grievous bodily with intent to a victim who subsequently died. Each was charged with murder and the prosecution was permitted in each case to adduce evidence of the earlier conviction. Dismissing their appeals against conviction of murder, the court rejected an argument that the use of section 74 in such circumstances would prevent a defendant from advancing his defence or prevent a jury from acquitting him. At paragraph 36, Lord Judge, CJ, said:
i.
"There is, in addition, the separate safeguard under section 78, which permits the judge to exclude the evidence. Fairness, of course, runs both ways: the exclusion of admissible evidence may well be unfair to the prosecution. Without seeking to curtail the valuable judicial weapon against unfairness in the criminal justice system embodied in and exemplified by section 78, it would be something of a novel proposition for the exercise of this discretion to enable the court to exclude evidence when its admissibility stems from the enactment of a statutory provision deliberately designed to permit the evidence to be adduced. Accordingly, the evidence of the earlier convictions cannot be excluded on the basis of some nebulous sense of unfairness. If section 78 were used to circumvent a clear statutory provision for no better reason than judicial or academic distaste for it, the discretion would be improperly exercised."
32.
In
Denham and Stansfield
[2016] EWCA Crim. 1048
, a number of men were charged with conspiracies. Some pleaded guilty. Their convictions were adduced in evidence at the trial of others, who did not deny the existence of a conspiracy but disputed being party to it. On appeal, the court concluded that the admission of that evidence did not have the effect of shutting off the defences of those on trial, or of closing off the very issue which the jury had to decide. Simon LJ, giving the judgment of the court, confirmed at paragraph 39 that evidence admissible under section 74 should be excluded if its admission were unfair in the particular circumstances. He observed that, "The admission of prosecution evidence will often raise difficulties for a defence; but it is unfairness to, and not difficulties for, the defence which is the key." He went on to say at paragraph 40 that:
i.
"... the decision whether to admit the evidence, although often described as the exercise of discretion, might better be described as the exercise of a judgment in which a balance has to be struck on the issue of fairness. We mention this because, if it were a pure matter of discretion the basis of challenge to a judge's decision might be unduly confined. Ultimately the decision whether to admit evidence in these circumstances is either right or wrong, although whether the conviction is safe is another matter. Nevertheless, as the judge noted, correctly in our view, such decisions will necessarily be fact sensitive, and the judge will be in a particularly good position to assess the issue of fairness in the context of the dynamics of the trial process."
33.
Finally, in
Shirt
[2018] 4 WLR 154
the defendants were charged with others with conspiracy to defraud by representing that a forged will was genuine. Two of the co-accused pleaded guilty and their convictions were admitted in evidence pursuant to section 74. As the headnote records, the court in dismissing the appeal held:
i.
"... that although the heart of the defendants' defence was that the will was genuine, they also impliedly asserted that because the will was in accordance with the deceased's intentions they lacked dishonesty and that they were not part of any conspiracy; that although the introduction of the evidence of the co-defendants' convictions would detrimentally have impacted on the defendants' ability to assert that the will was genuine, it would not have had a similar impact on the issues as to whether the defendants were knowingly parties to any conspiracy and whether they had been acting dishonestly, which the prosecution also had to prove; that, therefore, the admission of evidence of the convictions did not make the trial proceedings unfair; and that, accordingly, the judge had been right not to exclude the evidence pursuant to section 78."
34.
Having reflected on that case law and on the submissions of counsel, our conclusions are as follows.
35.
We respectfully agree with all that was said by Hughes LJ in the passage which we have quoted from
S
. Subsection 74(1) can only be used where evidence that a person other than the defendant ("X") committed an offence is relevant and admissible. If it does apply, the subsection provides a means by which the fact that X committed his offence may be proved. It makes it unnecessary for the prosecution to prove again that which has already been established against X by his conviction. As the closing words of the subsection make clear, it does not prevent the prosecution from also adducing other evidence that X committed the offence.
36.
The effect of subsection (2) is that the admissibility in evidence of the conviction does not automatically conclude the issue of whether X committed the offence. The defendant can dispute that fact, although he takes on a burden of proof in doing so.
37.
By section 75 of the 1984 Act, the contents of the indictment on which X was convicted are admissible in evidence for the purpose of identifying the facts on which the conviction was based. Again, this provision is without prejudice to the adducing of other admissible evidence for that purpose.
38.
It is therefore always necessary when considering admissibility under section 74 to
analyse the purpose for which it is sought to adduce the fact that X committed his offence and the extent of any facts which it is sought to prove under the ancillary provisions of section 75. The need for a careful and fact-specific analysis of this kind is well illustrated by the decision in
Shirt
. In our view, the references in some of the older cases to "sparing" use of section 74 are to be understood as requiring this careful analysis.
39.
Where evidence of X's conviction is in principle admissible pursuant to section 74 and the real issue is whether that evidence should be excluded pursuant to section 78, the important question will be whether, and if so to what extent, X's conviction imports complicity in the crime on the part of the defendant. As Hughes LJ put it - in words which we think are a convenient test of whether an issue would be closed off by evidence of X's conviction - it is necessary to consider whether X could not or scarcely could be guilty of the offence unless the present defendant were also guilty. This, obviously, will be a fact-specific decision in each case.
O'Connor
provides a stark illustration of circumstances in which a defence may be unfairly closed off by evidence of the conviction of another. But as the decisions in
S
and
Denham and Stansfield
show, there may well be no unfairness in using section 74 in cases involving an allegation of joint enterprise in which there is no substantial issue as to whether the crime was committed and the main issue for the jury is whether the defendant was party to that crime.
40.
When exclusion under section 78 is being considered, we respectfully agree with the court in
Denham and Stansfield
that the task of the court is more appropriately regarded as an exercise of judgement rather than as an exercise of pure discretion.
41.
In the present case, the prosecution alleged that all five of the pursuers were parties to the attack on the deceased and that each of them intended that the deceased would suffer at least really serious injury. It was therefore relevant to the prosecution case to prove that each of the pursuers was guilty of murder. Evidence that each of them had committed murder was in principle admissible, as is implicitly accepted in the submissions on behalf of the appellant. In the case of three of the pursuers, one way of proving they were guilty of murder was by adducing evidence of their respective convictions for murder.
42.
We cannot accept the submission that such evidence was unnecessary because it was not in dispute that the deceased was unlawfully killed and that the killing was a joint crime. The prosecution was entitled to adduce evidence that the killing was murder, and that each of Lupqi, Berhane and Zambon participated in the crime with the intent necessary to make them guilty of murder. No admission of those facts was made by the appellant. The prosecution was not seeking to use the convictions to prove anything more than those facts.
43.
In the circumstances of this case, it is in our view clear that the judge was correct to rule that the evidence of the convictions of Lupqi, Berhane and Zambon was admissible. Her ruling did not depart from or loosen the principles stated in
S
. The real issue, as the
judge said, was whether all or any of that evidence should be excluded pursuant to section 78.
44.
On this issue, we are unable to accept the submission that admission of the evidence of the convictions, or at least of the conviction of Zambon, would close off the issues which the jury had to decide in the appellant's trial. The issues in the trial where whether the jury were sure that the appellant intentionally encouraged or assisted the attack upon the deceased and that he did so with the intention that the deceased would be killed or really seriously injured. The resolution of those issues required the jury to focus upon the acts and intention of the appellant as an individual. The judge made that clear in her directions of law to which, as we have said, there is no challenge, and we can see no basis for the suggestion that the jury could not be expected to follow her directions. They were able to assess the evidence against and for the appellant as an individual, and we reject the suggestion that it was not possible for them to reach a not guilty verdict because to do so would in some way require them to find that the previous jury had reached one or more wrong decisions. In any case in which the prosecution allege a joint enterprise, juries have to consider the acts and intentions of each alleged participant separately, and in that respect the appellant's position was no different from what it would have been if he had stood trial jointly with the others. Evidence that others had committed murder no doubt made the appellant's defence more difficult; but it did not prevent him from advancing his defence, which in essence was that he did not intend any actual violence or any harm to the deceased, and did nothing to assist or encourage a stabbing of which he only became aware subsequently. The jury were not prevented from considering that defence and assessing it dispassionately. We reject the suggested analogy between the present case and a closed conspiracy such as was alleged in
O'Connor
.
45.
Nor can we accept the submission that the evidence of Zambon's conviction should have been excluded, even if the evidence of other convictions was to go before the jury. The judge had to consider the fairness of the trial, not simply the interests of the appellant. It was not in our view necessary in order for there to be a fair trial for one part of the prosecution's admissible evidence to be excluded, and exclusion of it would have been unfair to the prosecution.
46.
For those reasons, we reject the grounds of appeal against conviction and we are satisfied that the conviction is safe. The evidence that three others had committed murder was relevant and admissible against this appellant, and the judge was correct to refuse to exclude that evidence under section 78.
47.
Having reached that conclusion, it is not necessary for us to consider the prosecution's alternative argument that the conviction is safe even if the judge had been wrong not to exclude some or all of the contentious evidence. We do, however, observe that we see considerable force in that argument.
48.
It follows that the appeal against conviction fails and is dismissed.
49.
We turn to the referred application for leave to appeal against sentence. We grant leave.
50.
The appellant, as we have said, was just 18 at the time of the murder. He had previous convictions, none of which was for an offence of violence. His most serious conviction was for causing death by careless driving, for which in May 2015 he was sentenced to a detention and training order for 12 months.
51.
Lupqi had no previous convictions. Zambon had previous convictions including a robbery for which in October 2015 he was sentenced to three years' detention. He was on licence from that sentence at the time of this murder. Berhane's previous convictions included offences of possessing an offensive weapon, and a collection of knives was found at his home when he was arrested for this murder. In addition, Berhane had been sentenced not only for the murder but also for serious offences of kidnap, false imprisonment, blackmail, causing grievous bodily harm and robbery which had been committed on the day after the murder. The seriousness of those subsequent offences is shown by the fact that the concurrent determinate sentences imposed for them included two custodial sentences of 12 years in length. The judge therefore clearly faced a difficult decision as to totality in Berhane's case. It should be noted that there was evidence that Berhane had a low IQ. The judge indicated that if she had been sentencing for the murder alone, the minimum term specified in Berhane's case would have been 17 years.
52.
In sentencing the appellant, the judge referred to the loss suffered by the family of the deceased, which had been described by members of the family in a number of victim personal statements. We note in this regard the poignant feature that the CCTV footage showed that a very short time before the pursuit began, the deceased had been walking with his partner, pushing a pram in which was their two-week-old child. The judge noted that the appellant's flight from the jurisdiction had served to prolong the anguish of the bereaved. She described the murder as a coordinated and brazen attack on the deceased. She was satisfied that the appellant, motivated by a grudge which he bore against the deceased, was the leader of the group. He was the organiser and the instigator. When he called Berhane, it was to arrange for reinforcements and for a knife to be brought to the scene. The deceased knew that he was at risk of attack and was scared. The appellant and others had blocked his route as he tried to escape, trapping him so that he could be stabbed.
53.
The judge took a starting point in accordance with paragraph 5A of schedule 21 to the Criminal Justice Act 2003 of 25 years. She found a number of aggravating features: the appellant's leading role, the degree of planning in summoning reinforcements, the preceding campaign of harassment and violence towards the deceased, the appellant's gang membership, his previous convictions and the fact that the stabbing took place in a crowded public area. She accepted that the evidence did not prove that there had been an intention to kill the deceased. She took into account in the appellant's favour his age
at the time of the murder, noting that he was at the bottom end of the age range of offenders to whom the 25-year minimum term applies. He was, however, an intelligent young man, an experienced criminal who by his own admission was at the time making his living by stealing from others, and he had shown a chilling lack of remorse.
54.
The grounds of appeal against sentence are that the minimum term of 23 years was manifestly excessive in length having regard to the appellant's age and to the sentences imposed on others.
55.
Mr Ivers points out that the judge had to deal with young offenders who had committed the same offence but for whom different starting points were prescribed by Parliament: a minimum term of 25 years in the cases of the appellant and Zambon, but of 12 years in the cases of Lupqi and Berhane. He relies on case law, starting with
Peters
[2005] 2 Cr.App.R (S) 101 and
Attorney General's Reference Nos 143 and 144 of 2006
,
[2007] 1 Cr.App.R (S) 28
, which make clear that in such cases the starting points are not to be applied mechanistically but that some flexibility is required and that there should be no sudden acceleration of a sentence due to age. He also relies on the recent and more general observations of the Lord Chief Justice in
Clarke
[2018] EWCA Crim. 185
to the effect that reaching the age of 18 does not present a cliff edge for the purposes of sentencing, and that full maturity is not conferred on an offender's 18th birthday.
56.
From that basis, Mr Ivers submits that there is in this case an unjustified and unfair disparity in sentencing. He submits that the judge, when considering the issue of totality in Berhane's case, had reduced the term which would have been imposed for the later offences if they had stood alone and not the minimum term for this murder. Mr Ivers points out that Berhane was also a gang member, that he had appeared with the appellant on the YouTube video glorifying gang culture, that he had more serious relevant previous convictions and that it was he who brought to the scene Lupqi and another man, all three of them masked and Lupqi armed with a large knife. Mr Ivers submits that there is no justification for a difference of six years in the minimum term imposed in the appellant's case. He points to the fact that even taking into account the serious offences which were committed on the day after the murder, Berhane's minimum term was two years shorter than in the appellant's case.
57.
Mr Ivers similarly submits that there is no justification for the difference of two years between the minimum terms for Zambon and the appellant. He points out that Zambon is appreciably older, that he had been with the appellant throughout the pursuit and that he was at the time on licence.
58.
This was a callous murder which ended one life and blighted many others. The deceased must have been in great fear as he tried unsuccessfully to escape from his pursuers in the minutes before his death. We think it important to keep in mind the finding of the judge that the appellant was the instigator and organiser of the crime and that but for him, the murder would not have been committed. Having presided over both trials, the judge was in the best position to make that important assessment. The fact that the appellant instigated the crime was a serious aggravating feature which distinguished his case from others.
59.
However, the judge also found that the appellant's intention was to cause really serious injury, not to kill. That is one of the mitigating factors listed in schedule 21 to be reflected in some reduction from the statutory starting point. In addition, in accordance with the case law on which Mr Ivers relies, weight had to be given to the fact that the appellant was only just an adult, and to the need to avoid a mechanistic approach to the widely differing starting points applicable to the appellant at 18 years two months and Berhane at 17 years eight months. There is nothing to suggest that at the time of the murder the appellant was any less mature than others of his age and, having become involved in gang culture at a very young age, he had experience of crime. The judge did not however make any finding that he was particularly mature for his age.
60.
We agree with Mr Ivers that the minimum term of 17 years which the judge indicated in Berhane's case is strikingly shorter than the appellant's sentence. As we have indicated, an important consideration in sentencing Berhane was the need to observe the principle of totality. We are not persuaded by Mr Ivers' submission that that feature of Berhane's case played no part in the judge's decision as to the appropriate minimum term for murder in his case. Even taking that into account, however, we are troubled by the difference in sentence between these two young offenders.
61.
The appellant had of course delayed his trial by many months by his flight from the jurisdiction, and it may well be that at trial he presented a much more mature appearance than he did at the time of the murder. Be that as it may, we have concluded that with all respect to the judge, she fell into error in failing to give sufficient weight to his young age at the time of the offence. The appellant's leading role did not justify a difference of six years between his minimum term and that in Berhane's case. Nor in our view did it justify a difference of two years between his minimum term and that of Zambon, who although not the instigator was active throughout the pursuit and was appreciably further into adulthood. As Mr Ivers submits, a difference in age of 16 months in early adulthood can be significant. We do not understate the aggravating feature of the appellant's leading role, but it has to be balanced against his young age at the time. Balancing the considerations applicable to each of the offenders respectively, we conclude that the judge fell into error in imposing a minimum term in the appellant's case which exceeded that in Zambon's case.
62.
We therefore allow the appeal against sentence to this limited extent: we quash the sentence of custody for life with a minimum term of 23 years and we substitute for it a sentence of custody for life with a minimum term of 21 years.
Epiq Europe Ltd
hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400 Email: [email protected] | {"ConvCourtName": ["Central Criminal Court"], "ConvictPleaDate": ["13 March 2019"], "ConvictOffence": ["murder"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["remand in custody"], "RemandCustodyTime": ["203 days"], "SentCourtName": ["Central Criminal Court"], "Sentence": ["custody for life, with a minimum term of 23 years, less the 203 days he had spent on remand in custody"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["18"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["appellant bore a grudge against the deceased"], "VictimType": ["Nathan Esbrand, the deceased"], "VicNum": ["Nathan Esbrand, the deceased"], "VicSex": ["he"], "VicAgeOffence": ["27"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["CCTV and mobile phone footage", "medical intervention, he sadly died in hospital", "eye witness evidence"], "DefEvidTypeTrial": ["He did not intend that the deceased would be attacked, only that the deceased would be scared"], "PreSentReport": ["data not available"], "AggFactSent": ["joint enterprise", "appellant's leading role"], "MitFactSent": ["young age"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["Dior Lupqi, a youth aged only 15 years 10 months. The appellant was then aged 18 years two months. Others involved included Dhillon Zambon, aged 19 years six months, and John Berhane, aged 17 years eight months."], "AppealAgainst": ["against his conviction"], "AppealGround": ["First, the convictions of Lupqi, Zambon and Berhane had no relevance to the issues in the appellant's trial", "Thirdly, the evidence of Zambon's conviction was gratuitous", "evidence was not admissible or in the alternative that it should be excluded on the grounds of fairness", "The grounds of appeal are that the judge's ruling was wrong and the appellant's conviction is unsafe", "Secondly, that evidence should have been excluded"], "SentGuideWhich": ["section 74 of the Police and Criminal Evidence Act 1984"], "AppealOutcome": ["allow the appeal against sentence to this limited extent: we quash the sentence of custody for life with a minimum term of 23 years and we substitute for it a sentence of custody for life with a minimum term of 21 years", "appeal against conviction fails and is dismissed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["we have concluded that with all respect to the judge, she fell into error in failing to give sufficient weight to his young age"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["evidence that three others had committed murder was relevant and admissible against this appellant, and the judge was correct to refuse to exclude that evidence under section 78."]} | {"ConvCourtName": ["Central Criminal Court"], "ConvictPleaDate": ["2019-03-13"], "ConvictOffence": ["murder"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["203 days"], "SentCourtName": ["Central Criminal Court"], "Sentence": ["custody for life, with a minimum term of 23 years, less the 203 days he had spent on remand in custody"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["18"], "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 Male"], "VicAgeOffence": ["27"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["eye witness evidence", "Digital evidence", "Medical evidence"], "DefEvidTypeTrial": ["Offender admits only to lesser offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["appellant's leading role", "joint enterprise"], "MitFactSent": ["young age"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["3"], "AppealAgainst": ["against his conviction"], "AppealGround": ["Thirdly, the evidence of Zambon's conviction was gratuitous", "Secondly, that evidence should have been excluded", "First, the convictions of Lupqi, Zambon and Berhane had no relevance to the issues in the appellant's trial", "The grounds of appeal are that the judge's ruling was wrong and the appellant's conviction is unsafe", "evidence was not admissible or in the alternative that it should be excluded on the grounds of fairness"], "SentGuideWhich": ["section 74 of the Police and Criminal Evidence Act 1984"], "AppealOutcome": ["Dismissed-Failed-Refused", "Allowed&Sentence Replaced by More Lenient Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["we have concluded that with all respect to the judge, she fell into error in failing to give sufficient weight to his young age"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["evidence that three others had committed murder was relevant and admissible against this appellant, and the judge was correct to refuse to exclude that evidence under section 78."]} | 224 |
Neutral Citation Number:
[2011] EWCA Crim 636
Case No.
2010/06662/A6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Date:
Wednesday 2 March 2011
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Judge
)
MR JUSTICE HENRIQUES
and
MR JUSTICE DAVIS
_______________
ATTORNEY GENERAL'S REFERENCE No. 77 of 2010
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
_______________
R E G I N A
- v -
MITCHELL MOIR
__________________
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4A
Telephone No: 020 404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
__________________
Mr A Edis QC
appeared on behalf of the Attorney General
Mr D A Evans
appeared on behalf of the Offender
__________________
J U D G M E N T
THE LORD CHIEF JUSTICE:
1. This is an application by Her Majesty's Attorney General under
section 36 of the Criminal Justice Act 1988
for leave to refer to this court a sentence which he considers to be unduly lenient. We grant leave.
2. The offender is Mitchell Moir. He is aged 21, having been born on 17 December 1989. He is of good character.
3. On 10 November 2010, at Exeter Crown Court, before Mr Justice Jack and a jury, he was convicted of rape. He was sentenced to three and a half years' detention in a young offender institution. On 12 November 2010, exercising his powers under
section 155 of the Powers of Criminal Courts (Sentencing) Act 2000
, the judge reduced the sentence to two years' detention.
4. In summary, the victim was a young woman with whom the offender had had a sexual relationship in the course of which she became pregnant by him. She had a termination of pregnancy two weeks before the offence was committed. She gave evidence at trial that before that date she had made clear to the offender that as far as she was concerned, although they were still friendly, they were no longer in a sexual relationship. The offender's evidence at trial was that he did not know for sure where he stood. On 6 September 2009 he was staying the night at the victim's house. He asked her whether he could sleep with her. She told him that he should sleep downstairs on the sofa. She then went up to her own bed and fell asleep. While she was asleep the offender went into her bedroom. She was wearing knickers and nothing else. He removed his own clothes and he raped her while she was asleep. She did not wake up; but the following morning she realised that somehow she had had sexual intercourse while she was asleep because her genital area felt sore and she found semen in her vagina.
5. In a little more detail the facts were these. The offender had been separated from his family because of family troubles. They had resolved themselves. The victim was not ready for a permanent commitment but the offender was apparently in love with her. A sexual relationship began between them. At one stage she told him that she was falling in love with him. In early August she discovered that she was pregnant. Initially she wanted to keep the child, and she told the offender that she did. But then she decided to have a termination of pregnancy. She underwent the operation two weeks after she discovered that she was pregnant (and two weeks before she was raped).
6. On the night of the offence, the offender was staying at the victim's house babysitting for her child while she went out for the evening. On her return he asked if he was coming up with her. She said, "No, you know the rules". She went to the bathroom to undress. He went into her room and she found him under the duvet on the floor. She told him to leave. She told him, too, that she would never sleep with him again. There was then a long discussion in the course of which the offender became tearful and he went downstairs apparently to spend the night there.
7. The victim went to sleep in the early hours of the morning. At about 6.10am she was woken by the child in the bedroom next to hers. She called out to the offender to see to the child. She fell asleep again. She woke up at about 9.45am. She felt sore. She found the offender was in her room and she told him, "God, I'm really sore", to which he responded, "Why would that happen?" By then he knew that he had had sexual intercourse with her while she was asleep. She went to the lavatory. She then knew what had happened because she found semen on the lavatory paper.
8. It is worth reciting at this stage how the trial judge believed that the incident had unfolded. In his sentencing remarks on 10 November he said this:
"In the morning, while she asleep, you went into her bedroom to get some clean clothes; you had clothes in a drawer in her bedroom. She was lying on the bed asleep, uncovered, wearing only her knickers. You took advantage of the situation to have sex with her. She did not wake. How long it lasted I do not know, but it was enough to make her sore, and your semen was found on swabs taken from her."
In the judge's view it was something on which the offender had decided on the spur of the moment. The only two further facts to be added are that the act of intercourse took place without the offender using any form of contraception and that he had ejaculated.
9. The victim contacted her mother, who called the police. She sent a series of text messages to the offender asserting that he had had sexual intercourse with her. To begin with he denied it. He then sent a text to the effect that, as a joke, he had "poked" her in the vagina to see if she would wake up. He later texted:
"I'll be honest, I didn't have sex with you but I did go to wake you. Then it was like no, we are not fuck buddies any more. I penetrated for a second and I'm really sorry. I'm panicking like shit. Please don't get me arrested. I won't even talk to you again if you want that."
10. The victim said to the police, and she made it clear throughout -- and it seems to have been the position she maintained from start to finish -- that her complaint was not of being upset; she was angry. She said that she had trusted the offender with her son and she had trusted him in her house.
11. The offender was arrested and interviewed under caution. He denied rape. He asserted that he had penetrated the victim with his penis unintentionally. He said that he had gone upstairs in response to her request that he look in on her son and then wake her up later at nine o'clock. He went to the bathroom to freshen up. He said that he had entered her bedroom in order both to wake her up and to change his underpants after washing because he had clothes in the drawer in the bedroom. He then said, "Um, 'cos of the intimate relationship we had before as, just for a laugh, I went to, um, I went to try and wake her up by having sex with her, but I didn't actually do it". He said that he had moved her knickers to one side as she lay on her back in bed and positioned his body above hers and then, with his penis very close to her vagina, he decided not to penetrate after all, but at the same time, in her sleep, she had pulled him towards her and that as a result his penis had penetrated her vagina. He said that he was unclear about how long penetration had lasted. At one point he said that he had penetrated her for less than thirty seconds before he "just like sort of stopped and tried to wake her up again". At another point he said that penetration had lasted less than a couple of seconds because he had moved immediately backwards so as to stop. He agreed that he had not used a condom. Initially, he denied ejaculation and later said that if semen were to be found inside her vagina, that would be because he sometimes ejaculated prematurely and he could not be sure whether that had happened on this occasion.
12. It is recorded that on 6 and 15 September 2009 he wrote letters of apology to the victim. However, an examination of the evidence shows that he also subsequently wrote one or two unpleasant messages to her on a Facebook print-out.
13. The case proceeded as a trial. It is difficult to see what possible defence there might have been. In truth, as the judge said, the defence advanced was nonsense. Still, that was the offender's decision. He chose not to plead guilty. The jury considered the evidence and decided that the case was proved.
14. There was no pre-sentence report, although a letter from the offender's stepfather was placed before the judge. It contained a number of matters of mitigation and the judge referred to it and considered it.
15. In his sentencing remarks on this aspect of the case, the judge first of all dealt with the facts of the offence. He addressed the suggestion that the offender intended to have sexual intercourse with the victim only if she were agreeable to it. As we have earlier recorded, he said that the suggestion of accidental penetration was nonsense and that it was most unfortunate that the offender could not bring himself to accept the advice that he had been given. In addressing the facts, the judge said that the act was entirely wrong but he doubted that it could properly be described as malevolent. He then went on to say that some mitigation was provided by the fact that the victim was asleep and unaware of what was happening to her, and that it was only when she woke up that she realised what must have occurred. He then described that she had been shocked and angry at what she had found and noted that her distress was very much less than it often is in these cases. That view was confirmed by the demeanour exhibited by the victim during the video which was made to record her evidence the following morning, when she indeed made it plain that she was more angry than upset.
16. The judge went on to identify some of the immediate consequences of the arrest. He believed that the offender had been very severely affected by the case. Twice since his arrest he had tried to take his own life. The judge therefore concluded, the offender now being back at home living with his mother and his stepfather and in permanent employment, that he should pass a sentence at the lower end of the scale. He considered the definitive guideline of the Sentencing Guidelines Council on Sexual Offences and he passed the sentence of three and a half years' detention in a young offender institution.
17. Two days later the case was listed again. The judge said that he had originally described the circumstances of the offence as "unusual". He went on to say that he could have said that they were "very unusual". He made it clear that he did not question the verdict of the jury. On the evidence before them "a guilty verdict was the only verdict open to them if they were to be true to their oath". He reminded himself of the guideline that the sentence of three and a half years' detention was already "below the suggested range". He then returned to address the fact, amply established, that none of the guidelines constitute straitjackets and that judges should have the courage to depart from guidelines where it was right to do so. Addressing the facts of the case he said:
"The medical evidence shows that there was penetration, that there was ejaculation; but as I have thought about the case, the more incredible it seems to me to be that there could have been anything beginning to approach a normal act of intercourse on your part without her waking. By 'normal' I do not of course include 'consensual'. Whatever happened must have been very brief."
18. The judge then examined the guideline which suggests the approach to be taken by sentencing judges where there has been penetration other than by the penis. Having reflected on these matters and considered the offender's culpability he came to the conclusion that no real harm was caused and therefore, in accordance with
section 143
and
153(2)
of the
Criminal Justice Act 2003
, the shortest sentence possible must be passed and the sentence would therefore be one of two years' detention.
19. Much of the reasoning identified in the sentencing remarks, and the further sentencing remarks, is criticised on behalf of the Attorney General. But in the end the real difficulty with the way in which the judge made the observations that he did can be simply expressed: the offender raped the victim. She was not aware of the rape and she was therefore not frightened or fearful; she did not seek to fight off the rapist. The penetration cannot have lasted for a very long time, although it was sufficient in whatever form it took, to have made her sore. But the fact that she was asleep does not constitute mitigation any more than it would have been mitigation if she had been unconscious through drink.
20. There is no scope for much jurisprudence on this issue. It is true that the victim will not remember the precise circumstances of what is always a ghastly experience. But, on the other hand, she was the victim, and she knew perfectly well that she had been the victim of a gross breach of trust. It made her angry. She was fully entitled to be angry at what had happened.
21. In the end a sentencing judge must reflect what actually happened and the circumstances in which the offence of rape took place. In this case the rape occurred just two weeks after the victim's pregnancy by the offender had been terminated; she had made it clear to him, quite unequivocally, that she did not want to have a sexual relationship with him; and in the course of the incident of rape he put her at risk of another pregnancy when she did not want to become pregnant, and certainly did not want to be pregnant by him.
22. We are unpersuaded that any mitigation arises from the fact that the victim was asleep. We are equally unpersuaded that there was any mitigation arising from the fact that her reaction was anger rather than distress. Nor are we able to accept that no harm was caused by this act of rape. The circumstances certainly were unusual. We accept and acknowledge it.
23. However, having reflected on the fact that the circumstances were unusual, in a case which proceeded as a trial during the course of which the victim had to give evidence about what she remembered, with no guilty plea a sentence of three and a half years' detention might very well have been regarded as unduly lenient. A sentence of two years undoubtedly was.
24. The appropriate sentence in this case is a sentence of five years' imprisonment, as it will be, the offender now being 21 years old. We therefore substitute for the sentence of two years' detention in a young offender institution, a sentence of five years' imprisonment.
________________________________ | {"ConvCourtName": ["Exeter Crown Court"], "ConvictPleaDate": ["10 November 2010"], "ConvictOffence": ["rape"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Exeter Crown Court"], "Sentence": ["two years' detention"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["Mitchell Moir."], "OffAgeOffence": ["21"], "OffJobOffence": ["permanent employment"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["the victim was a young woman with whom the offender had had a sexual relationship"], "VictimType": ["woman"], "VicNum": ["woman"], "VicSex": ["woman"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["victim's house"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["The medical evidence shows that there was penetration", "She gave evidence at trial that before that date she had made clear to the offender that as far as she was concerned, although they were still friendly, they were no longer in a sexual relationship."], "DefEvidTypeTrial": ["He denied rape", "The offender's evidence at trial was that he did not know for sure where he stood"], "PreSentReport": ["no pre-sentence report"], "AggFactSent": ["without the offender using any form of contraception", "He chose not to plead guilty", "While she was asleep", "the rape occurred just two weeks after the victim's pregnancy by the offender had been terminated"], "MitFactSent": ["He is of good character"], "VicImpactStatement": ["data not available"], "Appellant": ["This is an application by Her Majesty's Attorney General"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["sentence which he considers to be unduly lenient"], "AppealGround": ["unduly lenient"], "SentGuideWhich": ["Sentencing Guidelines Council on Sexual Offences", "section 155 of the Powers of Criminal Courts (Sentencing) Act 2000,", "section 36 of the Criminal Justice Act 1988"], "AppealOutcome": ["We therefore substitute for the sentence of two years' detention in a young offender institution, a sentence of five years' imprisonment"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": [". He reminded himself of the guideline that the sentence of three and a half years' detention was already \"below the suggested range\". He then returned to address the fact, amply established, that none of the guidelines constitute straitjackets and that judges should have the courage to depart from guidelines where it was right to do so. Addressing the facts of the case he said:\n \n \n \n \"The medical evidence shows that there was penetration, that there was ejaculation; but as I have thought about the case, the more incredible it seems to me to be that there could have been anything beginning to approach a normal act of intercourse on your part without her waking. By 'normal' I do not of course include 'consensual'. Whatever happened must have been very brief.\"\n \n 18. The judge then examined the guideline which suggests the approach to be taken by sentencing judges where there has been penetration other than by the penis. Having reflected on these matters and considered the offender's culpability he came to the conclusion that no real harm was caused and therefore, in accordance with section 143 and 153(2) of the Criminal Justice Act 2003, the shortest sentence possible must be passed and the sentence would therefore be one of two years' detention."], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Exeter Crown Court"], "ConvictPleaDate": ["2010-11-10"], "ConvictOffence": ["rape"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Exeter Crown Court"], "Sentence": ["two years' detention"], "SentServe": ["data not available"], "WhatAncillary": ["Don't know"], "OffSex": ["All Male"], "OffAgeOffence": ["21"], "OffJobOffence": ["Other"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "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": ["medical evidence", "victim testimony"], "DefEvidTypeTrial": ["Offender denies offence", "The offender's evidence at trial was that he did not know for sure where he stood"], "PreSentReport": ["Don't know"], "AggFactSent": ["the rape occurred just two weeks after the victim's pregnancy by the offender had been terminated", "He chose not to plead guilty", "without the offender using any form of contraception", "While she was asleep"], "MitFactSent": ["He is of good character"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Attorney General"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal against sentence"], "AppealGround": ["unduly lenient"], "SentGuideWhich": ["Sentencing Guidelines Council on Sexual Offences", "section 155 of the Powers of Criminal Courts (Sentencing) Act 2000,", "section 36 of the Criminal Justice Act 1988"], "AppealOutcome": ["Allowed&Sentence Replaced by More Excessive Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["Sentencing judge did not refer to relevant sentencing guidelines"], "ReasonDismiss": ["data not available"]} | 587 |
No:
200604632 A4
Neutral Citation Number:
[2006] EWCA Crim 3028
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Wednesday, 15th November 2006
B E F O R E:
LORD JUSTICE GAGE
MR JUSTICE JACK
HIS HONOUR JUDGE WARWICK MCKINNON
(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 94 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 J REES
appeared on behalf of the ATTORNEY GENERAL
MR R H ENGLISH
appeared on behalf of the OFFENDER
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE GAGE: This is a reference by the Attorney General pursuant to
section 36 of the Criminal Justice Act 1988
. In this reference the Attorney General refers to this court a sentence which he regards as unduly lenient.
2.
The offender is Peter Dominic Bell. He is 24 years of age. On 7th June 2006, at the Crown Court at Derby, 12 days before trial, he pleaded guilty to the following offences: count 1, arson being reckless as to whether life is endangered, and count 2, arson with intent to endanger life. On 11th August 2006, after the preparation of a pre-sentence report and a psychiatric report, the offender was sentenced to six years' imprisonment on count 1 and nine years' imprisonment concurrent on count 2. These sentences were not ordered to run consecutively to a sentence of imprisonment which the offender was already serving, namely a sentence of four and-a-half years for an offence of attempted robbery.
3.
The facts are as follows. So far as count 1 is concerned, the offence occurred on 18th September 2003 in the following circumstances. In 2002, he became a member of the Revival Church in High Street, New Mills. At about half past nine in the evening of 18th September 2003, the offender and other members of the church were attending a social event in the main hall on the ground floor of the church. Some members were playing football and the offender was talking to a former girlfriend. At some point the offender left the group and walked down to the basement where the lavatories were situated.
4.
At about quarter to ten in the evening, shortly after his return from the basement area, the fire alarms sounded and the offender opened the doors to the basement at the rear of the church as if to investigate. When the doors were opened, smoke was seen coming up the stairs and the offender alerted the other members of the church to the fire. The offender then grabbed a bowl of water and Steven Hardy, another church member, picked up a fire extinguisher. Both headed for the seat of the fire, which was in the Sunday school room in the basement. That room is directly beneath the main hall. As the offender was about to throw water over the fire, Mr Hardy used the extinguisher to put out the flames. Mr Hardy noted that the offender seemed annoyed at this, as if he wanted recognition for putting out the fire.
5.
It was discovered that the fire had been started by someone setting fire to pieces of paper on a metal filing cabinet. The fire had spread to some plastic hoops that were nearby and the molten plastic had dripped on the floor, igniting the carpet. On his way to extinguish the fire, Mr Hardy had noticed that the basement fire doors were open. These had been closed earlier in the evening and there was no reason for them to have been subsequently opened. The fire damage to the walls, cabinet and carpet cost about £530 to repair.
6.
Shortly after the fire, the Church Minister, Peter Bird, and Christopher Bradley, one of the church elders, spoke to the offender. They were aware that he had a previous conviction for arson and that there had been an incident in August 2003 at a religious festival in Shepton Mallet when the offender purported to have put out a fire on a tent in which people were sleeping. They asked him whether he had started the fire. Initially, he denied having done so. However, during a further meeting in January 2004, the offender admitted that he had started the fire in the basement. It was decided at that stage to offer the offender prayers and support and not to report the matter to the police.
7.
The facts of count 2 are as follows. In November 2003, the offender moved into a flat at 23A High Street, New Mills. The flat was on the ground floor of a converted end-of-terrace property. The flat on the first floor was occupied by Ms Kathleen Weston, who was a member of the same church as the offender. By the time of the offence, she had lived at the address for about 14 years. The only entrance to Ms Weston's flat is the original front door of the house. The entrance to the offender's flat is at the gabled end of the terrace.
8.
In the early hours of 3rd March 2004, Ms Weston was asleep in her bedroom with her boyfriend, Nigel Lloyd. At about 2.45am she woke up on hearing a noise made by her letter box. She thought she could smell smoke and went to investigate. The upstairs hallway was full of thick black smoke and she woke Mr Lloyd. Ms Weston was panic stricken. Mr Lloyd ran downstairs. He saw that flames were at the back of the front door coming from some burning newspapers and a burning blanket, both of which had been pushed through the letterbox. Mr Lloyd ran to the kitchen to get a bowl of water, which he used to put out the newspapers. The blanket remained alight, so he picked it up and threw it out of the front door. As he did so, it flared up and continued to burn on the pavement. In putting out the fire, Mr Lloyd suffered slight burns to his hands.
9.
Within a minute of the fire being discovered, the offender walked around the corner of the building from the direction of his front door. He was fully dressed and appeared perfectly calm. He asked Ms Weston what was happening. When the offender looked into the premises he said, "Oh no! I've got a previous conviction for arson". Ms Weston went back into her flat with her boyfriend. The offender joined them. As they waited for the emergency services to arrive, he offered them support. When the police arrived they discovered that a wine decanter stopper had been jammed in the letterbox of the front door to enable the newspapers and blankets to be pushed through. That was subsequently important in determining that the offender was the one who had set the fire. In due course, when the offender was sentenced for this matter, the judge sentenced him on the basis that he was aware that the front door, which was the seat of the fire, was the only exit from Ms Weston's premises.
10.
The fire had a significant psychological impact upon Ms Weston. She had CCTV cameras subsequently fitted in her flat and the flap to the letterbox screwed down. Her self-esteem was badly affected and she described herself as a nervous wreck. The fire caused about £1,400 worth of damage, which was not covered by insurance.
11.
Upon hearing the news of the fire at Ms Weston's flat, Peter Bird, the Church Minister, contacted the police and told them that the offender had admitted responsibility for the arson at the church. On 8th March 2004, the offender made a telephone call to a police officer at the local police station. In the course of the telephone call, he admitted having caused the fire at the church. On 10th March 2004, he attended the police station and agreed to make a voluntary statement in which he denied committing arson at Ms Weston's flat. On 19th March 2004, the offender was arrested on suspicion of having committed both arson offences. He was interviewed under caution and denied responsibility for either fire. In April 2004, he admitted to a friend that he had caused the fire at Ms Weston's premises. He said that he remembered being in a trance and that he could not help himself.
12.
On 31st August 2005, he was further arrested on suspicion of arson with intent to endanger life. By that time the police were in possession of a statement from the previous occupant of the offender's flat, Daniel Sheehan, who said that he had left the wine decanter stopper and blanket which had been used in the arson at Ms Weston's premises at the flat when he had moved out. When the offender was interviewed on this occasion, he continued to deny causing the fires. He was charged with both offences later on that day. At that point, he was serving a sentence of 54 months' imprisonment for an offence of attempted robbery with a knife which had been imposed on 20th August 2004. That offence had apparently been committed on 21st April 2004, shortly after the offence of arson with intent.
13.
The pre-sentence report before the judge indicated that the offender had continued to deny the offences up until June 2006, when he was overcome by remorse after he saw members of his church community on his television.
14.
He has a number of previous convictions, including the attempted robbery, to which we have already referred. They also include one offence of arson being reckless as to whether life was endangered for which he was sentenced to two years' detention in a Young Offender Institution on 25th September 2000. Very briefly, the facts are as follows. The offence was committed on 30th May 2000 at a hostel called Whaley Hall where the offender was living. At about 11.20pm, he entered the chapel and set fire to the altar tablecloth using a cigarette lighter. He tried to make it look like an accident by knocking over a lit candle. Twenty-seven elderly guests and ten other residents, including children, were present at the relevant time. The smoke alarm was activated and the offender and other staff helped to evacuate the premises.
15.
Before the sentencing judge there were pre-sentence reports, to which we will refer, and a psychiatric report by Dr Bashir. Dr Bashir set out the offender's history. Amongst other things in the report, it is recorded that, at the age of 12, the offender set fire to some hay that he had piled up outside the front door of a racist neighbour and he was duly cautioned by the police. About the same time, the offender was regularly violent to a girl who visited his house. At secondary school, he continued to be disruptive and aggressive. He was banned from science class for setting fire to the gas coming from a gas tap. He set light to a bin outside the headmaster's window at the age of 14 and, on another occasion, he had threatened to damage the school with matches. The author of the report, Dr Bashir, a consultant forensic psychiatrist, recorded that he was satisfied that the criterion of dangerousness under the
Criminal Justice Act 2003
were satisfied.
16.
The pre-sentence report, dated 1st August 2006, made the following points. The author of the report was of the opinion that the offender presented a very high risk of offending and, if given the opportunity, would continue to pose a risk to others through arson whilst in custody. The offender required detailed work to address the underlying motivation for his offending before he could be considered safe for release and the author of the report said that a life sentence would allow the Parole Board to have scrutiny of the level of risk and work completed with the offender in assessing whether he was suitable for release, and when.
17.
The Attorney General identifies the following aggravating features that are present. First, the offender committed two aggravated offences of arson separated by a period of about five and a half months. Secondly, in respect of the offence of arson with intent to endanger life, the offence involved a degree of planning in that the offender brought flammable material to start the fire and a wine stopper to wedge open the letterbox. The offender started the fire in the early hours of the morning, knowing that Ms Weston was probably asleep in her bed and for that reason particularly vulnerable. The appellant set the fire at the front door of the flat knowing it was the only exit available to the occupants. The offence had a significant psychological impact upon Ms Weston. Thirdly, the offender has a history of fire setting and a previous conviction for an offence of arson being reckless as to whether life would be endangered, for which he was sentenced to two years' detention in a Young Offender Institution.
18.
The Attorney General identifies the following mitigating factors that would appear to be present. First, the offender's fire setting behaviour is linked to a personality disorder, which has its roots in the extreme neglect he suffered as a child. Secondly, neither fire resulted in serious injury. Thirdly, the offender pleaded guilty to the offences, albeit at a late stage, and, fourthly, the offender expressed remorse for his offending behaviour.
19.
On behalf of the Attorney General, Mr Rees submits that the sentence was unduly lenient and that the judge ought to have passed a discretionary life sentence. Alternatively, it is submitted that the facts of these offences and the offender's record demonstrate that he is a danger and that the judge ought to have passed a sentence longer than commensurate with the offence under
section 80(2)(b)
of the
Powers of Criminal Courts (Sentencing) Act 2000
.
20.
For the offender, Mr English submits that the totality of the sentence, namely nine years, comes within the bracket for offences of this sort, which he submits is between eight to ten years. He relies on the following factors: no accelerator was used in either offence; both fires were easily extinguished; no serious damage was caused and no serious injury to any person. Further, he relies on the fact that in the end the offender pleaded guilty and was remorseful for what he had done. It is submitted, and we will come to this later in this judgment, that the crimes for which he fell to be sentenced did not come within the first criteria necessary for a discretionary sentence to be passed. In the circumstances, it is submitted on behalf of this offender that the sentence passed by the judge was not unduly lenient.
21.
In our judgment, it is perfectly clear from the offender's history and a report from the forensic psychiatrist that there is a grave risk that this offender, when at liberty, will continue to commit offences of arson. The facts of the instant two offences, to which the offender pleaded guilty, demonstrate that there is a real risk that such further offences will endanger lives. In our judgment, the following passages in Dr Bashir's report are relevant and significant. The report is dated 18th July 2006. At paragraph 15.2, Dr Bashir states:
"... there is strong evidence to suggest that Mr Bell is suffering from a personality disorder as defined in ICD10 (The World Health Organisation Classification of Diseases 1993). Mr Bell showed evidence of emotional flatness, a lack of empathy towards the emotions felt by those around him, a difficulty in recognising and articulating his own emotional state and an episodic difficulty in regulating his violent emotions resulting in periodic self-harm and violence to others. Mr Bell appears to have difficulty in forming and sustaining healthy relationships with others. He has a life long difficulty in relating to authority figures and this is evident by his relationship with school, employers and his own adoptive parents. There is also evidence that Mr Bell has difficulty in terms of his own sexual identity and forming sexual relationships. The need to attain attention and praise are features of his fire setting behaviour and could be indicators of chronic low self-esteem. Mr Bell appears to crave power and control and this is gratified by the adulation he expects to receive in extinguishing fires he himself causes."
At paragraph 5.6 the following appears:
"Mr Bell has a long history of fire-setting from early childhood. He appears to experience irresistible compulsion associated with anxiety which is only abated by the act, to savour the excitement in doing the act and relish being an active participant in the human aftermath. On occasion he imagines he is the hero that saved the day, on others he is an avenger of perceived insult, and then he is the comforter to the innocent victim. The risk of future fire-setting remains very high. The risk has so far spanned nearly 15 years and I would regard the risk as persisting indefinitely unless Mr Bell can address his personality disorder."
22.
In sentencing the offender, the judge plainly had in mind the possibility of passing a discretionary life sentence. He said at page 1F of the sentencing observations:
"The reason you've given for your offending, or the only one I can find in the papers I've read, is that you believe it relieves the stress from which you're suffering at the particular time. Well that explanation and the nature of your previous offending lead me to believe that there's a very high risk of you re-offending in the future. That's confirmed by the fact that in September of 2000 you were convicted of a similar sort of offence whereby you set fire to religious premises knowing that there were a number of vulnerable people on the scene.
I've therefore had to consider whether I should impose a life sentence in your case. Well after some hesitation I have drawn back from that and I'm going to pass a determinate sentence, but it will be of some length because you not only need punishment but you need help and it's hoped that during the currency of the sentence at some stage you'll be transferred to Arnold House."
23.
On behalf of the Attorney General, Mr Rees has referred the court to a number of authorities dealing with the criteria necessary to be satisfied before the court can contemplate a sentence of life imprisonment. We pause to point out that these offences were committed before the coming into force of chapter 5 of the
Criminal Justice Act 2003
, dealing with dangerous offenders. Accordingly, we must, as the judge did, ignore completely the provisions of chapter 5 of that Act. The classic statement of the criteria for a life sentence to be passed is to be found in
R v Hodgson
[1968] 52 Cr.App.R 113. MacKenna J, giving the judgment of the court, said, at page 114:
"When the following conditions are satisfied, a sentence of life imprisonment is in our opinion justified: (1) where the offence or offences are in themselves grave enough to require a very long sentence; (2) where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future; and (3) where if the offences are committed the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence.”
24.
This statement was endorsed in
Attorney General's Reference No.32 of 1996 (Steven Alan Whittaker)
[1997] 1 Cr.App.R(S) 261. Both these two authorities were referred to by Lord Bingham CJ, as he then was, in
R v Chapman
[2000] 1 Cr.App.R(S)282. Having referred to these two cases and others, Lord Bingham said, at page 85 letter B:
"In most of those cases there was no express departure from the criteria laid down in
R v Hodgson
, and certainly no doubt has to our knowledge ever been cast on the authority of that decision, which was very recently re-affirmed in
Attorney General's Reference No 32 of 1996 (R v Whittaker)
. In
Attorney General's Reference No 34 of 1992 (R v Oxford
),
R v Hodgson
was indeed specifically relied on as laying down principles which were described as 'not in dispute'. It is in our judgment plain, as the court has on occasion acknowledged, that there is an interrelationship between the gravity of the offence before the court, the likelihood of further offending, and the gravity of further offending should such occur. The more likely it is that an offender will offend again, and the more grave such offending is likely to be if it does occur, the less emphasis the court may lay on the gravity of the original offence. There is, however, in our judgment no ground for doubting the indispensability of the first condition laid down for imposition of an indeterminate life sentence in
R v Hodgson
, re-affirmed, as we say, in the more recent
Attorney General's Reference No 32 of 1996 (R v Whittaker)
. It moreover seems to this court to be wrong in principle to water down that condition since a sentence of life imprisonment is now the most severe sentence that the court can impose, and it is not in our judgment one which should ever be imposed unless the circumstances are such as to call for a severe sentence based on the offence which the offender has committed."
25.
As Mr English, on behalf of the offender, pointed out, the facts of that case were not dissimilar to this one, save that in the instant case the judge had to sentence this offender for two offences, not one as in
Chapman
. There also in our judgment was a significant difference in that in
Chapman
the appellant pleaded guilty to an offence of reckless arson and not to arson to endanger life. In
Chapman
, Lord Bingham described the problem faced by the judge as "extraordinarily difficult". The same can be said in this case. In that case, the court described the one offence as not being of such gravity as to satisfy the criteria laid down in
Hodgson
, although, as this was not expressly stated by the court, it appears to be on the basis that the offence itself was not of sufficient gravity to merit a life sentence.
26.
We are left in no doubt that the sentence passed by the judge was not only lenient but unduly lenient and we give leave. If the judge was to have passed a determinate sentence rather than life imprisonment, in our judgment he ought to have exercised his powers under
section 80(2)(b)
of the
Powers of Criminal Courts (Sentencing) Act 2000
. It seems to us that he ought to have passed a sentence in total which was longer than the sentence that he actually passed, notwithstanding the late guilty pleas. But we further are of the opinion that he should have passed a life sentence of imprisonment. The offender's history in our judgment demonstrates that he is a person of unstable character who is likely to commit further offences in the future. We also conclude that these offences are likely to be so serious that there is a grave risk that others may be severely injured.
27.
The aspect of this reference that has caused us the most difficulty is in deciding whether the offences of arson to which the offender pleaded guilty satisfied the requirement of being in themselves grave enough to require a very long sentence. We can understand the judge's reluctance to pass a life sentence but we conclude that he ought to have done so. These were, on any view, two very serious offences. It must not be forgotten that the offender pleaded guilty to count 2, an offence of arson with intent to endanger life. In our judgment, in all the circumstances, a life sentence was the only appropriate sentence to pass.
28.
Having so concluded, what we propose to do is to substitute such a sentence on each count in place of the sentence of six years and nine years passed concurrently by the judge. Taking into account the principle of double jeopardy, we do not increase the period of time which the offender must serve before being eligible for parole. We base that on the nine years set by the judge. That will be in the usual way halved to four years, six months before which the applicant will be ineligible for parole. We now seek the guidance of counsel as to when the sentence should start and whether any time served should count.
29.
You did say something in your submissions, Mr Rees, about that. It should, should it not, date from the date of sentence?
30.
MR REES: My Lord, yes. Given that it is now a sentence of life imprisonment, clearly the public are afforded sufficient protection and it ought to be that the time that he has served since the imposition of sentence should count. So, in my respectful submission, the sentences should date from the sentencing date. But the time he has spent in remand in respect of these offences, prior to the sentencing date, should not count because he was currently serving a sentence of imprisonment for attempted robbery.
31.
LORD JUSTICE GAGE: So in other words it will run from the date that he was sentenced in August 2006, this year?
32.
MR REES: My Lord, yes, and it will be four and-a-half years not minus any other period.
33.
LORD JUSTICE GAGE: No. Four and-a-half years not minus any period. Mr English?
34.
MR ENGLISH: I have nothing to add, my Lord.
35.
LORD JUSTICE GAGE: No. Thank you both very much for your very helpful submissions. | {"ConvCourtName": ["Crown Court at Derby"], "ConvictPleaDate": ["7th June 2006,"], "ConvictOffence": ["arson with intent to endanger life", "arson being reckless as to whether life is endangered"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["12 days before trial"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Derby"], "Sentence": ["six years' imprisonment on count 1 and nine years' imprisonment concurrent on count 2"], "SentServe": ["concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["24"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["flat at 23A High Street, New Mills"], "OffMentalOffence": ["personality disorder"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["members of the church"], "VictimType": ["other members of the church"], "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": ["consultant forensic psychiatrist", "CCTV", "police"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["very high risk of offending"], "AggFactSent": ["significant psychological impact", "degree of planning", "vulnerable", "separated by a period of about five and a half months", "already serving", "previous convictions"], "MitFactSent": ["offender pleaded guilty", "neither fire resulted in serious injury", "personality disorder", "offender expressed remorse"], "VicImpactStatement": ["data not available"], "Appellant": ["Attorney General"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["sentence which he regards as unduly lenient."], "AppealGround": ["unduly lenient"], "SentGuideWhich": ["Criminal Justice Act 2003", "section 36 of the Criminal Justice Act 1988", "80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000.", "totality"], "AppealOutcome": ["substitute such a sentence on each count in place of the sentence of six years and nine years passed concurrently"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["The offender's history in our judgment demonstrates that he is a person of unstable character who is likely to commit further offences in the future. We also conclude that these offences are likely to be so serious that there is a grave risk"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Crown Court At Derby"], "ConvictPleaDate": ["2006-06-07"], "ConvictOffence": ["arson with intent to endanger life", "arson being reckless as to whether life is endangered"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["12 days before trial"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Derby"], "Sentence": ["six years' imprisonment on count 1 and nine years' imprisonment concurrent on count 2"], "SentServe": ["Concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["24"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know", "Had mental health problems"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individuals"], "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": ["consultant forensic psychiatrist", "CCTV", "Police evidence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["High risk of reoffending"], "AggFactSent": ["vulnerable", "degree of planning", "Prolonged", "previous convictions", "significant psychological impact", "already serving"], "MitFactSent": ["offender expressed remorse", "offender pleaded guilty", "neither fire resulted in serious injury", "personality disorder"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Attorney General"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Sentence (is unduly lenient)"], "AppealGround": ["unduly lenient"], "SentGuideWhich": ["totality", "80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000.", "Criminal Justice Act 2003", "section 36 of the Criminal Justice Act 1988"], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["The offender's history in our judgment demonstrates that he is a person of unstable character who is likely to commit further offences in the future. We also conclude that these offences are likely to be so serious that there is a grave risk"], "ReasonDismiss": ["data not available"]} | 488 |
Neutral Citation Number:
[2022] EWCA Crim 288
Case Nos: 201903008 B5, 201903010 B5, 202002337 B5 & 202002733 B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM ISLEWORTH CROWN COURT
His Honour Judge JA Denniss QC
Ind. No. T20171258
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
08/03/2022
Before :
LORD JUSTICE DINGEMANS
MR JUSTICE HILLIARD
and
HIS HONOUR JUDGE ALTHAM
(Recorder of Preston)
- - - - - - - - - - - - - - - - - - - - -
Between :
El Mehdi Zeroual
Applicant
- and -
Regina
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Ms Csengeri
(instructed by
The Registrar for Criminal Appeals
) for the
Applicant
Mr Watkinson
(instructed by
the
London Borough of Hammersmith & Fulham
) for the
Respondent
Hearing date : 1 March 2022
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
Lord Justice Dingemans :
Introduction
1.
This renewed application for an extension of time of 209 days and for permission to appeal against conviction, which was referred to the full Court after a hearing before the Court on 21 October 2021 (Spencer J and His Honour Judge Menary QC, Recorder of Liverpool) (“the referring court”) raises an issue about whether a trial judge was required, in this particular case, to give directions to the jury about the legal differences between a lodger and a sub-tenant. The referring court found that this was an arguable ground of appeal, but they did not grant permission to appeal at that stage because the applicant also needs a substantial extension of time.
2.
The applicant is a 58 year old man who was of previous good character and working as a civil servant before his conviction and sentence. In November 1996 the applicant became the tenant of a one bedroom flat in Blythe Road, London W14 (“the flat”) owned by the London Borough of Hammersmith and Fulham (“the council”). The tenancy agreement was governed by, among other statutes, the Housing Act 1985.
3.
The applicant was convicted on 18 December 2018, following a trial in the Crown Court at Isleworth (before His Honour Judge JA Denniss QC and a jury) of two counts of fraud, contrary to section 1 of the Fraud Act 2006, on a three count indictment. The conviction on count one was for dishonestly failing to disclose information that he was under a legal duty to disclose “namely that he had sub-let part of the premises” of the flat in breach of these conditions.
4.
The conviction on count three was for dishonestly failing to disclose that the applicant’s wife was living with him between 2010 and 2013 (before their later separation), which meant that he was no longer eligible for the single person’s discount in respect of council tax payable for the flat. The applicant was acquitted on count two which alleged that he had dishonestly failed to disclose a change in circumstances in relation to his application to purchase the flat under the Right to Buy.
5.
The applicant was sentenced on 23 January 2019 to 18 months imprisonment suspended for 18 months, with a 30 day Rehabilitation Activity requirement. By a judgment and order dated 6 July 2020 and a judgment dated 12 July 2020, the applicant was ordered to pay £89,074 (of which £17,500 was to be paid as compensation to the council) pursuant to the Proceeds of Crime Act 2002.
6.
In addition the applicant has applied to vary the grounds of appeal to raise two new grounds of appeal against conviction in relation to the applicant’s conviction on count three of the indictment. These have been drafted by Ms Csengeri after her instruction by the Registrar of Criminal Appeals. Ms Csengeri did not appear at the trial below. This application to vary raises issues identified in
R v James
[2018] EWCA Crim 285
;
[2018] 1 WLR 2749
and the Criminal Procedure Rules at 36.14(5).
7.
Further, although the referring court could not detect any arguable grounds of appeal in relation to renewed applications for permission to appeal against sentence, for permission to appeal against the confiscation order and for permission to appeal against a costs order, these were formally referred to this court in case issues of sentence, confiscation amounts and costs needed to be reviewed in the light of any decision on the renewed application for permission to appeal against conviction.
8.
We are very grateful for the helpful written and oral submissions made by Ms Csengeri on behalf of the applicant and by Mr Watkinson on behalf of the respondent.
The extension of time
9.
It was apparent that the applicant’s conviction has had very serious consequences for him. He has been evicted from the flat, which he had intended to purchase under the right to buy scheme. He has lost his job with the civil service. His family circumstances have deteriorated. His savings have been confiscated. The applicant has suffered mental health problems being severe reactive depression, requiring treatment. As a result he had not been in a position to take forward his appeal after receiving negative advice from his former legal representatives. It was submitted on behalf of the applicant that these reasons justified an extension of time for seeking permission to appeal.
10.
It became common ground at the hearing that if this Court considered that any of the grounds of appeal against conviction should succeed it would be in the interests of justice to grant an extension of time and to quash the relevant conviction. If, however, the court considered that any grounds of appeal, though arguable, should not succeed then it would be appropriate to refuse an extension of time. We therefore turn to the main ground of appeal on count one, which relates to whether there was a need to direct the jury on the difference between a lodger and a sub-tenant. In order to consider this ground of appeal it is necessary to: set out some relevant principles of law about the difference between a lodger and sub-tenant; identify what were the respective cases for the prosecution and defence at trial; and set out some of the evidence at trial.
Some relevant principles of landlord and tenant law
11.
The relevant principles of law were not in dispute. The applicant had a secure tenancy from the council which was governed by the Housing Act 1985. Section 93 of the Housing Act 1985 provides that it was a term of such a tenancy that the tenant “(a) may allow any persons to reside as lodgers in the dwelling-house but (b) will not, without the written consent of the landlord, sublet or part with possession of part of the dwelling-house”. Local authority housing is limited and these provisions help to ensure that the stock of housing is used by those needing it, but also that tenants have the right to have lodgers (although there was a contractual duty to notify the council about such lodgers).
12.
In the course of the submissions before us, reference was made to various authorities including
Stening v Abrahams
[1931] 1 Ch 470
at 473,
Lam Kee Ying v Lam Shes Tong
[1975] AC 247
at 256 and
Street v Mountford
[1985] AC 809
. It is established law that unless the occupier of premises has exclusive possession, they will not have a tenancy. On the other hand whatever label is attached to the agreement, if exclusive possession of the property has been granted to an occupier, a tenancy of some sort will have been created.
13.
This means that for the purposes of this appeal the main difference between “sub-letting”, which involves the grant of a form of tenancy, and “lodging”, which involves the grant of a licence to live in premises, is whether the occupier of the flat had exclusive possession. If a person has exclusive possession then they will, regardless of what terms are used to describe the relationship, be a tenant, and if there is no exclusive possession then the person will be a licensee or lodger. This analysis is consistent with the approach taken in
R v Adedeji
[2019] EWCA Civ 804
;
[2019] 4 WLR 135
.
14.
As already noted the applicant had the right to have lodgers, albeit there was a notification requirement under the terms of his lease. In practical terms if the applicant was living at the flat when permitting others to live at the flat, then he would not have granted exclusive possession to those occupiers, regardless of whether the occupiers were described as sub-tenants or lodgers. This meant that the applicant could not be guilty of count one which alleged that he had parted with possession of part of the flat to a sub-tenant. If, however, the applicant had moved out and charged someone a sum per calendar month, whether described as rent or a licence fee, for the right to occupy either the main room or the bedroom of the flat, then in the absence of any genuine reservation of rights to enter and control that room, exclusive possession would have been granted and a sub-tenancy granted.
The respective cases on count one
15.
The prosecution case on count one appears most clearly from an opening note dated 4 December 2018. In that opening note it was made clear that the prosecution case was that the applicant had moved out of the flat and sub-let it to various persons receiving payments in cash which he had then banked. At times he had sub-let the bedroom to one person and the main room as another bedroom to another person. He had placed advertisements for the flat which made it clear that he was not living there. The prosecution stated that they would call witnesses who had lived at the flat either alone or with other persons in the other room who were not the applicant.
16.
At paragraph 12 of the note it was stated: “there can be no doubt that the defendant was well aware of his obligations in relation [to] 7 Elgar Court, sub-letting and lodgers. The difference between sub-letting, and having a lodger, as the defendant well knew, is that to have a lodger you, as the tenant, have to actually be living in the property.” Count one was addressed in paragraphs 13-15 of the note. It is relevant (to a second ground of appeal in relation to count one) to note that the note recorded “… it is not in dispute that if the defendant did in fact sub-let part of 7 Elgar Court then he was under a duty to disclose it to [the council], it is not in dispute that no such disclosure was ever made, it is not in dispute that the defendant would have intended to make a gain for himself, and it is not in dispute that this behaviour would be dishonest.”
17.
Mr Watkinson confirmed in written and oral submissions that the prosecution case had been reduced to the following proposition, whether “the prosecution had proved to the jury so that they were sure that the [applicant] was not living at the premises when the `lodgers’ were, then they could not be `lodgers’, and they would be sub-tenants”.
18.
The fact that this was how the prosecution case was understood at trial part appears from the note prepared by counsel who appeared on behalf of the applicant at trial. This note was produced because earlier grounds of appeal produced by the applicant had criticised counsel and a waiver of privilege had been provided to counsel (it is only fair to record that these complaints were found by the referring court to be unarguable). Trial counsel noted that the prosecution case was that the applicant had vacated the premises on occasions when tenants were there, and that the jury needed to be sure that he had vacated the premises during the periods of occupation in order to find him guilty of count one. The referring court considered that trial counsel’s reference to count one in the note was a mistake for count two. Now, however, that we have more information about the way that the prosecution case was put at trial, it is apparent that this was an accurate reference to count one.
19.
The case for the applicant was that he had always lived at the flat. In the defence case statement it was said “I have resided at 7 Elgar Court since 11
th
November 1996 … During my residence at 7 Elgar Court, I have had a number of lodgers reside with me for a short period. Mr Xue and Mr Thalmeier both resided with me for a short period. They did not have exclusive right to the all or part of the flat because they shared the bathroom, kitchen, communal hall with me and all my facilities … I advertised 7 Elgar Court on the internet to look for lodgers not for sub-tenants. At the same time I also placed adverts for [a friend]’s apartment in Shepherd’s Bush”. The applicant’s case was that there was no sub-letting because he was always living at the flat.
The evidence at trial
20.
The applicant signed an original tenancy agreement with the council in 1996 and a further tenancy agreement for the flat in November 2004. The terms were changed in March 2013. So far as is material relevant conditions of the applicant’s tenancy agreement were: “2.5 Residence To occupy the property as his/her principal home …”; “2.7 Sub-letting To obtain the council’s permission before sub-letting or parting with possession of part of the premises”; and “2.8 To inform the council when lodgers are taken in”.
21.
The flat had a bedroom, lounge, kitchen and bathroom. In December 1999 Council Officers had visited the applicant after it had been suspected that he was charging people for staying at the property. This was denied by the applicant.
22.
In relation to count one it was alleged that between February 2014 and March 2016 the applicant placed nine advertisements on the Gumtree website, targeted at overseas visitors and students, for the apparent rental of the flat. Six different email addresses were used to post the advertisements and the advertisements themselves provided contact mobile phone numbers which belonged, in some cases, to the applicant and, in others, to his ex-wife. Between October 2014 and February 2016 he posted a further nine advertisements relating to the property on another website, spareroom.co.uk. Each advertisement was for rental of the main living room in the flat and one advertisement specifically showed that a student was living in the small bedroom and the living room was available for separate rental.
23.
In April 2016 two Housing Officers visited the property. They found Mahmoud Tariq and Yunis Ahmed living at the property. Two days later the applicant submitted for the first time an Additional Occupants Form requesting to have a lodger.
24.
There was banking evidence between May 2014 and April 2016 which showed that the applicant regularly deposited large amounts of cash and also received bank transfers, some of which explicitly referred to ‘rent’ or ‘flat fee’. The applicant was employed at the time as a civil servant and was not paid in cash. The cash deposits ceased in late April 2016 after the visit to the flat by the housing officers. The prosecution conducted a forensic analysis of photographs exhibited by the applicant showing his children at the flat and concluded that the periods for when there existed no photos coincided with periods when substantial monies were being deposited into his account.
25.
An Equifax report, obtained by the prosecution, which traced any debt footprint that had arisen from the occupation of a property, contained numerous names of people living at the address. Most of the names appeared to be Japanese but Mahmoud Tariq’s name also appeared on the list.
26.
There were witnesses who had lived at the flat. Rui Xue said that he answered a Gumtree advertisement and rented the living room at the flat from May 2014 and paid the applicant £1,500 per month. He had originally been intending to stay until July but he had been asked to leave. He said that a Korean student lived in the other room and the applicant did not live at the property.
27.
Dominic Thalmeier made a statement which was admitted as hearsay evidence as he was overseas, and stated that he stayed at the flat for a month in April to May 2015. He paid the applicant £1,800. There was another person, who was not the applicant, living at the flat when he arrived and during the first week that he was there.
28.
Bibier Gungor and Roxanne Gani-Kasmani, the two housing officers who visited the applicant’s flat, gave evidence, admitted as hearsay evidence, as to what the two occupants said to them. Mahmoud Tariq said that he had been living in the flat for five to six months and paid the applicant £750 per calendar month in cash. Yunis Ahmed said he had just moved in to the flat having paid the applicant £250. He produced a “short-stay agreement” document. They both confirmed that the applicant did not live there.
29.
The housing officers reported overhearing a phone conversation between Mr Ahmed and the applicant during which the latter was heard to say to Mr Ahmed that he should tell the officers that he was staying either as a lodger or as a friend. When the officers returned to the flat the same afternoon, the applicant was present but would not grant them immediate entry and asked them to wait. It became apparent that the applicant had changed the layout so that the living room had been converted back into just that, with Mr Ahmed’s clothes and personal items having been removed.
30.
So far as count three was concerned, between February 2010 and December 2013 a Single Persons Discount “(SPD)” of 25% (amounting to £808) was applied to the applicant’s Council Tax bill. The claim forms which had to be completed to obtain the discount included an annual requirement to notify the council if the claimant’s circumstances changed. The applicant admitted in interview that he had failed to inform the Council Tax department that his wife was living with him during this period and thus he was no longer eligible for the SPD. The monies wrongly rebated were subsequently paid back to the council by the applicant.
31.
The applicant gave evidence on his own behalf that he was involved in a commercial deal with a female friend who owned a flat in Shepherd’s Bush. He would pay her £1,000 per calendar month and rent her flat on her behalf, taking any profit he made on the rental. He used the details of his own flat in the internet advertisements so as to attract tenants for her flat in Shepherd’s Bush. He had failed to mention these facts in interview because that interview had lasted 2 ½ hours and he was exhausted.
32.
He was always living at the flat. Mr Tariq and Mr Ahmed were sharing the bedroom whilst he was living at the flat. He had been staying with a girlfriend the evening before the officers’ visit and Mr Ahmed had taken the liberty of sleeping in the living room. The written agreement that Mr Ahmed provided to the officers was simply drawn up to assist him at his place of work. He was merely tidying up the flat, and not re-converting the lounge, when the officers returned and photos showed that many of his own personal effects were already in the lounge during the morning visit.
33.
The applicant produced photos of his children living at the flat. The payments into his account were both from money he was receiving in relation to the rental of his friend’s Shepherd’s Bush flat and money from his brother who was purchasing a property from him in Morocco.
34.
Many of the people whose names appeared in the Equifax report were girlfriends or friends who he had assisted by providing a residential address so that they could open bank accounts. The applicant also produced invoices from Amazon which gave the flat as his billing address and evidence from a boiler maintenance team as to their visits to the flat. Susan Batchelor, Jimmy Tirea, and Majic Shekarstan, all of whom lived in the same block as the applicant, and Abdellah Benali, a friend, gave evidence as to the fact that they regularly saw the applicant at Elgar Court.
35.
In respect of Count 3 the applicant said that he had made an application to the Council to upgrade his accommodation from a one-bedroom to a two-bedroom property because his wife was pregnant. That amounted to sufficient notification that his wife was living with him. He had not realised that it was necessary for him to specifically inform the Council Tax Department. He was not acting dishonestly.
The relevant directions on count one in the summing up
36.
The judge shared drafts of written directions headed “jury core legal directions” that he proposed to give to the jury. There was no objection from counsel to the terms of the draft and this was incorporated into the summing up.
37.
In the summing up the judge gave conventional directions on the functions of the judge and jury, the burden and standard of proof before turning to the elements of the offence.
38.
In the core legal directions the judge said that all three counts involved common ingredients being: “(1) the defendant acted dishonestly and with an intent to make a gain for himself or another. I do not need to define those concepts. (2) the defendant failed to disclose to the [council] information that he was under a legal duty to disclose.” The directions continued “count 1 alleges a legal duty to disclose that he had sublet part of the premises at flat 7 Elgar Court. This duty arises by reason of the obligations he entered into in his tenancy agreement. The prosecution allege that he repeatedly sublet part of the premises, whether he used the expression lodger or paying guest, during the period 31
st
of May 2014 to 29 April 2016.” These directions were read out as part of the summing up.
39.
The judge then summarised relevant parts of the evidence. The judge referred to evidence from the advertisements showing that a room was being advertised and a student was living in the bedroom, with the applicant’s explanation that these referred to his friend’s flat. The judge referred to the evidence of the occupiers of the flat who referred to another student or another person, not the applicant, living there, with the applicant’s evidence that one of the occupiers had an argument with the applicant and was not telling the truth. The judge referred to the evidence from the housing officers to the effect that Mr Ahmed and Mr Tariq confirmed that they were both living at the flat, together with the applicant’s explanation that they were both in the front room, he had been away for a night with his girlfriend, and one of them had taken the liberty of sleeping in his bed. The judge referred to the case on behalf of the applicant. The judge said “and throughout the case, the defendant has maintained that he was living at the premises …”.
40.
There was one part of the summing up where the judge said “insofar as the defendant has stated that these people were lodgers, the prosecution – sorry, the prosecution submit that despite what he must have known about his obligation, he never in fact declared any of these lodgers’ existence and occupation in the premises. The prosecution again submit that it is evidence of sub-letting or having lodgers on a commercial basis.”
Sufficient directions on count one
41.
As already noted the ground of appeal on count one focuses on the directions given in relation to sub-letting and whether they were sufficient to deal with the issue of exclusive possession and whether any persons staying in the flat were lodgers.
42.
Ms Csengeri submitted that the Judge did not direct the jury on the relevant law with respect to count one. The jury were not directed as to what was required for them to reach the conclusion that the applicant had failed to disclose information that he was under a legal duty to disclose, namely, that he had sub-let the property. This was because the Judge provided no directions as to the legal meaning of “sub-let”. The effect was a repeated failure to distinguish between a sub-tenant on the one hand, and a lodger or paying guest on the other hand. The jury might have convicted the applicant in circumstances when in fact he had not parted with exclusive possession of the flat. Ms Csengeri highlighted the passage set out in paragraph 40 above, and submitted that it showed that the judge had given no relevant assistance to the jury.
43.
Mr Watkinson submitted that the directions given to the jury were adequate. It had become clear in the preparations for the trial that there was a binary choice, either the prosecution had proved the applicant had moved out and sub-let the flat to others, or the applicant was living there at all times. There was, in the circumstances of this particular case, no middle ground where the applicant might have been convicted on the basis that he was still living at the flat, and had then let or licensed the other room at the flat to paying occupiers. In these circumstances the passage of the summing up at paragraph 40 above was not wrong, although it might have been more clearly expressed. This is because everyone was clear that the prosecution case was that the applicant was not living in the flat, and whatever he called the persons who he had let into occupation (sub-tenants or lodgers) they had exclusive possession because he was not there.
44.
It is established law that any summing up must be tailored to the circumstances of the particular case. We accept that in this case the jury were presented with a case where the prosecution alleged that the applicant had moved out, and had sub-let the flat to others for monetary payment. In this case this meant that the person living at the flat would have had exclusive possession. The applicant’s defence was that he lived there throughout and anyone else who stayed there had been there with him so he had not sub-let the flat. It is plain that interesting questions of landlord and tenant law could have arisen if the prosecution case was that the applicant had continued to live in the bedroom at the flat and let (or licensed) the main room, or had lived in the main room and let (or licensed) the bedroom. That, however, was not the prosecution case and it was not the defence case.
45.
In these circumstances it was sufficient for the judge to direct the jury in terms “the prosecution allege that he repeatedly sub-let part of the premises whether he used the expression `lodger’ or `paying guest’ during the relevant period from 31 May 2014 to 29 April 2016”, and to remind the jury that the applicant’s defence was that he “has maintained that he was living at the premises”. That said we consider that it would have been helpful to have told the jury in terms that if the applicant was living at the flat then there could be no question of sub-letting because any other persons occupying the flat would not have had exclusive possession.
46.
We have considered a further point made by Ms Csengeri to the effect that even if the applicant was not living at the flat, then he may still have retained some element of possession of the flat because there were no locks on the individual room doors, and the judge should have addressed that. We do not accept that the judge was wrong in this respect. This is because there was no evidence as to the terms of occupation to suggest that there was not exclusive possession of the flat once the applicant’s evidence that he was living there had been (as it must have been) rejected by the jury. The evidence from the occupiers showed that they had been provided with a room for a sum payable each calendar month. There was no evidence to show that the applicant was providing services to those living in the flat, or retained some right to come into the flat, and the evidence was consistent only with those occupiers having exclusive possession of their rooms, compare
Street v Mountford
.
47.
We have noted that there was an acquittal on count two. That count alleged a failure to disclose information relating to a change in his circumstances, namely that the flat was no longer “his principal or only residence”. The judge directed the jury that they had to be sure that the applicant no longer “had the intention to use that property as his only or principal residence …”. In circumstances where there was evidence that the applicant was intending to buy the flat under the right to buy provisions, it is apparent that the jury could have been sure that the applicant was sub-letting the flat and had moved out on occasions for that purpose, but had still maintained the intention to use the flat as his principal residence. This acquittal does not therefore take the appeal in relation to count one any further.
48.
Ms Csengeri raised a second ground of appeal in relation to count one. We will address that ground even though it is not clear to us that it was a ground of appeal which the referring court considered arguable. This second ground of appeal is that the Judge failed to properly direct the jury as to the legal tests: for dishonesty; as to the meaning of intent to make a gain for oneself or another; and of the need for there to be a causative link between the two. It is correct to say that the judge simply referred to dishonesty and gain, and did not further define the terms. In our judgment this was sufficient in the circumstances of this case. As the prosecution’s opening note recorded, it was common ground that if the applicant had sub-let the flat, he was intending to make a gain and he was acting dishonestly. This was not particularly surprising in circumstances where, if they were to find the applicant guilty, the jury would have had to be sure that the applicant had moved out of the flat and sub-let it to others, and lied to the housing officers about who was present at the flat when this was discovered.
49.
For all these reasons the judge’s directions on count one were sufficient. Further we are sure that the conviction of the applicant on count one was safe. There was compelling evidence that the applicant had moved out of the flat and sub-let the bedroom and the main room to other persons.
The appeal in relation to count three
50.
The applicant has, since the matter was referred to the full court, sought to raise new grounds of appeal which relate to the conviction on count three. As was made clear in
R v James
as a general rule all the grounds of appeal on which an applicant wishes to advance should be lodged with the notice of appeal. It is important not to bypass the filter mechanism of the single judge. If new grounds are raised at a late stage applicants have to address the reasons why the grounds are raised late. Ms Csengeri has pointed out that the applicant did not have the benefit of legal advice after receiving negative advice on appeal before she had been instructed on the applicant’s behalf by the Registrar.
51.
The proposed grounds of appeal are: (1) the Judge failed to properly direct the jury as to the elements required to convict the applicant on count three; and (2) count three should not have been left to the jury, because the failure of the applicant to disclose information charged under this count was not a failure to disclose information which he was under a legal duty to disclose for the purposes of the Fraud Act 2006.
52.
The answer to the first proposed ground of appeal part mirrors the answer to the second ground of appeal in relation to count one. The judge’s directions were sufficient in this case. There was no issue about an intended gain for count three. The term dishonesty did not require any further explanation from the judge. The judge specifically reminded the jury of some of the applicant’s evidence about contact with the council which was “highly relevant”, as the judge put it, to their determination of the issue of dishonesty.
53.
As to the second proposed ground of appeal Ms Csengeri is right to identify that it was for the prosecution to adduce evidence from which the jury could be sure that there was an obligation to report the change in circumstances, and that an implied obligation to report might not arise in relation to certain statutory schemes, as appears from
R v D
[2019] EWCA Crim 209
; [2019] 2 r App R 15. There are two answers to this point. First in the admitted facts made pursuant to section 10 of the Criminal Justice Act 1967, it was provided at paragraph 12 in relation to the SPD that “if someone claims one of these discounts and their circumstances change, for example because another adult moves in with them, then they are under a duty to tell the local authority …”. This means it was an agreed fact that there was a legal duty to report the change of circumstances. Secondly it appears that the obligation derived from regulation 16 of the Council Tax (Administration and Enforcement) Regulations 1992, as amended. Ms Csengeri identified questions about commencement dates for various amending regulations, but was unable to show that the admission made at trial was not well-founded.
54.
In these circumstances we can see no basis for permitting this late variation to permit the grounds of appeal relating to count three to be raised. The provisions of Crim PR 36.14(5) exist for good reason, which is in part to ensure that the court is not having to deal, at a very late stage in the proceedings, with matters which, if they were well-founded, should have been dealt with before the single judge.
The renewed applications for permission to appeal in relation to the sentence, confiscation order and costs order
55.
We have looked at the renewed applications for permission to appeal against the sentence, confiscation order and costs order. We agree with the referring court that there are no arguable grounds of appeal. The sentence was as short as it could be, and was rightly suspended given the particular circumstances of the applicant. The judge had full regard to the consequences of the applicant’s conviction. The confiscation order showed that there had been a careful analysis by the judge of the evidence of expenditure and a proper application of the assumptions. The costs order was properly made given the costs incurred, the time taken on the proceedings, and sums involved.
Conclusion
56.
For the detailed reasons set out above we consider that the judge’s directions on count one were sufficient, and we have therefore refused the application for an extension of time and refused permission to appeal on count one. We refuse the application to vary the grounds of appeal to challenge the conviction on count three because the judge’s directions were sufficient and the evidence showed that there was a case to answer. We refuse the renewed applications for permission to appeal against sentence, the confiscation order and the costs order because we agree with the referring court that there are no arguable grounds of appeal. | {"ConvCourtName": ["Crown Court at Isleworth"], "ConvictPleaDate": ["18 December 2018"], "ConvictOffence": ["dishonestly failing to disclose information", "fraud"], "AcquitOffence": ["dishonestly failed to disclose a change in circumstances"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Isleworth"], "Sentence": ["18 months imprisonment suspended for 18 months, with a 30 day Rehabilitation Activity requirement"], "SentServe": ["with a 30 day"], "WhatAncillary": ["30 day Rehabilitation Activity requirement", "ordered to pay £89,074 (of which £17,500 was to be paid as compensation to the council)"], "OffSex": ["man"], "OffAgeOffence": ["58"], "OffJobOffence": ["working as a civil servant"], "OffHomeOffence": ["tenant of a one bedroom flat in Blythe Road, London W14"], "OffMentalOffence": ["mental health problems being severe reactive depression, requiring treatment"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["landlord and tenant"], "VictimType": ["tenants"], "VicNum": ["data not available"], "VicSex": ["He"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["student"], "VicHomeOffence": ["flat in Blythe Road, London W14"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["witnesses", "banking evidence", "forensic", "website"], "DefEvidTypeTrial": ["The applicant’s case was that there was no sub-letting because he was always living at the flat."], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Applicant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["extension of time of 209 days and for permission to appeal against conviction"], "AppealGround": ["whether there was a need to direct the jury on the difference between a lodger and a sub-tenant"], "SentGuideWhich": ["Criminal Procedure Rules at 36.14(5).", "Housing Act 1985", "Proceeds of Crime Act 2002.", "section 1 of the Fraud Act 2006"], "AppealOutcome": ["refused the application for an extension of time and refused permission to appeal"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we agree with the referring court that there are no arguable grounds of appeal.", "the judge’s directions were sufficient and the evidence showed that there was a case to answer"]} | {"ConvCourtName": ["Crown Court At Isleworth"], "ConvictPleaDate": ["2018-12-18"], "ConvictOffence": ["dishonestly failing to disclose information", "fraud"], "AcquitOffence": ["dishonestly failed to disclose a change in circumstances"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Isleworth"], "Sentence": ["18 months imprisonment suspended for 18 months, with a 30 day Rehabilitation Activity requirement"], "SentServe": ["Concurrent"], "WhatAncillary": ["ordered to pay £89,074 (of which £17,500 was to be paid as compensation to the council)", "30 day Rehabilitation Activity requirement"], "OffSex": ["All Male"], "OffAgeOffence": ["58"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Had mental health problems"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Stranger"], "VictimType": ["Individual person"], "VicNum": ["Don't know"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Student"], "VicHomeOffence": ["Temporary Accommodation"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["witnesses", "forensic", "Documentation", "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": ["whether there was a need to direct the jury on the difference between a lodger and a sub-tenant"], "SentGuideWhich": ["Criminal Procedure Rules at 36.14(5).", "Proceeds of Crime Act 2002.", "section 1 of the Fraud Act 2006", "Housing Act 1985"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we agree with the referring court that there are no arguable grounds of appeal.", "the judge’s directions were sufficient and the evidence showed that there was a case to answer"]} | 347 |
No:
2007/4895/A5
Neutral Citation Number:
[2007] EWCA Crim 3021
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 29 November 2007
B e f o r e
:
LORD JUSTICE HUGHES
MR JUSTICE FIELD
HIS HONOUR JUDGE RICHARD BROWN DL
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - -
R E G I N A
v
MARK STEPHENS
- - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -
Mr P Hall
appeared on behalf of the
Appellant
Mr S Christie
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE HUGHES: This is an appeal against a sentence of life imprisonment imposed for an offence of conspiracy to commit arson. The Registrar referred the case. We give leave.
2.
The appellant was born on 2nd November 1984. He was not quite 22 at the time of the offence which was on 9th October 2006. About a month previously he had parted from his girlfriend. She continued to live in the mid-terraced house which had been her home for some time. She lived there, as he very well knew, with her 3-year-old child by an earlier relationship. There was bitterness associated with the separation, at least as far as this appellant was concerned. Now living at a hostel, he got drunk and in that state he encouraged a friend to go and burn the ex-girlfriend's door down. He said his intention was to frighten her. The friend did so. A full can of petrol was used, squirted through the letterbox of the house and accompanied by paper to set it on fire. A very serious fire ensued. It undoubtedly put the lives of both the lady occupant and her young child at risk, if not, as may very well have been the case, also those of the occupiers of adjoining terraced houses. It can only have been absolutely terrifying for the lady and her child. It happened at half past nine at night.
3.
It would appear that there was no evidence that the appellant was present but he had encouraged what had happened. As a matter of history, in the end for reasons of evidence which were perfectly proper and which do not concern us, it proved impossible to proceed against the man who carried out the defendant's wishes. When this appellant was arrested he admitted asking his friend to burn the door. Despite that admission, he contested the trial not only up until the door of the court, but up until the time when his girlfriend had had to come and give evidence.
4.
In addition, while he was on remand pending trial the appellant made a series of attempts to contact the target of the offence, his ex-girlfriend. She was of course the principal Crown witness in the case against him. From prison he telephoned her a great many times. Most of the calls fortunately did not get through. Eventually she happened to pick up the telephone when he called. He told her that he was not going to go down for what had happened and that he had an alibi. She felt that he was laughing at her. It is right to say that the content of the call was not avowedly threatening, but the repetitive nature of the calls did make clear that what was going on was an attempt to intimidate the witness. The defendant was charged separately with witness intimidation, intending to obstruct the course of justice. He contested that case, this time to the end, but was convicted.
5.
The appellant had a previous conviction for harassing a different ex-partner in 2003. There was also a conviction for assaulting a police officer and for an offence of a quite different nature. He had not previously been sent to custody. The disposals in his previous cases had been a fine and two conditional discharges, which no doubt indicates the general level of gravity of those offences.
6.
The judge passed a life sentence for conspiracy to arson and a sentence of 18 months concurrent for the witness intimidation offence. Although the judge passed a life sentence, he did not fix any minimum term for the appellant to serve before consideration could be given to any question, if he was safe for release, to release on parole. We have to say that a life sentence on the facts of this case, serious as it was, was wrong in principle. Moreover, the discussions between counsel for the Crown and the judge on the approach to sentence reveal a number of quite important misunderstandings of the law.
7.
Assuming that the offence is both specified for the purposes of the Criminal Justice Act, schedule 15, and serious, that is to say carries a sentence of 10 years or more, which conspiracy to commit arson does, the approach to sentencing is as follows:
1. The first question is "Is the defendant dangerous for the purposes of the
Criminal Justice Act 2003
?" That is a two stage test: Is there a significant risk of further specified offences and, if so, is there a significant risk that serious harm to the public will thereby be caused, serious harm being defined as death or serious personal injury, physical or psychological.
2. If the answer to that is "Yes", then the sentence has to be a sentence of imprisonment for public protection. If the instant offence is one which carries a maximum sentence of life imprisonment, then a sentence of life imprisonment is also open to the judge.
3. A life sentence, however, will only be appropriate if the case is one of those very limited number of cases in which a discretionary life sentence would have been passed before the enactment of the
Criminal Justice Act 2003
. The most convenient expression of the test is to be found in
R v Chapman
[2000] 1 Cr.App.R 77 at 85C in the judgment of Lord Bingham, CJ. In short, a life sentence is appropriate if, but only if, the instant offence is of such gravity as to call for a very long sentence and, additionally, where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future and where the consequences if he does are likely to be specially injurious. As to the first of those conditions, Lord Bingham said this:
"It is in our judgment plain, as the Court has on occasion acknowledged, that there is an interrelationship between the gravity of the offence before the Court, the likelihood of further offending, and the gravity of further offending should such occur ... There is, however, in our judgment no ground for doubting the indispensability of the first condition laid down for imposition of an indeterminate life sentence in
Hodgson
, reaffirmed, as we say, in the more recent
Attorney-General's Reference No 32 of 1996
(
Whittaker
). It moreover seems to this Court to be wrong in principle to water down that condition since a sentence of life imprisonment is now the most severe sentence that the Court can impose, and it is not in our judgment one which should ever be imposed unless the circumstances are such as to call for a severe sentence based on the offence which the offender has committed."
In
R v Lang
[2006] 2 Cr.App.R (S) 3 at page 13, this court expressly affirmed, post the
Criminal Justice Act 2003
, that that test for the imposition of a life sentence stands - see the judgment of the Vice President, Rose LJ, at paragraph 8. That approach has been consistently applied since. Both the current and previous editions of Archbold correctly make that clear at paragraph 5-304. The references there to the cases of
Shaffi
,
B (Samuel
),
Folkes
and
Costello
are but examples of the consistent approach of this court to the question of the imposition of a discretionary life sentence. In the last of those cases,
Costello
, Keene LJ giving the judgment of the court underlined at paragraph 19 the point that particularly since the enactment of the dangerousness provisions of the
Criminal Justice Act 2003
and the availability of a sentence of imprisonment for public protection, there need be no temptation to impose a life sentence because of concern as to risk for the future. That is amply catered for by the imposition of a sentence of imprisonment for public protection.
4. If the case is within the very limited category of ones which call for a discretionary life sentence, the judge is obliged to fix a minimum term. The obligation is contained in
section 82A of the Powers of Criminal Courts (Sentencing) Act 2000
. It is set out in Archbold at paragraph 5-310. The only exception is the case in which the judge is satisfied that there are grounds for imposing a whole life term. Lest there be any doubt about it, that means the case of the offender of whom the judge is convinced that he must remain in prison for the rest of his natural life, however long it may be, as a punishment for what he has done and because it is plain that it will never be possible to conclude that he is safe for release. It need hardly be said that that is wholly exceptional. There are some serial or multiple murderers and similar offenders of whom it cannot be avoided to be said but it is a very limited category indeed.
5. The judge must also fix a minimum term if he passes a sentence of imprisonment for public protection - see section 82A(7).
6. The minimum term must in either case be fixed by reference to what would have been the appropriate tariff determinate sentence if a sentence of life or imprisonment for public protection, as the case may be, were not being imposed. That term is often referred to as the "notional determinate term". Having arrived at that, the judge is obliged by statute to halve it and deduct time in custody before arriving at the "minimum term" which is the period that the defendant must serve before the parole board can look at his case.
7. If the judge is passing a sentence of imprisonment for public protection and he also has to sentence for an offence which is not specified for the purposes of the dangerousness provisions of the Criminal Justice Act, as in this case witness intimidation is not, then the proper course is explained in
R v O'Brien
[2007] 1 Cr.App.R (S) 75
. In short, it is to pass a single sentence of imprisonment for public protection but to take into account in arriving at the notional determinate term the facts of the non-specified offence also; if a consecutive sentence for that would have been imposed, if determinate terms were being passed, then that can be reflected in the notional determinate term.
8.
We absolutely understand that these are complex and difficult provisions, but the Criminal Justice Act has now been in force for two-and-a-half years and they ought by now to be generally known.
9.
In the present case the judge first dealt with the case without any psychiatric report. It is our combined experience that it is very unusual to pass sentence in an arson case without a psychiatric report, certainly one should never contemplate a life sentence without one.
10.
Secondly, we are satisfied that there was a proper basis for the judge to find that the defendant met the dangerousness provisions of the Criminal Justice Act. There had been previous harassment of a different ex-partner and there was now a deliberate revenge attack in similar circumstances through the use of the exceptionally dangerous method of fire to a house. We have been invited, tactfully, by Mr Hall to consider whether there is any basis for disturbing the judge's finding of dangerousness, but we are quite satisfied that there is not.
11.
We are equally satisfied that the case does not begin to satisfy the
Chapman
criteria for a life sentence. This case would not have attracted a life sentence before
the 2003 Act
and it does not now. Serious as it is, it is adequately catered for by a sentence of imprisonment for public protection. The judge, with respect to him, was quite wrong to approach the case, as he did at page 10A of the discussion, on the basis that the choice between a life sentence on the one hand and a sentence of imprisonment for public protection on the other should depend upon the ability or inability to predict when the defendant was no longer likely to pose a risk. The question of assessment of risk in the future is one for the parole board from time to time. That is true in the case of both a life sentence and a sentence of imprisonment for public protection. The difference between the two these days is principally in the gravity of the instant offence.
12.
Since he failed to impose a minimum term, which he should have done, the effect of the judge's sentence, as things presently stand, is to impose a whole life term. That, we have no doubt, was inadvertent but we say for the sake of completeness that it is plainly erroneous. The judge had to fix a minimum term for the reasons which we have already explained. Counsel for the Crown was wrong at page 11C to tell the judge that he was not compelled to do it.
13.
We accordingly must address what the appropriate notional determinate term would have been if the judge had been passing a determinate sentence. This was a revenge attack be fire with accelerant on a private house in a terrace at night. It was highly dangerous. It created an enormous risk to the occupants, although happily in the end no one was hurt. On the other hand, it was charged properly as arson being reckless as to whether life would be endangered rather than with intent to endanger life, and the distinction between those two categories of arson needs to be maintained in sentencing.
14.
After trial for this offence the range of sentences seems to us to be likely to have fallen somewhere between seven and 10 years. The defendant pleaded guilty but very late indeed part way through the trial, as we have explained, and the adjustment in sentence for that kind of plea is small. The witness intimidation should properly have called for a consecutive sentence, if determinate terms had been being passed. It was not witness intimidation of the most serious kind. The judge thought that it merited a sentence of 18 months or thereabouts. Had he been passing determinate terms, he would have been required to have regard to the totality of sentence which was being imposed. We likewise do so. We fix the notional determinate term at nine years. Accordingly, the minimum term will be half that, four-and-a-half years, less however the 323 days spent in custody on remand.
15.
The appeal is allowed. The life sentence is set aside. We substitute a single sentence of imprisonment for public protection with a minimum term of four-and-a-half years, less 323 days. | {"ConvCourtName": ["data not available"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["witness intimidation, intending to obstruct the course of justice", "conspiracy to commit arson"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["very late indeed part way through the trial"], "RemandDecision": ["on remand"], "RemandCustodyTime": ["323 days"], "SentCourtName": ["data not available"], "Sentence": ["life imprisonment", "18 months concurrent"], "SentServe": ["concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["data not available"], "OffAgeOffence": ["not quite 22 at the time"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["drunk"], "OffVicRelation": ["ex-girlfriend"], "VictimType": ["ex-girlfriend"], "VicNum": ["the ex-girlfriend"], "VicSex": ["She"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["live in the mid-terraced house"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["girlfriend had had to come and give evidence."], "DefEvidTypeTrial": ["alibi"], "PreSentReport": ["data not available"], "AggFactSent": ["revenge attack", "attempt to intimidate the witness.", "previous conviction", "highly dangerous", "private house in a terrace at night."], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against a sentence"], "AppealGround": ["wrong in principle"], "SentGuideWhich": ["section 82A of the Powers of Criminal Courts (Sentencing) Act 2000.", "Criminal Justice Act 2003", "totality"], "AppealOutcome": ["appeal is allowed. The life sentence is set aside. We substitute"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["We have to say that a life sentence on the facts of this case, serious as it was, was wrong in principle."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["data not available"], "ConvictPleaDate": ["Don't know"], "ConvictOffence": ["witness intimidation, intending to obstruct the course of justice", "conspiracy to commit arson"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["very late indeed part way through the trial"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["323 days"], "SentCourtName": ["data not available"], "Sentence": ["18 months concurrent", "life imprisonment"], "SentServe": ["Concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["data not available"], "OffAgeOffence": ["21"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Yes-drinking"], "OffVicRelation": ["Acquaintance"], "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": ["Victim testimony"], "DefEvidTypeTrial": ["Offender claims to have alibi"], "PreSentReport": ["Don't know"], "AggFactSent": ["highly dangerous", "private house in a terrace at night.", "revenge attack", "previous conviction", "attempt to intimidate the witness."], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against a sentence"], "AppealGround": ["wrong in principle"], "SentGuideWhich": ["totality", "section 82A of the Powers of Criminal Courts (Sentencing) Act 2000.", "Criminal Justice Act 2003"], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["We have to say that a life sentence on the facts of this case, serious as it was, was wrong in principle."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 127 |
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO 202003250/A4
NCN:
[2021] EWCA Crim 261
Royal Courts of Justice
Strand
London
WC2A 2LL
Tuesday 23 February 2021
LORD JUSTICE DAVIS
MR JUSTICE SPENCER
MR JUSTICE BOURNE
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
REGINA
V
PAUL LAMB
DAVID JOSEPH LAMB
JAMES LAMB
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
MR B LLOYD
appeared on behalf of the Attorney General.
MS R HEDWORTH
appeared on behalf of the Offender Paul Lamb.
MR J HEDWORTH
appeared on behalf of the Offender David Lamb.
MR C KNOWLES
appeared on behalf of the Offender James Lamb.
J U D G M E NT
1.
LORD JUSTICE DAVIS: The Solicitor General seeks to challenge sentences on the grounds that they are unduly lenient. We grant leave in this case. There are three offenders concerned: Paul Lamb (now aged 53), David Lamb (now aged 51) and James Lamb, son of Paul Lamb (now aged 27).
2.
The three offenders had been charged with attempted murder and in the alternative wounding with intent, contrary to
section 18 of the Offences Against the Person Act 1861
. In addition, James Lamb had been charged with two counts of having an article with a blade or point and Paul Lamb had been charged with one count to like effect.
3.
At a plea and a trial preparation hearing on 14 February 2020 the offenders all entered pleas of not guilty in Newcastle Crown Court to counts 1 and 2. Paul Lamb also pleaded not guilty to count 5, being the count of having an article with a blade or point. James Lamb pleaded guilty to counts 3 and 4, being counts of having an article with a blade or point. A trial date was fixed for 6 July 2020, although that had to be vacated as a result of Covid impacts.
4.
On 18 September 2020, on the application of two of the offenders by way of seeking a
Goodyear
indication, there was a hearing before HHJ Adams in the Crown Court. The judge indicated that, unusually perhaps, as he said, he would be prepared to give a
Goodyear
indication in this particular case. Having done that, the judge indicated that the sentence would not exceed 11 years' imprisonment before personal mitigation was taken into account. On that day all of the offenders then pleaded guilty to count 2, being the alternative count of wounding with intent and Paul Lamb also pleaded guilty to count 5. The prosecution thereupon offered no evidence upon the count of attempted murder.
5.
On 27 November 2020 the offenders were each sentenced to 6 years 9 months' imprisonment on count 2 and various shorter concurrent sentences were imposed upon the other counts. The judge indicated in the course of his sentencing remarks, to which we will come, that he thought it appropriate that each offender should receive the same sentence.
6.
The background facts in essential summary are these. Paul Lamb and David Lamb were brothers and James Lamb, as we have said, was Paul Lamb's son. It seems plain that there had been something of a history between the three offenders and the victim of the attack, namely a man called Wayne Brown. The offenders maintained that Wayne Brown had a history of bullying David Lamb, involving physical violence and demands for money, moving into his house and so on. Further, it was stated that there had also been significant violence inflicted on others, including James Lamb. However, there was no basis of plea and the judge was not required to make any specific factual findings as to the full story by way of background; the judge nevertheless accepted that there had been significant background, involving bullying and assaults and so on the part of Wayne Brown.
7.
Just before 3 o'clock in the afternoon on Saturday 11 January 2020 Mr Brown had been in the company of David Lamb at an address in Gateshead, the home of a woman called Michelle Gibson. Others also had been visiting there. There was evidence that, at that stage, Wayne Brown appeared to have been bullying David Lamb within the property at the rear of the address and indeed then punched David Lamb. David Lamb is much smaller than Mr Brown. It was stated that the argument may have concerned money, said to be owed by David Lamb to Mr Brown, although his position was that no money
was in fact owed at all, rather it was simply being demanded by Mr Brown.
8.
At all events Mr Brown got much the better of David Lamb, repeatedly punching and kicking him. No weapons however were involved and Mr Brown then went back inside the house. David Lamb had then telephoned Paul Lamb; the result of which was that Paul Lamb, together with James Lamb, travelled to that address in their car, arriving quite soon after the telephone call had been made. They took with them two Samurai swords and a hunting knife. It was suggested, although no specific finding was made, that they had previously acquired those weapons as forms of defence against any prospective attacks by Mr Brown. At all events those were the weapons they took.
9.
On arrival at the address Mr Brown was then beckoned (most probably by David Lamb) into the rear yard. There he was then confronted by the offenders Paul and James Lamb, each of whom was in possession of a Samurai sword. As the judge found, those two would, at that stage, certainly have realised that Mr Brown was himself unarmed. The two then immediately began to attack Mr Brown with the swords, inflicting wounds as they did so. During the course of the attack the sword being used by the offender James Lamb buckled as it was being used to stab the victim. Having lost that sword James Lamb then returned to the vehicle to collect and arm himself with the knife (a form of hunting knife) and then, having returned, used it to inflict multiple deep penetrating wounds to the victim's neck.
10.
As for David Lamb, the evidence was that he did not himself physically participate in the fight; but there was evidence that he had encouraged Paul Lamb and James Lamb, knowing of course that they had weapons with them and that they were being used. At all events there was evidence, and it was accepted by the judge, that David Lamb was heard at one stage to shout: "Best thing finish him off otherwise he'll come back and do us" during the attack. Afterwards, the three left the scene. After returning home, they made attempts to conceal the weapons, although these were subsequently found.
11.
As for Mr Brown, he sustained life-threatening injuries. Indeed he suffered a cardiac arrest on the way to hospital and required intubation and surgery in the ambulance. He very nearly died. He required significant surgery. He lost his spleen. He was in intensive care for a number of days. The injuries had unquestionably been life threatening. He remained in a serious and unstable condition due to uncontrollable bleeding and was required to be returned for surgery on several occasions. He had to have a tracheotomy. Not only has he lost his spleen, but in addition there has been permanent scarring and also there is long-term restrictive movement in his left arm and he will constantly be on medication in the future. He had in fact required 37 units of blood and 37 units of plasma during his various surgical procedures. He continued a pattern of recovering and relapsing within the Intensive Care Unit until eventually removed from a ventilator on 11 February 2020 and being discharged from hospital on 18 February 2020. In his victim personal statement he also described the long-term psychological effects on him of the incident that day.
12.
Before the judge there were pre-sentence reports, and a psychological report so far as James Lamb was concerned. The overall assessment was that findings of dangerousness were not required.
13.
So far as David Lamb was concerned, the indications were that he had a significant number of problems; indeed he appears to have been an alcoholic at the time and needed care and there were various psychiatric issues so far as he was concerned.
14.
So far as the offender James Lamb was concerned, the psychological report referred to in effect his "sensitive and vulnerable" nature, to the fact that he had been driven in effect to the end of his tether by Mr Brown's previous conduct and, as the psychologist was to say, was "in a very disturbed state of mind that day". The impact of Mr Brown's previous behaviour on the offender Paul Lamb was in broadly similar terms.
15.
James Lamb has no previous convictions of any kind at all. Indeed the assessment was that what he did that day was wholly out of character. Paul Lamb does have a number of relatively old previous convictions but none involving violence and of no very great importance for present purposes. David Lamb unfortunately has many previous convictions, some involving violence: for example convictions for robbery, others involving burglary and the like.
16.
For the purposes of sentencing, the judge clearly had to have regard to the Definitive Guideline on Assault issued by the Sentencing Council. The judge was to accept, and it has not been disputed, that this s.18 assault was properly to be categorised as category 1 for the purposes of the guideline. So far as greater harm is concerned, here unquestionably there was injury which was serious in the context of the offence: the injuries had in fact been life threatening. Furthermore, as the judge was to find, there had also been a sustained or repeated assault on the victim. So far as factors indicating higher culpability was concerned, clearly here weapons had been used. The judge was to indicate there had been a degree of premeditation, but did not find that it was significant. A factor indicating lower culpability, and much pressed before the judge, was that here there was "a greater degree of provocation than normally expected". The judge of course was required to keep within the limits of his indication given at the previous
Goodyear
hearing.
17.
There was lengthy debate with counsel before the judge came to pass sentence. In the course of that debate Ms Hedworth, counsel appearing then as now for Paul Lamb, amongst other things, saw fit to say that she:
18.
"... do make a bold submission that this is a very unusual case... Your Honour will know that as from January of this year, any sentence imposed for [7] years would have the effect that the sentence imposed would not be half, it would be two-thirds served and I would invite perhaps your Honour to take that into account when determining what the appropriate length of sentence would be in this case."
19.
Mr Knowles, counsel then as now appearing for James Lamb, also adopted that submission as part of his submission:
i.
"... I know your Honour will have in mind not only the impact of
Manning
[that is with regard to Covid] but also the recent changes to the sentencing regime.
ii.
[THE JUDGE]: We are not meant to have regard to that. The release provisions are of no concern to sentencing judges. iii.
MR KNOWLES: Of course they are not in terms of guidance that is proffered but one looks at it on the basis that this is a very unusual case."
20.
We observe that before he came to pass sentence the judge said:
i.
"... just so that everyone is aware, it will be a sentence which is shorter than seven years."
21.
When he passed sentence the judge dealt with the background facts very fully and thoroughly. So far as the mitigation by way of the asserted provocation was concerned, the judge accepted that there was:
i.
"a very significant background, going way back, a long way back before this day in question, on the day in question, David Lamb had clearly been assaulted ..."
22.
The judge indicated that the matter was within category 1: although of course there had to be a significant reduction for the provocation which he had found.
23.
The judge then indicated, as required by the guideline, what the starting point was to be. For category 1, the guideline stipulates a starting point of 12 years' custody with a category range of 9 to 16 years' custody. The judge took what is perhaps a slightly unusual approach, in that having taken a starting point of 12 years' custody, he then first went down significantly because of the factor indicating lower culpability, being a greater degree of provocation than normally expected. He then went up a little for other aggravating factors and then down again for other mitigation which he identified: ending up with a figure, before credit for plea of 20%, of eight-and-a-half years. Consequently and before giving credit for plea the judge's ending figure was a figure which was actually below the bottom of the range set out in the guideline. The judge then went on to explain that in the circumstances that he thought an appropriate course to take was to pass the same sentence with regard to each offender and in the circumstances imposed the sentences which we have mentioned.
24.
On behalf of the Solicitor General Mr Lloyd, who did not himself appear in the proceedings below, submits that these sentences were unduly lenient. He submitted that this was clearly, as the judge found, a category 1 case, necessitating the starting point of 12 years' imprisonment. He then drew attention to what he said were the numerous aggravating factors, quite apart from the matters which had a part to play in terms of the categorisation. Here, he said, this had a degree of planning; weapons, in the form of two swords and a knife, had been taken to the scene; there was then the combined attack on the unarmed Mr Brown, who had first been lured outside; and then the parties had returned home and sought to conceal the weapons used. Furthermore, quite apart from the seriousness of the injuries at the time, there has been a long-term and ongoing impact upon Mr Brown. It is said that overall, given all the circumstances, the judge should have gone up towards the very top of the range before then coming back, by way of giving credit for the mitigation, in particular the provocation and such other mitigation as was available: in particular perhaps, with regard to James Lamb given his previous good character and so on.
25.
On behalf of the offenders counsel variously were prepared to accept that this sentence was generous, or disputed that these sentences were unduly lenient. It was not disputed before us that the judge was entitled to impose the same sentence on each offender,
although obviously different points could be made with regard to each of them.
26.
We need to make one initial point. At the
Goodyear
hearing, as the transcript shows, counsel then appearing for the prosecution adopted an essentially neutral position and, for example, made clear that he did not accept the level of provocation for which the offenders were arguing. However, counsel then appearing for the prosecution did not make any reference to the powers of the Attorney General to refer the sentence on the ground that it might be unduly lenient any sentence imposed consequent upon what had been indicated at a
Goodyear
hearing.
27.
In written submissions on behalf of at least two of the offenders it is suggested to us that that in effect precludes the challenge now, on the footing that the offenders were in some way misled, or, at all events, they had a legitimate expectation that the sentences imposed would not be referred to the Court of Appeal by the Attorney General. Indeed
Mr Hedworth (counsel appearing for David Lamb) in his written submissions has gone so far as also to assert that David Lamb would not have pleaded guilty had he thought there was a risk of a Reference.
28.
To the extent that those objections were pursued, this Court simply will not entertain them. True it is that under the
Goodyear
procedures, as the case of
Goodyear
itself stresses, counsel for the prosecution should, in cases where the point is applicable, draw the judge's attention to remind him of the power of the Attorney General to refer. But the
Goodyear
case itself also specifically makes clear that it is the responsibility of defence counsel to advise their clients of the possibility of an Attorney General's Reference and also specifically to advise their clients that they should not plead guilty unless they accept guilt. Mr Hedworth in fact informed this court that he considered that he had complied with his professional obligations.
29.
Consequently the present objections of this kind simply will not pass muster in this Court.
30.
It has in fact on numerous occasions been made clear in this Court that a failure by counsel for the prosecution to remind the judge of the availability of the powers to refer does not vitiate any subsequent challenge to the sentence being unduly lenient - see for example
Attorney General Reference No 48 of 2006
(R v Farrow)
[2007] 1 Cr App R(S) 90
. Put another way, if it be the case that any of the offenders here had an expectation that there would be no Reference to this court then it was not a "legitimate" expectation.
31.
Having disposed of that matter, we then turn to the substance of this Reference. As we have said, this unquestionably was a category 1 case, with a starting point of 12 years it unquestionably then had to move up significantly because of all the many serious and aggravating factors in this particular case. We agree with the submission of Mr Lloyd that those matters take this case up towards the top of the range of 16 years indicated as available by the Sentencing Guideline. But then, of course, there was the mitigation which was available to these offenders and not least in the form of the very grave provocation they had endured by reason of Mr Brown's prior conduct. We do not think that it can be said that the provocation arose on the day in question, if taken on its own. Here, in effect, the two, that is to say Paul Lamb and James Lamb, had been summonsed by David Lamb in effect to "sort out" Mr Brown. But the true gravamen of the provocation is that this was a culmination of the background in which Mr Brown had been physically assertive and dominating and bullying and, perhaps worse, over a significant period of time.
32.
James Lamb also of course had the significant mitigation of lack of previous convictions and it was clear that he was very remorseful about what he had done and he also had the observations made in the psychologist's report. Paul Lamb, too, although he had previous convictions, had been out of trouble for a significant amount of time, although, as we have said, David Lamb unfortunately had a very poor record indeed.
33.
We have to say that we have some doubts as to whether the provocation was quite of the order as the judge appeared to have assessed it: although we must of course have regard to his evaluation of the position. Even so, and giving full weight to the mitigation that was available and, in particular, the provocation, we think that an ending figure, before credit for plea, of not less than 12 years should have been taken in this particular case. The fact of the matter is that these offenders took matters into their own hands. We can understand the disinclination of people in their position not to go to the police. But here, for example, James Lamb was caring for his uncle; he would have had access to Social Services and one would have thought that, if only by way of caring for his uncle, the opportunity would have been there to tell Social Services of the kind of bullying and so on that David Lamb had been suffering. But that did not happen; instead they chose to do what they did on this particular day, in effect taking the law into their own hands. The result was, as Mr Lloyd submitted, a case of extreme
violence.
34.
That being so, and with all respect to the judge, this sentence was not simply very lenient, it was, in our judgment, unduly lenient. Indeed, it is striking that the judge, for no real explained reason, ended up with a figure of below the bottom of the range for then giving credit for the plea. That simply does not properly reflect the gravity of this offending, even giving full weight to the degree of provocation involved.
35.
Given the inevitable length of the sentence, Covid conditions in prison, although of course very unfortunate for any offender who currently is in prison, can only have a limited impact. However, we will also, to the extent that we feel possible, have regard to the fact that the judge clearly did desire to show a degree of leniency. Of course, we entirely to put out of account is the impact of any release date so far as these offenders are concerned, depending on whether or not the sentence exceeds 7 years.
36.
Taking the view, as we do, that these sentences are unduly lenient, we consider that it is our duty to increase them. In our judgment, giving credit of 20% for plea, as the judge was prepared to do, we think that the least sentence that can properly be imposed upon each of these offenders (and we will not distinguish between the three of them any more than the judge did because of the variety of factors involved) is one of 9 years' imprisonment. Accordingly, those will be the sentences substituted on count 2, the other sentences will stand and the appeal of the Solicitor General is allowed to that effect.
37.
LORD JUSTICE DAVIS: Are there any points arising?
38.
MR LLOYD: No. Thank you my Lord.
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": ["Newcastle Crown Court"], "ConvictPleaDate": ["14 February 2020"], "ConvictOffence": ["attempted murder", "having an article with a blade or point", "in the alternative wounding with intent"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty to count 2,", "all entered pleas of not guilty", "James Lamb pleaded guilty to counts 3 and 4,", "Paul Lamb also pleaded guilty to count 5"], "PleaPoint": ["At a plea and a trial preparation"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Newcastle Crown Court"], "Sentence": ["6 years 9 months' imprisonment"], "SentServe": ["concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["Paul Lamb (now aged 53), David Lamb (now aged 51) and James Lamb, son of Paul Lamb (now aged 27)."], "OffAgeOffence": ["53", "51", "27"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["various psychiatric issues"], "OffIntoxOffence": ["alcoholic at the time"], "OffVicRelation": ["there had been something of a history between the three offenders and the victim of the attack"], "VictimType": ["a man"], "VicNum": ["a man"], "VicSex": ["man"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["his house"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["cardiac arrest", "11.As for Mr Brown, he sustained life-threatening injuries. Indeed he suffered a cardiac arrest on the way to hospital and required intubation and surgery in the ambulance. He very nearly died. He required significant surgery. He lost his spleen. He was in intensive care for a number of days. The injuries had unquestionably been life threatening. He remained in a serious and unstable condition due to uncontrollable bleeding and was required to be returned for surgery on several occasions. He had to have a tracheotomy. Not only has he lost his spleen, but in addition there has been permanent scarring and also there is long-term restrictive movement in his left arm and he will constantly be on medication in the future. He had in fact required 37 units of blood and 37 units of plasma during his various surgical procedures. He continued a pattern of recovering and relapsing within the Intensive Care Unit until eventually removed from a ventilator on 11 February 2020 and being discharged from hospital on 18 February 2020. In his victim personal statement he also described the long-term psychological effects on him of the incident that day.", "he sustained life-threatening injuries", "made attempts to conceal the weapons, although these were subsequently found"], "DefEvidTypeTrial": ["Wayne Brown had a history of bullying David Lamb, involving physical violence and demands for money, moving into his house and so on", "Wayne Brown appeared to have been bullying David Lamb within the property at the rear of the address and indeed then punched David Lamb", "it was stated that there had also been significant violence inflicted on others, including James Lamb"], "PreSentReport": ["The overall assessment was that findings of dangerousness were not required"], "AggFactSent": ["he suffered a cardiac arrest", "He very nearly died", "lost his spleen, but in addition there has been permanent scarring and also there is long-term restrictive movement in his left arm and he will constantly be on medication in the future.", "Mr Brown was himself unarmed.", "he sustained life-threatening injuries", "returned to the vehicle to collect and arm himself with the knife (a form of hunting knife)", "premeditation", "number of relatively old previous convictions but none involving violence and of no very great importance for present purposes", "intensive care for a number of days.", "lost his spleen", "there had also been a sustained or repeated assault on the victim", "The injuries had unquestionably been life threatening", "significant surgery", "long-term psychological effects", "inflict multiple deep penetrating wounds to the victim's neck", "many previous convictions", "two Samurai swords and a hunting knife"], "MitFactSent": ["wholly out of character", "no previous convictions of any kind at all", "Wayne Brown appeared to have been bullying David Lamb within the property at the rear of the address and indeed then punched David Lamb", "a greater degree of provocation than normally expected"], "VicImpactStatement": ["data not available"], "Appellant": ["Solicitor General"], "CoDefAccNum": ["three offenders concerned"], "AppealAgainst": ["challenge sentences"], "AppealGround": ["unduly lenient", "sentence was generous, or disputed that these sentences were unduly lenient"], "SentGuideWhich": ["section 18 of the Offences Against the Person Act 1861", "Definitive Guideline on Assault issued by the Sentencing Council"], "AppealOutcome": ["Taking the view, as we do, that these sentences are unduly lenient, we consider that it is our duty to increase them. In our judgment, giving credit of 20% for plea, as the judge was prepared to do, we think that the least sentence that can properly be imposed upon each of these offenders (and we will not distinguish between the three of them any more than the judge did because of the variety of factors involved) is one of 9 years' imprisonment."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["weapons, in the form of two swords and a knife", "category 1 case, necessitating the starting point of 12 years' imprisonment", "seriousness of the injuries at the time, there has been a long-term and ongoing impact upon Mr Brown", "numerous aggravating factors", "had a degree of planning;", "returned home and sought to conceal the weapons used", "combined attack on the unarmed Mr Brown, who had first been lured outside"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Newcastle Crown Court"], "ConvictPleaDate": ["2020-02-14"], "ConvictOffence": ["having an article with a blade or point", "in the alternative wounding with intent", "attempted murder"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes", "Yes", "Yes", "No"], "PleaPoint": ["Initial pleas were 'not guilty', but then pleaded 'gulity' to counts 2 & 5", "At a plea and a trial preparation"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Newcastle Crown Court"], "Sentence": ["6 years 9 months' imprisonment"], "SentServe": ["Concurrent"], "WhatAncillary": ["Don't know"], "OffSex": ["All Male"], "OffAgeOffence": ["26", "50", "52"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["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": ["Don't Know", "Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["medical evidence", "he sustained life-threatening injuries", "weapons found"], "DefEvidTypeTrial": ["Victim Provocation or Aggression", "Victim Provocation or Aggression", "Wayne Brown had a history of bullying David Lamb, involving physical violence and demands for money, moving into his house and so on", "victim had previously attacked one of the victims"], "PreSentReport": ["Don't know"], "AggFactSent": ["premeditation", "there had also been a sustained or repeated assault on the victim", "number of relatively old previous convictions but none involving violence and of no very great importance for present purposes", "many previous convictions", "long-term psychological effects", "long term impact on health", "The injuries had unquestionably been life threatening", "intensive care for a number of days.", "lost his spleen", "significant surgery", "He very nearly died", "he suffered a cardiac arrest", "he sustained life-threatening injuries", "inflict multiple deep penetrating wounds to the victim's neck", "returned to the vehicle to collect and arm himself with the knife (a form of hunting knife)", "victim not armed, but offenders were armed", "two Samurai swords and a hunting knife"], "MitFactSent": ["a greater degree of provocation than normally expected", "wholly out of character", "no previous convictions of any kind at all", "victim initiated altercation"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Attorney General"], "CoDefAccNum": ["3"], "AppealAgainst": ["appeal against sentence"], "AppealGround": ["sentencing judge should have put offence in a higher category of seriousness", "unduly lenient"], "SentGuideWhich": ["Definitive Guideline on Assault issued by the Sentencing Council", "section 18 of the Offences Against the Person Act 1861"], "AppealOutcome": ["Allowed&Sentence Replaced by More Excessive Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["seriousness of the injuries at the time, there has been a long-term and ongoing impact upon Mr Brown", "returned home and sought to conceal the weapons used", "combined attack on the unarmed Mr Brown, who had first been lured outside", "weapons, in the form of two swords and a knife", "had a degree of planning;", "numerous aggravating factors", "category 1 case, necessitating the starting point of 12 years' imprisonment"], "ReasonDismiss": ["data not available"]} | 610 |
Neutral Citation Number:
[2010] EWCA Crim 1450
Case No:
201001563 A2
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WINCHESTER
MR RECORDER N. ATKINSON Q.C.
T20097141
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
06/07/2010
Before :
LORD JUSTICE HOOPER
MR JUSTICE GROSS
and
HIS HONOUR JUDGE MOSS Q.C.
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
- - - - - - - - - - - - - - - - - - - - -
Between :
PAUL DAVID MARTIN
Appellant
- and -
THE CROWN
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
MR. B. TABINER
appeared for the
Appellant.
MR. A. HIDDLESTON
appeared for the
Respondent
and
Attorney Generals Reference under section 36 of The Criminal Justice Act 1988
Mr A. EDIS QC
appeared for the
Attorney General
MR. B. TABINER
appeared for
Paul David Martin
Hearing date : 24
th
June 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Hooper :
1.
At the conclusion of the hearing we announced our decision that the appeal against conviction succeeded and that we would not order a retrial. The application for leave to refer the sentence passed on the appellant then became academic.
2.
On 5
th
day of December Christopher Love, a young man with a learner’s licence, was driving his car, a Renault Clio, around a bend on the A30 when he lost control killing himself and a passenger and very seriously injuring the driver of another car. In the front passenger seat of the car was Paul Martin (“Martin”) who, as a qualified driver, had earlier, albeit reluctantly, accepted a request by Christopher Love to accompany him in the car. Martin, now 34 years old, was not a professional instructor and had no previous convictions.
3.
Martin was convicted (Mr Recorder N Atkinson QC and a jury) after a trial of three offences committed on 5th December 2008. Count 2 alleged that he had aided, abetted, counselled and procured Christopher Love to cause the death of Christopher Love by driving a Renault Clio dangerously on the A30 near East Stour, Dorset. Count 2 alleged that he had aided and abetted etc Christopher Love to cause the death of Steven Upshall by driving the same car dangerously on the same road. Count 3 alleged that he had aided and abetted etc Christopher Love to inflict grievous bodily harm on Christopher Oliver, contrary to
section 20 of the Offences against the Person Act 1861
. A co-defendant in another car was charged with causing the deaths of Christopher Love and Steven Upshall by driving another car, a Citroen Saxo, dangerously on the same stretch of road and with inflicting grievous bodily harm on Christopher Oliver. The case against the co-defendant was that he and Love were racing, in other words driving in a competitive manner and that, as a principal, the co-defendant had caused the deaths and the injuries. The jury disagreed and the co-defendant faces a retrial in the near future. No doubt the judge conducting the retrial will want to consider those charges with care. We heard no argument about them.
4.
The procedural history of this case is very unusual.
5.
The Attorney General applied for leave to refer the sentence of 18 months imprisonment passed on Martin as unduly lenient. Whilst preparing the reference Mr Edis QC, to whom we are very grateful, realised that count 2 disclosed no offence known to law. The offence of causing death by dangerous driving requires the defendant to have caused the death of another. Thus there was, in this respect, no offence committed by the principal which Martin could aid and abet. Mr Edis invited Mr Tabiner who appeared for Martin to make an application for leave to appeal the conviction on count 1 out of time. This Mr Tabiner did.
6.
Both the Court, on pre-reading the reference, and Mr Edis became concerned about how the other two counts had been left to the jury. Mr Edis wanted to know how the case had been put in order to be able to formulate the reference. The Court was also concerned that, if no-one involved in the case had realised that count 2 charged no offence known to law, that other things might also have gone wrong.
7.
The contents of the summing-up when it arrived shortly before the hearing unfortunately did not put those preliminary concerns to rest.
8.
It was important to resolve all issues as soon as possible. Martin was due to be released from prison on electronic curfew in the near future. The retrial was likewise due to start in the near future.
9.
At the start of the proceedings we heard from Mr Edis shortly on the issue of the reference and then adjourned the application for a reference whilst we heard the application for leave to appeal count 1 and any other application Mr Tabiner might make orally (he had by then put nothing in writing about the other two counts). Mr Tabiner then sought leave to appeal counts 1 and 3 on the grounds of misdirection. That application was granted, together with the necessary extension of time.
10.
We start by describing the fatal accident. It took place on a left hand bend on a hill. The speed limit was 60 mph. The Clio driven by Christopher Love was following the Saxo driven by the co-defendant.
11.
About 150 yards before the scene of the accident the road was straight and five witnesses, who had just left a public house, heard the cars approach and were, they said, so frightened by the noise which they were making that they walked back away from the road until they had passed. They described the vehicles when they came into view as “like a rally car, going hell for leather” and said that there was only a car length or two between them. They each described the speed of the vehicles as being very high. The Saxo was ahead of the Clio and, according to one witness, the Clio was catching up the Saxo. These witnesses were all experienced drivers. The Saxo had had its exhaust modified and the Clio its air filter removed which all experts agreed would make it sound louder than normal.
12.
There was much evidence about the speed of the Clio at the moment immediately preceding the accident. The experts agreed that maximum speed at which the corner could be taken safely and on the correct side of the road (and there was no evidence that the Clio was not on the correct side) was between 56 and 62 mph. They were able to conclude from what happened to the car at the time of the accident that if the Clio was following the corner on the correct side of the road, then it was not exceeding a safe speed to take the corner. A passenger in the Saxo noted that the speed of the Saxo on the bend was 50 mph (he gave evidence of much greater speeds earlier in the journey that evening). The Saxo driver and passengers did not know that the accident had taken place and to that extent must have been some distance ahead of the Clio on the bend. Mr Tabiner submitted that the jury could not have been sure that the speed of the Clio was in excess of 50 mph. Mr Hiddleston argued that although the passenger in the Clio may have accurately described the speed of the Saxo, the Clio may have been going faster to catch it up. Mr Hiddleston accepted that the jury could not have been sure that the speed of the Clio was in excess of 60 mph. Unfortunately the Recorder did not bring together all the evidence about speed at and very shortly before the accident as he should have done to the extent to which excess speed was being said to form part of the dangerous driving.
13.
There was no doubt that the front offside tyre of the Clio was over-inflated by 47% (possibly we were told by a confusion at some time before that evening between imperial and metric measuring of tyre pressure). Admission 2 was in these words:
Over-inflation of the front off-side tyre by 47% combined with under inflation of the rear off-side tyre will cause over-steer.
14.
It was not the prosecution’s case that Martin (nor indeed Christopher Love) was or could reasonably have been aware of the over-inflation.
15.
It was the defence case that the over inflation had caused the Clio to take the corner more tightly than Christopher Love was intending and put the Clio at risk of hitting the verge. His error was to correct the line of the Clio by over-steering to the right. In doing that he lost control of the car and went on to the opposite side of the road. There the car “took off” and collided head on with an oncoming vehicle. This vehicle was driven by Christopher Oliver. Both Christopher Love and Steven Upshall in the Clio were killed.
16.
Mr Hiddleston accepted that the jury could not properly have been sure that the over and under-inflation did not cause Christopher Love to steer to the right to avoid the verge.
17.
Mr Hiddleston submitted to us that Christopher Love’s driving was dangerous because (so the jury were entitled to find) he was trying to catch up the vehicle in front and, albeit driving at less than the speed limit, this caused him to over steer. Mr Hiddleston accepted that the same jury that convicted Martin could not be sure that Howell was racing.
18.
The Recorder did not analyse, as he should have done, what the jury had to be sure about in order to reach the conclusion that Christopher Love was driving dangerously. That has caused us considerable difficulty in resolving the issues in the appeal.
19.
It was the prosecution’s case that the appellant’s guilt depended upon proving that, over the last 150-200 yards, the driving of Christopher Love was such that the appellant should have intervened to stop Christopher Love from driving. Whilst it
may be
that the prosecution could have put the case that the earlier bad driving of Christopher Love (which involved amongst other things high speeds and stupid manoeuvres) was such that the jury could be sure that appellant foresaw that Christopher Love was likely to drive dangerously during the journey, that was not how the prosecution put their case. We stress the words “may be” because we heard no argument on the point.
20.
The appellant’s case both in interview and in evidence was that although he had warned Christopher Love earlier about his driving, it had not occurred to him that the driving just preceding the fatal accident was such as to call for any warning.
21.
We turn to the directions given to the jury. Notwithstanding that this was a complex case on both the facts and the law, there was no discussion of the ingredients of the offences of aiding and abetting the dangerous driving and the
section 20
offence. There should have been and there probably should have been written directions. Indeed if there had been such a discussion, one hopes that it would have been realised by someone that count 1 disclosed no offence known to law.
22.
The Recorder reminded the jury that they were concerned with the driving on the bend:
There is evidence you have heard earlier in the hours preceding the fatal crash, clearly evidence of driving, of varying qualities which you may draw conclusions as to the quality and whether those different incidents amounted to dangerous driving, but the crucial driv[ing] you are concerned with is the driving at the time of the crash on that hill. It is relevant that you heard evidence about driving earlier, but it is the evidence at the time of the crash that you are concerned with, whether that was dangerous driving at that time.
23.
He went on to say a few sentences later:
But of course, we are one removed from the driver, because we do not have Mr Love in the dock, so we then have to consider whether or not on the evidence you have heard, you can be satisfied that there was dangerous driving and that it was a cause of the death. Although the whole issue of how the car handled and how it came about that a crash occurred is something that you have heard much evidence about and will want to consider.
24.
The Recorder then proceeded to deal with Count 3, the
section 20
offence.
Mr Oliver, the driver of the Honda survived this crash with very severe injuries. The indictment contains two counts that relate to him [the other count concerned the co-defendant] and those are the ones that are referred to as, under legislation, the Offences Against the Person Act in 1861, creating an offence which is concerned with a person unlawfully, maliciously, inflicting grievous bodily harm upon another. That’s how they commit that offence. Now, I mention 1861, because it is rather archaic English. What it means is really serious harm and the prosecution have suggested to you there would not be any issue and indeed, neither have defence counsel suggested that Mr Oliver suffered anything other than really serious bodily harm. What you are concerned with again, with him, is the causation. How it came about and the role that either of these Defendants had in that happening. And it is not suggested that they intended to injure him, but were they reckless in causing him really serious harm? Was, as a result of dangerous driving and the way the vehicles were, one or other of these Defendants were involved in the driving that evening, was it and could it be foreseen that harm could be done and yet they went on and took the risk to other road users?
It would be sufficient that they recognise some physical harm, not necessarily the extent of it. So the position is that you would have to be satisfied that some injury might result from the deliberate acts of the Defendants and yet they ignored that possibility and the prosecution does not have to prove that the Defendant in those circumstances anticipated the extent or the gravity of the injury that would result, but merely they took the risk recklessly, that injury could result.
25.
Mr Hiddleston did not seek to argue that this was a sufficient direction. It mixes objective and subjective foresight and foresight by a driver that harm to another
could
be done is insufficient without at least an identification of those ingredients of the dangerous driving about which the jury could properly be sure.
26.
The Recorder continued:
Now another ingredient in these offences that apply on three of the counts, of the six counts, is what is referred to as aiding and abetting and by coincidence the legislation that created that offence of aiding and abetting somebody to commit an offence, was also enacted in 1861. A person aids and abets, counsels or procures the commission of an offence, will be liable to be tried for that offence, in essence. Aiding and abetting describes action of a person who is present at the time of the commission of an offence and takes some part in it, participates. This concerns the First Defendant [Martin] on this indictment. Now we are not concerned, you have heard evidence about it, because it is relevant, for example you have heard about the, his participation or and his acting as a qualified driver sitting in the front passenger seat when the cars are going to East Noyle, approaching 100 miles an hour or whatever it was. What you are concerned with once again, is what happened at the scene of the deaths and injury. The First Defendant was a qualified, accompanying driver. You have to be satisfied that the car was being driven dangerously by Mr Love and the Defendant, the First Defendant should have stopped the driver doing so.
If he did not do so, then he would be aiding Mr Love in that dangerous, aiding and abetting him in that dangerous driving. Aiding and abetting, as I say, at the time of the crash. ...
27.
In this passage the Recorder tells the jury that they were concerned with what happened at the scene of the accident, described by him in another passage as “those few fatal seconds”, that they had to be sure that Christopher Love was driving dangerously, that Martin “should have stopped the driver doing so” and that if he did not he would be aiding and abetting.
28.
Mr Hiddleston did not argue that these directions were sufficient, nor the directions which the Recorder gave the next day:
I remind you, members of the jury, I think for the last time I mention this, that the question, the issue of the dangerous driving relates to the time of the accident itself and you having to be sure about that. That it was a cause of the collision and in relation, that relates to the death of those, the counts that deal with death by dangerous driving and in relation to the injuries. Of course, in relation to this Defendant, you are concerned with whether or not he foresaw the loss of control and you have to be sure that having foreseen that, a deliberate act and yet he ignored it, and the collision occurs and the prosecution then do not have to show you that the Defendant anticipated the extent or gravity of the injuries to the man who was injured, but merely that injury could result from his conduct, but as another element in that particular offence you have to be sure of, that the loss of control was effectively foreseen by the supervising driver.
29.
Counsel agreed that this was an improvement on what had been said the day before but still it was not sufficient. The Recorder is here asking the jury to be sure that Martin foresaw the loss of control.
30.
Prior to the appeal the Court drafted some possible directions for a case like this one not depending upon any defect in the car but on the manner of driving, when:
i)
it is not the prosecution’s case that the qualified supervising driver D anticipated the likelihood that the driver P would drive dangerously in advance of him driving dangerously; and
ii)
D’s liability is based on his failure to act when under a duty by reason of his position as the qualified driver to do so (rather than active encouragement).
31.
They were sent to counsel and, subject to one matter, they did not attract disapproval.
32.
On a charge of aiding and abetting causing death by dangerous driving in these circumstances:
You must be sure that P committed the offence of causing death by dangerous driving and-
(i) D knew that the driver, P, was driving in a manner which D knew fell far below the standard of the a competent and careful driver;
(ii) D, knowing that he had an opportunity to stop P from driving in that manner, deliberately did not take that opportunity;
(iii) by not taking that opportunity D intended to assist or encourage P to drive in this manner and D did in fact by his presence and failure to intervene encourage P to drive dangerously;
(iv) D foresaw that someone might be killed by P driving in this manner.
33.
Mr Edis queried (iv). Not being relevant to the outcome of this appeal, we did not hear any argument about (iv).
If
the required
mens rea
of the aider and abettor involves some knowledge or foresight of the death, then (iv) might be sufficient. On proof of (i), (ii) and (iii) D would be guilty of aiding and abetting dangerous driving and applying
Powell and English
[1999] AC 1
he could (arguably) be guilty of aiding and abetting causing death by dangerous driving if he has this foresight. We leave this matter to be decided on another day with the help hopefully of academic comment and those responsible in the Judicial Studies Board for drafting suggested judicial directions. We make it clear that we are not deciding that a direction along the lines of that included in (iv) is required.
34.
In drafting these possible directions we have had in mind the general principles of aiding and abetting, the decision in
Webster
[2006] EWCA Crimn415 and an unreported case cited in Archbold 2010 para. 32.19.
35.
We also drafted what could be an appropriate direction where a qualified driver in the circumstances we have outlined is charged with aiding and abetting the commission of a
section 20
offence by the driver:
You must be sure that P committed the
section 20
offence and
(i) D knew that P was driving in a manner likely to cause some harm to another;
(ii) D, knowing that he had an opportunity to stop P from driving in that manner, deliberately did not take that opportunity; and
(iii) by not taking that opportunity D intended to assist or encourage P to drive in this manner and D did in fact by his presence and failure to intervene encourage P to drive in this manner.
36.
Whether or not our suggested directions are correct, there can be no doubt, and this was not disputed, that the directions given by the Recorder were, with respect, woefully inadequate. Mr Hiddleston sought to argue that a jury, approaching the case from the perspective of what had occurred earlier (and not in the way that the prosecution had in fact put its case), would have inevitably found the appellant guilty. We do not accept that this court should now examine the safety of the conviction from the perspective of what had happened earlier and, in any event, even if we did approach the case in this way, we cannot possibly say that the jury’s verdict would necessarily have been the same.
37.
We give brief reasons for not ordering a retrial. Assuming that a jury could be sure (as this jury must have been) that Christopher Love was driving dangerously and had caused the death of Steven Upshall and the severe injury to Christopher Oliver, we have grave doubts whether a jury directed could properly convict Martin as an aider and abettor in the way in which the prosecution put its case. If Christopher Love was driving within the speed limit on the bend (and the jury could not be sure that he was not) and given that Christopher Love may have steered to the right because of the over and under-inflation which was not known to the appellant (and the jury could not be sure that he steered to the right for some other reason), then it is very difficult to see how a jury could be sure that all the ingredients of aiding and abetting had been proved. | {"ConvCourtName": ["CROWN COURT AT WINCHESTER"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["counselled and procured Christopher Love to cause the death of Christopher Love by driving a Renault Clio dangerously", "aided and abetted etc Christopher Love to inflict 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 WINCHESTER"], "Sentence": ["sentence of 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": ["data not available"], "VictimType": ["Christopher Love"], "VicNum": ["Christopher Love"], "VicSex": ["man"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["witnesses", "experts agreed"], "DefEvidTypeTrial": ["defence case that the over inflation had caused the Clio to take the corner more tightly than Christopher Love was intending"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Attorney General"], "CoDefAccNum": ["A co-defendant"], "AppealAgainst": ["sentence of 18 months imprisonment passed on Martin as unduly lenient.", "appeal against conviction"], "AppealGround": ["count 2 disclosed no offence known to law.", "on the grounds of misdirection."], "SentGuideWhich": ["section 20 of the Offences against the Person Act 1861"], "AppealOutcome": ["the appeal against conviction succeeded and that we would not order a retrial"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we have grave doubts whether a jury directed could properly convict Martin as an aider and abettor in the way in which the prosecution put its case."]} | {"ConvCourtName": ["Crown Court At Winchester"], "ConvictPleaDate": ["Don't know"], "ConvictOffence": ["aided and abetted etc Christopher Love to inflict grievous bodily harm", "counselled and procured Christopher Love to cause the death of Christopher Love by driving a Renault Clio dangerously"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Winchester"], "Sentence": ["sentence of 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": ["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": ["Expert report/testimony", "witnesses"], "DefEvidTypeTrial": ["Offender admits only to lesser offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Attorney General"], "CoDefAccNum": ["1"], "AppealAgainst": ["Sentence (is unduly lenient)", "appeal against conviction"], "AppealGround": ["on the grounds of misdirection.", "count 2 disclosed no offence known to law."], "SentGuideWhich": ["section 20 of the Offences against the Person Act 1861"], "AppealOutcome": ["the appeal against conviction succeeded and that we would not order a retrial"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we have grave doubts whether a jury directed could properly convict Martin as an aider and abettor in the way in which the prosecution put its case."]} | 445 |
Neutral Citation Number:
[2018] EWCA Crim 1101
Case No: 201704145/B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date: Thursday, 19 April 2018
B e f o r e
:
LORD JUSTICE DAVIS
MR JUSTICE MORRIS
HIS HONOUR JUDGE LODDER QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - -
R E G I N A
v
LYNDON JERMAINE LEWIS
- - - - - - - - - - - - - - - -
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 F McGrath
appeared on behalf of the
Applicant
Mr G Morrison
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - -
JU D G M E N T (Approved)
1.
MR JUSTICE MORRIS: This is an application for leave to appeal against conviction which has been referred to the Full Court by the Registrar. We grant leave to appeal.
2.
On 24 August 2017, at Isleworth Crown Court, the appellant was convicted on count 1 of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861 and on count 3, of possession of an offensive weapon, contrary to section 1(1) of the Prevention of Crime Act 1953. On count 1 he was sentenced to 13 years' imprisonment, with no separate penalty being imposed in respect of count 3. In respect of a further count (count 2), unlawful wounding, the judge found there was no case to answer and a not guilty verdict was entered.
3.
The Background Facts
4.
On 23 September 2016 Tyler Julian left his address at Grenfell Tower in London and was immediately attacked by an unknown assailant. His father came to his aid and pursued the assailant whereupon the two of them fought. The appellant's blood was found on the wall where some of the fighting occurred.
5.
The prosecution case was that the general description given of the assailant together with the DNA evidence placed the appellant at the scene as the man who had attacked the complainant. That was the attack the subject of count 1. He had at the time been in possession of a knife. That allegation formed the subject of count 3.
6.
The defence case was that he had not been present at the scene of the attack or in London at the time. The issue for the jury therefore was identity, namely whether they were satisfied the appellant was the assailant.
7.
The Prosecution Evidence
8.
The prosecution evidence included the following. Tyler Julian gave evidence by ABE interview that on that day (23 September) he had exited his flat and turned the corner whereupon he was struck in the face. He had looked up and was hit in the face again and fell to the floor calling out to his father. The male, who he had never seen before, stood over him. He was black, stocky, under 5 feet 11 inches tall, with stubble and big eyes. He was silent. He was wearing a black hoodie, sport-ish gloves with white markings on the back of them and black and white trainers. The male ran off.
9.
Junior Julian, the father, his evidence was that when his son left the flat he heard banging and screaming. He saw his son's assailant and gave chase. He punched the male as hard as he could as they ran down the stairs and then they reached the mezzanine level which appeared to be a dead end. The male turned to face him and he punched the male to his face. The male in turn punched his shoulder. The man fell back onto the door or wall which was near a flat door and they fought grappling against the wall. The man reached out for what he thought was his, that is Junior Julian's, pen which was attached to a lanyard worn by Junior Julian and which fell off. The man had a "Rambo" knife. He, Junior Julian, had not seen the assailant bleeding and had not realised that he himself had been stabbed until later. He described the man as black, 5 feet 9 inches, medium to stocky build with stubble and dark eyes.
10.
Expert evidence was called. The blue lanyard worn by Junior Julian was examined and swabbed and those swabs were submitted for DNA profiling. A mixed DNA result was obtained which indicated the presence of DNA from at least three individuals. The majority of the DNA appeared to have originated from one individual, with lesser contributions from at least two others. The profile of Junior Julian was the probable source of the majority of the DNA. The DNA of the appellant was fully represented within this result in such a manner that he could be one of the two lesser contributions of DNA.
11.
The experts used specialist probabilistic genotyping software to assess the result, considering the two following propositions: (i) the DNA consists of contribution from Junior Julian, Lyndon Lewis and an unknown individual, or (ii) the DNA consists of contributions from Junior Julian and two unknown individuals. The findings were in excess of 1 billion times more likely if the first of these two propositions were true.
12.
Secondly, there was a mark on the wall made in blood where the male had fought with Junior Julian. Wet and dry swabs were taken from the blood staining and a single complete DNA profile was obtained which matched the components from the DNA profile attributed to the appellant from the national DNA database.
13.
The expert evidence went on to explain that the DNA could have resulted from direct transfer from the appellant or secondary transfer. It was not possible to say when the DNA was transferred to a particular surface, or for how long the DNA had been present on the surface. There was no expert evidence on the blood transfer. The evidence was that the blood could be transferred if wet, if dry, or if dried blood had become really animated because it had become wet.
14.
The prosecution relied upon a section 34 inference from the appellant's failure in interview to deal with how his blood may have been found on the wall outside No 6 Grenfell Tower.
15.
The Defence Evidence
16.
The appellant gave evidence that he had not been in London in 2016, he had been in Liverpool. He had visited his grandmother in London for one night in August 2015. In June 2016 he had suffered a bleeding injury from two punches to his mouth and he had had dental work undertaken in December 2016.
17.
His evidence was that he had never touched the wall outside flat 6 Grenfell Tower. He accepted, to some extent, that his blood was on that wall and possibly the lanyard. Asked how his blood might have ended up outside Flat 6 he said: "The only thing that comes to mind is that I've a lot of family in that area and a family member went into Grenfell Tower". He explained that he did not have faith in the police and therefore gave no information or comment in interview.
18.
The Ruling on No Case
19.
At the trial the appellant submitted that the results in respect of the DNA evidence on the lanyard were inconclusive. In respect of the DNA from the wall, this was more likely on the evidence to have been by way of secondary transfer. It was otherwise inconsistent with the evidence of the fight which had taken place. In either case it was argued that the likely transfer of the DNA was from the exterior of the gloves worn by the assailant and therefore by secondary transfer. Further enough was known about the appellant to place him in Liverpool at the time of the incident.
20.
The judge rejected this submission of no case to answer. He rejected the latter assertion in relation to alibi, in that what was known was only that the appellant had a home address in Liverpool. There was no evidence of alibi advanced. On the other hand, there was no evidence that the appellant was near the scene of the crime. The Recorder directed himself by reference to the specific question identified in the recent case of
R v Tsekiri
[2017] EWCA Crim 40
, at paragraph 14.
21.
Applying the relevant factors identified in that judgment, those which supported the submission of no case were as follows. There was no evidence of geographical association; there was evidence which made it likely that the transfers of DNA were secondary; one of the DNA results was mixed profile; the clothing and gloves should be treated as highly movable articles. On the other hand, he said that factors which supported there being a case to answer were as follows: most importantly that there were two items of DNA (unlike, in
Tsekiri
and other cases, there was a full profile of the appellant on one of those items. Direct transfer to the wall could not be precluded. The wall was not movable and the lanyard could not be regarded as highly movable. Finally, there was no plausible evidence as to how the appellant's DNA had got where it did on the wall and the lanyard. There was a case for the jury.
22.
The ruling on section 34 and adverse inference
.
23.
In discussion with counsel in relation to legal directions it was argued that whilst the appellant had not put forward in interview that he had family in London, that should not attract a section 34 direction because it was not a fact in issue. The appellant had only put that forward as an explanation for his blood transference, having been asked to speculate in cross-examination and therefore it was a theory and not a fact. When he was questioned in interview the purpose of the questions was to show that the appellant had family and connections to London which was a different issue to accounting for his DNA.
24.
The judge ruled that he would give a section 34 direction in respect of the appellant not having given an explanation as to why his DNA was found at the scene. He had been questioned in interview on the point and remained silent. He had, in evidence, put forward the fact that he has family in the area and that it was possible the family had been to Grenfell Tower. That was a fact which had been put forward as an explanation as to how the DNA might have been there and the defendant had the opportunity of making known that fact in interview in answer to questions directly relevant to the matter.
25.
In his legal directions to the jury the judge pointed out that the appellant had made a "no comment" interview and the prosecution relied on his failure to answer a question relating to how the blood might have got onto the wall. That question had now been responded to by the appellant in his evidence at trial and he, the appellant, now sought to rely upon that response. The judge pointed out that the prosecution argued that, if there was any truth in that response, then the appellant could have commented on the question in his interview. He directed the jury that they must consider the appellant's explanation from making a "no comment" interview. That explanation had been that he, the appellant, did not have much faith in the police. That explanation did not preclude the jury from considering whether it was the real reason for the silence. The judge went on to direct that if the jury were sure that the real reason for his silence was that he had no response to make, then the jury were entitled to reach the conclusion that his present response was false. However, he went on to point out that the jury should not convict wholly or mainly because of his silence, stating:
i.
"You need to be sure that the only sensible explanation for his silence was that he had no response to make or none that would stand up to scrutiny."
26.
The Grounds of Appeal
27.
The grounds of appeal are follows:
(1)
The Recorder erred in finding that there was sufficient evidence on the issue of identification to allow the jury, properly directed, to return a guilty verdict.
(2)
The Recorder erred in permitting the jury to draw an adverse inference against the defendant under section 34 of the Criminal Justice and Public Order Act 1994 ("the 1994 Act").
28.
Discussion and Analysis
29.
Ground 1: submission of no case
30.
The relevant legal principles
31.
There is considerable recent authority from this court relating to DNA evidence, and the extent to which such evidence of itself can provide a sufficient basis for an jury to convict. Most recently in
R v Tsekiri
those authorities were drawn together. There is no need for us to review those authorities again. The following principles are to be derived from
Tsekiri
:
(1)
Where it is clear that the DNA has been directly deposited in the course of the commission of a crime by the assailant, a very high DNA match with the defendant would be sufficient without more to give rise to a case for the defendant to answer: (see
Tsekiri
, paragraph 6).
(2)
Where the DNA found on movable articles left at the scene of a crime is the
only
evidence, nevertheless that can be sufficient without more to raise a case to answer where the match probability is 1: 1 billion or similar. (The conclusion to the contrary in the case of
Bryon
is not correct):
Tsekiri
paragraph 14.
(3)
In this second class of case, whether the DNA alone is sufficient to raise a case to answer will depend on the facts of the particular case. Relevant factors include non-exhaustively the following six factors (set out at
Tsekiri
paragraphs 15 to 20 and 21):
(a)
Is there any evidence of some other explanation for the presence of the defendant's DNA on the item other than involvement in the crime?
(b)
Was the article apparently associated with the offence itself?
(c)
How readily movable was the article (on which the DNA was found) in question?
(d)
Is there evidence of some geographical association between the offence and the assailant?
(e)
Where the case is one of mixed profile is the DNA profile which matches the defendant the major contributor to that profile?
(f)
Is it more or less likely that the DNA profile attributable to the defendant was deposited by primary or secondary transfer?
(4)
Finally, there is not evidential or legal principle which prevents a case, solely dependent on the presence of DNA on an article left at the scene of a crime being considered by a jury:
Tsekiri
at paragraph 21.
32.
(2)
The Parties' Submissions
33.
Mr McGrath, for the appellant, submits as follows. First, there was no sufficient identification evidence in this case. The two witnesses had identified the assailant as being less than 5 feet 11 inches tall, whereas the appellant is 6 feet. Secondly, the DNA evidence was not sufficient for a jury to discount the disparity in height. As regards the DNA evidence the assailant was wearing gloves and the jury could not discount that it had been found as a result of secondary transfer through the mechanism of a glove or other garment. He submits that it is more likely that the DNA present on either of the two exhibits was the result of secondary transfer from "a highly mobile item", namely the exterior part of a pair of gloves. The case fell into the second case of class identified in paragraphs 7 and 14 of
Tsekiri
. A further factor relied upon is the geographic disparity between the location of the attack and the appellant's residence in Liverpool. He also relies upon the Recorder's own statement that there was evidence that makes it likely that the transfers of DNA material were secondary.
34.
As regards the fact that there were two items of DNA this, he submits, was not significant; it could be accounted for by secondary transfer from the same agent of transfer, namely the glove. He further relies upon the Recorder's direction to the jury on this issue where the Recorder had said that, if the jury concluded that secondary transfer was possible, they could not be sure that the DNA was the DNA of the appellant and so their verdict should be not guilty. Given the Recorder's own conclusion about secondary transfer, then secondary transfer, he submits, was plainly possible and the case should not have been left to the jury.
35.
Mr Morrison, for the prosecution, relies on the points made by the Recorder in his ruling. He submits overall that there was enough supportive evidence for the matter to go before the jury.
36.
(3) Conclusions
37.
In our judgment the Recorder was not wrong to dismiss the submission of no case to answer. First, we do not consider that the present case falls clearly within the second category of case identified in
Tsekiri
(paragraph 14). We reach that view for two reasons. First, this is not a case where the DNA evidence was the
only
evidence that the appellant was the assailant. There was the identification evidence of the assailant's ethnicity and stocky build which was consistent with the appellant's features. The discrepancy in the evidence in relation to height is not sufficient to exclude the appellant as being the assailant. Secondly, the appellant maintains that here there was a movable item, namely the assailant's gloves, being an item left at the scene of the crime. However, the relevant DNA was not found on those gloves, rather it was found on (a) the wall (plainly not a movable item) and (b) the lanyard, again hardly an item left at the scene of the crime - but rather an item worn by one of the victims of the assault. Moreover, even on the appellant's theory of the DNA transfer the DNA (on the wall and on the lanyard) had been deposited in the course of the commission of the crime “by the assailant” and not some other point in time or other location.
38.
Secondly and in any event, even if this case does fall within the second category in
Tsekiri
(i.e. an article left at the scene) the analysis in
Tsekiri
applies, namely DNA
alone
, left at the scene of the crime can be sufficient without more to raise a case to answer where the match probability is 1: 1 billion, depending on the relevant factors identified at paragraphs 15 to 20 of
Tsekiri
. Here, the relevant factors establish that there was a sufficient case to answer.
39.
First, the absence of an alternative explanation is relevant (see
Tsekiri
paragraph 15). At that stage of the case no explanation had been offered by the appellant himself, either in interview or elsewhere, as to how the DNA came to be found. The alternative explanation subsequently put forward by the appellant's counsel in argument was that the appellant's DNA had been deposited by secondary transfer from the assailant's gloves. Whilst put forward as a possibility, there was and is no clear explanation as to how the appellant's DNA found its way onto the gloves of the assailant. It is speculation that the DNA came from the glove. Moreover, as Mr Morrison pointed out, it was not known that the assailant was not bleeding.
40.
Secondly, the appellant's DNA was found in two different locations. Whilst it is suggested that the source of the DNA on the lanyard was also blood, there was no evidence either way to that effect. Thirdly, both of the “articles” on which the DNA was found were "associated with the offence itself". Just as in
Tsekiri
, where the DNA found on the car door handle used by the assailant in the course of committing the offence, here the DNA was found on the lanyard worn by one of the victims of the attack and on the wall where the struggle took place. In the words of
Tsekiri
(paragraph 16) “there can be no doubt that the assailant did touch the articles in question”. Fourthly (
Tsekiri
paragraph 17), the “articles” (the wall and the lanyard) were not “readily movable”. Fifthly (
Tsekiri
paragraph 19), in relation to the DNA from the blood on the wall it was a single complete DNA profile which matched the appellant's profile. As regards the DNA profile in relation to the lanyard, even though not the major contributor nevertheless the match for the appellant in respect of that DNA was statistically very strong.
41.
Finally, as regards primarily or secondary transfer (
Tsekiri
paragraph 20) whilst it is the case that the expert evidence suggested that it could have resulted from either primary or secondary transfer, that evidence did not favour one or the other. In any event in considering secondary transfer that takes one back to the plausibility of the glove theory of secondary transfer and the fact that no explanation had been given as to how the appellant's DNA might have found its way onto the glove. It was up to the jury to decide and it was entitled to discount the possibility of secondary transfer.
42.
In his ruling the Recorder went through all the
Tsekiri
factors and covered all this ground. We consider that he reached the correct conclusion.
43.
Ground 2: section 34 of the 1994 Act
(1)
The Legislation:
44.
Section 34(1) and (2) provide in summary that: “Where, in any proceedings against a person for an offence, evidence is given that the accused— (a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; …being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned... the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper."
45.
The word "fact" in section 34(1)(a) should be given a broad meaning, covering any alleged fact that was in issue and was put forward as part of the defence. Section 34 is potentially applicable if the defendant advanced at trial any pure fact "or exculpatory explanation or account that if true he could reasonably have been expected to advance earlier". It encompasses any "fact or matter ": see
R v Webber
[2014] 1 WLR 404
, at paragraph 33.
46.
(2)
The Parties' Submissions
47.
Mr McGrath submits that the relevant evidence given by the appellant in cross-examination was a theory accounting for evidence and thus not a fact relied upon in his defence “within the meaning of section 34 of the 1994 Act”. In this regard he relies upon a passage from the judgment of the Court of Appeal in
R v Nickolson
[1999] Crim LR 61 (CA) which in terms is cited in
R v Webber
at paragraph 22. Secondly, even if such a theory is a fact, it was not "a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when questioned". It is not reasonable to expect a detained person, not expert in scientific evidence, to develop and present a theory accounting for professed scientific findings within a 2 minute time frame of a tape recorded interview.
48.
Thirdly, it is submitted that the Recorder's direction was not sufficient. He failed to direct the jury to consider whether it was reasonable to expect the defendant to have accounted for his DNA in interview. Finally, he submits the Recorder was in error in taking the initiative in discussions in relation to the directions on this important issue of a section 34 direction.
49.
Mr Morrison, for the prosecution, submits that it was appropriate for the direction to have been given. The explanation given was a fact within section 34. In any event the terms of the direction were not such as to render the conviction unsafe.
50.
(3)
Conclusion
51.
The questions here are first, whether the evidence which the appellant gave was "any fact relied upon in his defence" within the meaning of that term in section 34 and whether that fact was one which in the circumstances existing at the time that he was interviewed "the appellant could reasonably have been expected to mention when questioned".
52.
As regards the first question it is important to identify that which is said to be the “fact relied on” in his defence. The evidence relied upon by the appellant in his defence was the statement, which had been given in answer to a question in cross-examination as to how his DNA came to be found in London that: "the only thing that comes to mind is that I have a lot of family in that area and a family member went into Grenfell Tower". The fact relied up was not simply the appellant has family in London, but critically, the suggestion that one of those family members had been to Grenfell Tower and, by necessary implication from the terms of the question that had been asked, that his DNA had or might have been deposited at the scene of the incident by secondary transfer through the agency of one of his family members. As the Recorder put it, the evidence was "put forward in explanation as to how the DNA might have been there by the defendant."
53.
We consider that that “fact” was a fact which fell within section 34. It, as a means of DNA transfer, was plainly an issue between the prosecution and the defence. Moreover, it was an "explanation" relied upon by the appellant in his defence at trial. Even if it only had the characteristics of a “theory”, nevertheless it was proffered at trial as an “explanation” for a critical piece of evidence. That is sufficient for the purposes of section 34.
54.
We do not consider that the observations of the Court of Appeal in the earlier case of
Nickolson
precludes such a conclusion. Significantly, whilst those observations were indeed cited in
R v Webbe
r, Lord Bingham did not adopt them: see the observation of Professor Birch also at paragraph 22 in
Webber
and further Lord Bingham's conclusion at paragraph 33.
55.
As regards the second question, we consider that the explanation was not one which required an expertise in scientific evidence before being offered. The appellant had been told that his DNA had been found at the location and he was asked how it might have got there. He knew he had family in the area and he might equally have been expected to raise the possibility which he subsequently raised in his cross-examination.
56.
Thirdly, we consider that there is nothing in the suggestion that the manner in which the Recorder discussed the directions with counsel was in any way appropriate. There was in those discussions a very fair and full exchange of views between counsel and the Recorder.
57.
Finally, as regard the terms of the Recorder's legal direction in relation to section 34, whilst we consider that the Recorder in his direction might have expressly invited the jury to consider specifically whether the appellant could reasonably have been expected to give the explanation, which he did give, at the time of the interview, nevertheless overall we consider that the direction which gave was fair and balanced. First, he pointed out that it was the prosecution's argument that he could have commented in interview but that it was a matter for the jury to determine. Secondly, the jury were expressly told that the appellant had not answered in interview because he had no faith in the police. Thirdly the Recorder reminded the jury that they had to be sure that the only explanation for his silence was that he had no response. Fourthly, these directions were given before closing speeches. In his closing speech Mr McGrath himself made the points to the jury that it was not reasonable to have expected the appellant to have given that explanation in interview. What is more, counsel did not, after the giving of the direction, invite the judge to add to or correct the terms of direction either before his speech or before the jury retired.
58.
For these reasons we consider that the second ground of appeal does not succeed.
59.
Accordingly, though we grant leave to appeal we dismiss the appeal on both grounds.
Epiq Europe Ltd
hereby certify that the above is an accurate and complete record of the proceedings or part thereof. | {"ConvCourtName": ["Isleworth Crown Court"], "ConvictPleaDate": ["24 August 2017"], "ConvictOffence": ["possession of an offensive weapon", "wounding with intent"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Isleworth Crown Court"], "Sentence": ["13 years' imprisonment,"], "SentServe": ["no separate penalty"], "WhatAncillary": ["data not available"], "OffSex": ["male"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["unknown assailant"], "VictimType": ["Tyler Julian"], "VicNum": ["Tyler Julian"], "VicSex": ["his"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["his address at Grenfell"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["DNA evidence", "Expert evidence was called.", "evidence by ABE"], "DefEvidTypeTrial": ["he had not been present at the scene"], "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": ["(2)\n The Recorder erred in permitting the jury to draw an adverse inference", "(1)\n The Recorder erred in finding that there was sufficient evidence"], "SentGuideWhich": ["section 18 of the Offences Against the Person Act 1861", "section 1(1) of the Prevention of Crime Act 1953."], "AppealOutcome": ["dismiss the appeal"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["overall we consider that the direction which gave was fair and balanced."]} | {"ConvCourtName": ["Isleworth Crown Court"], "ConvictPleaDate": ["2017-08-24"], "ConvictOffence": ["possession of an offensive weapon", "wounding with intent"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Isleworth Crown Court"], "Sentence": ["13 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": ["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": ["Expert evidence was called.", "Victim testimony", "DNA 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 conviction"], "AppealGround": ["(2)\n The Recorder erred in permitting the jury to draw an adverse inference", "(1)\n The Recorder erred in finding that there was sufficient evidence"], "SentGuideWhich": ["section 1(1) of the Prevention of Crime Act 1953.", "section 18 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": ["overall we consider that the direction which gave was fair and balanced."]} | 285 |
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO: 2023 00368 A5
NCN:
[2023] EWCA Crim 797
Royal Courts of Justice
Strand
London
WC2A 2LL
Thursday 29 June 2023
Before:
LORD JUSTICE STUART-SMITH
MR JUSTICE JACOBS
RECORDER OF SHEFFIELD
His Honour Judge Jeremy Richardson KC
REX
v
SHAUN HALL
__________
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 RUSSELL PYNE
appeared on behalf of the Applicant
_________
J U D G M E N T
MR JUSTICE JACOBS:
1.
This is a renewed application for leave to appeal against sentence following refusal by the single judge.
2.
On 22 December 2022 in the Crown Court at Winchester the applicant (then aged 40) was convicted of manslaughter. On 6 January 2023 the applicant pleaded guilty to an offence of burglary from a dwelling. On that day he was sentenced by Her Honour Judge Miller KC, who had presided over the trial of the manslaughter offence. The applicant was sentenced to 12 years for manslaughter and a consecutive term of 2 years for the burglary. In view of the applicant's prior criminal record, the burglary offence attracted a minimum custodial sentence of 3 years before a possible maximum 20 per cent reduction for plea, but the judge considered that it would be unjust to impose the minimum term for reasons of totality and accordingly her sentence was 2 years. The original application for leave to appeal would, if granted, require a short 3-day extension of time.
3.
The facts concerning the offences were as follows. On 23 October 2021 the applicant unlawfully killed Clare Gafan (aged 40). A few days earlier, around 16 or 17 October, the applicant committed a dwelling burglary in Southampton. He had driven to the area from his home in Derby, having recently lost his employment and relapsed into cocaine use. The applicant entered a flat through the rear window while the occupier was out. He carried out an untidy search, and stole cash, two watches and a pair of diamond stud earrings with a total value of between £700-£800. His DNA was found at point of entry, and cell site evidence showed that he had been in the area. In his police interview, the applicant denied the offences but admitted being in Southampton to purchase drugs.
4.
Having spent around a week in Southampton the applicant travelled to Bournemouth in his Audi motor vehicle. On Friday 22 October he stole £30 worth of Class A drugs from Clough Dent, a drug user from whom he had purchased drugs a couple of days earlier. On Saturday 23 October the applicant returned to the same area and was seen by a friend of Dent's. This friend told the group he was with what had happened the night before. The applicant was seen to drive down a dead-end road. The group, which comprised the deceased and a number of others, collected Dent, who happened to live on that same road. They then went to find the applicant. As they approached, the applicant accelerated away in his Audi, heading towards the group and striking the deceased. The expert evidence at trial was that the car reached around 19 mph and that it took 1.8 seconds to cover the 8 metres between where the car was stationary and where the deceased was hit. She was thrown over the roof of the car and landed heavily on her head. She immediately lost consciousness and never regained it. She died two days later in hospital from un-survivable brain injuries. There was an extensive fracture to the base of her skull, bleeding in the brainstem and underneath the membranes encasing the brain. Her shaken brain became soft and crumbly after being starved of blood and oxygen.
5.
Following the collision, the applicant drove out of Bournemouth, but the damage to his vehicle's bonnet meant that he had to stop on the outskirts of town. The applicant contacted a car recovery company and said that he had hit an animal. In fact the applicant was able to drive back to the Midlands, where he was arrested later that evening.
6.
In her careful sentencing remarks the judge described the incident and the defendant's background. He had many previous convictions, including for dishonesty, low level violence and dangerous driving, but these were all committed between 1995 and 2013, and the references provided on his behalf showed that he had subsequently held down a responsible and well-paid job. The judge accepted the prosecution's argument that this case of unlawful act manslaughter was culpability B under the applicable guideline, because death was caused in the course of an unlawful act which carried a high degree of death of grievous bodily harm which was or ought to have been obvious to the applicant. She rejected the defence argument that this case fell into culpability C. She said that there was clearly an obvious risk of very serious harm by accelerating at the group. She described it as a case where the applicant was using his car as a weapon against the approaching group. She agreed that his primary design was to get away rather than to cause injury, but she said that the applicant did not care how he did it or whether anyone was injured. Under the guideline the starting point for culpability B manslaughter is 12 years with a range of 8-16. She identified as aggravating features the applicant's previous convictions, albeit that he had never committed a similar offence and that there had been a lull in his offending, and his actions after the event in leaving the scene and trying to get away. She accepted that there were two important mitigating factors - remorse and lack of premeditation; although she thought that the latter was a stronger point. The judge considered that the aggravating and mitigating features in effect balanced each other out and therefore that the appropriate sentence was at the starting point under the guideline, namely 12 years. For the burglary she imposed the consecutive sentence of 2 years.
7.
In his written grounds of appeal Mr Pyne, who appeared on behalf of the applicant at the trial and sentence, submitted that the judge had erred in concluding that this was a category B culpability case. The lack of premeditation was a factor, he submitted, which reduced culpability. The driving was intended to cause fear rather than to cause harm; alternatively if it was category B, it was a less serious example of such an offence and therefore the judge's sentence was too high. It was also submitted that the judge had paid insufficient regard to mitigating factors, namely the applicant's remorse, his suicide attempt whilst awaiting trial, and the gap of 8 years between these offences and the applicant's previous offending. The decision to make the burglary sentence consecutive also made the total sentence manifestly excessive.
8.
In his oral submissions this morning, to which I will return in due course, Mr Pyne has to some extent refined his submission or at least focused on a particular aspect of it. He has nevertheless maintained the points raised in his original grounds of appeal, and I start by addressing those by reference to what the single judge said. The single judge addressed the various points carefully and comprehensively when he refused leave to appeal. We agree fully with what he said and will quote the following:
"You complain that the Judge wrongly categorised your case within the Sentencing Council Guideline on Unlawful Act Manslaughter as one falling into category B. I disagree. You drove in the direction of a number of people, accelerating hard as you did so. This act created an obvious risk of killing someone or of causing someone the most serious injury. That entitled the Judge to categorise the case as she did. That is so despite your lack of premeditation and that your intention was to frighten people so that they jumped out of the way.
You also aver that, if this was a category B case, the Judge should have sentenced you to a term within the bottom part of the range and not, as she did, to the term set as the starting point for an offence in that category. In conjunction with that you assert that the Judge should have afforded more weight to your mitigation. The Judge heard the trial and was best placed to weigh up the competing factors at play in your case. The Judge accepted that you were to an extent remorseful but could not give great weight to that factor when you did not plead guilty and thus did not accept proper responsibility for what you had done. It is right, as set out in your grounds of appeal, that you did not have recent previous convictions but you had a number of serious convictions in the past which should rightly have been treated as aggravating your offending on this occasion. The Judge considered this aspect of the case with care and decided that the mitigating and aggravating features of the case balanced out one another. It is not arguable that she was not entitled to reach that conclusion.
Finally, you complain about the consecutive sentence of 2 years for burglary which was imposed on you at the same sentencing hearing. A consecutive sentence was not wrong in principle. This was a different type of offence committed on a different occasion. As to length - you were a 'three-strike' burglar and thus could have expected a sentence of at least three years. The Judge reduced the term imposed upon you with totality in mind. Some Judges might have reduced it still further but the approach taken by the Judge did not result in an overall sentence which is arguably manifestly excessive."
9.
In his submissions to us this morning, Mr Pyne has advanced essentially the same primary argument that failed before the single judge and he has focused on features of the offending which, he submitted, should on a fair assessment of culpability either take it into category C or at least should be factored into the analysis of where in category B the case sits. The point on which he focuses is that there was an element of self-defence, albeit not amounting to a defence, and this was an attempt to get away from people. The applicant's sole intention was to get away. The judge did refer to both aspects in her sentencing remarks and, as Mr Pyne acknowledged, these may simply be different aspects of the same coin.
10.
We recognise that the sentencing guidelines for manslaughter do require different indications of culpability to be taken into account and that a fair balance needs to be struck. However, in the present case it is accepted by Mr Pyne that a category B factor was present. In our view this was unquestionably the dominant or overwhelming factor when it came to assessing the defendant's culpability in the present case and we do not consider it arguable that the judge's decision to impose a 12-year sentence after looking at mitigation and aggravating factors can be criticised as manifestly excessive. Ultimately therefore, and notwithstanding the concise and focused submission made by Mr Pyne this morning, we remain of the same view as that expressed by the single judge and indeed the trial judge. Accordingly, we refuse the renewed application for leave to appeal on the basis that it is not arguable that the judge's sentence was manifestly excessive. In view of that decision we also refuse the application to extend time.
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 Winchester"], "ConvictPleaDate": ["22 December 2022"], "ConvictOffence": ["manslaughter"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty to an offence of burglary from a dwelling"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Winchester"], "Sentence": ["12 years", "2 years for the burglary", "12 years for manslaughter"], "SentServe": ["consecutive"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["then aged 40"], "OffJobOffence": ["having recently lost his employment"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["relapsed into cocaine use"], "OffVicRelation": ["data not available"], "VictimType": ["Clare Gafan"], "VicNum": ["Clare Gafan"], "VicSex": ["Clare Gafan"], "VicAgeOffence": ["aged 4"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["expert evidence", "cell site evidence showed that he had been in the area", "His DNA was found"], "DefEvidTypeTrial": ["applicant denied the offences"], "PreSentReport": ["data not available"], "AggFactSent": ["He carried out an untidy search, and stole cash, two watches and a pair of diamond stud earrings with a total value of between £700-£800.", "using his car as a weapon", "his actions after the event in leaving the scene and trying to get away", "applicant denied the offences", "many previous convictions", "admitted being in Southampton to purchase drugs.", "including for dishonesty", "applicant's prior criminal record"], "MitFactSent": ["remorse", "lack of premeditation"], "VicImpactStatement": ["data not available"], "Appellant": ["applicant (then aged 40) was convicted"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal against sentence"], "AppealGround": ["judge had erred in concluding that this was a category B culpability case"], "SentGuideWhich": ["Sentencing Council Guideline on Unlawful Act Manslaughter as one falling into category B"], "AppealOutcome": ["we refuse the renewed application for leave to appeal"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["The lack of premeditation was a factor, he submitted, which reduced culpability. The driving was intended to cause fear rather than to cause harm; alternatively if it was category B, it was a less serious example of such an offence and therefore the judge's sentence was too high. It was also submitted that the judge had paid insufficient regard to mitigating factors, namely the applicant's remorse, his suicide attempt whilst awaiting trial, and the gap of 8 years between these offences and the applicant's previous offending. The decision to make the burglary sentence consecutive also made the total sentence manifestly excessive."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["approach taken by the Judge did not result in an overall sentence which is arguably manifestly excessive.\""]} | {"ConvCourtName": ["Crown Court At Winchester"], "ConvictPleaDate": ["2022-12-22"], "ConvictOffence": ["manslaughter"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Winchester"], "Sentence": ["14 years in total", "12 years"], "SentServe": ["Consecutive"], "WhatAncillary": ["Don't know"], "OffSex": ["All Male"], "OffAgeOffence": ["40"], "OffJobOffence": ["Unemployed"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Yes-drugs"], "OffVicRelation": ["Don't know"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Female"], "VicAgeOffence": ["40"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["expert evidence", "cell tracking", "DNA evidence"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["his actions after the event in leaving the scene and trying to get away", "use of 'weapon'", "of bad character", "many previous convictions", "drug use", "applicant denied the offences", "high level profit", "applicant's prior criminal record"], "MitFactSent": ["lack of premeditation", "remorse"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal against sentence"], "AppealGround": ["Sentencing judge should have put offence in a lower category of seriousness"], "SentGuideWhich": ["Sentencing Council Guideline on Unlawful Act Manslaughter as one falling into category B"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["gap of 8 years between previous offences", "offender has strong mitigation"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["sentencing by judge was correct"]} | 571 |
No:
04/6920/C4
Neutral Citation Number:
[2005] EWCA Crim 1269
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Tuesday, 10 May 2005
B E F O R E:
LORD JUSTICE GAGE
MR JUSTICE HEDLEY
MR JUSTICE FULFORD
- - - - - - -
R E G I N A
-v-
RYAN DUNNE
- - - - - - -
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 MARK BUTLER
(a solicitor advocate) appeared on behalf of the APPELLANT
MR JONATHAN N DAVIES
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
MR JUSTICE FULFORD: On 15th October 2004 at the Crown Court at Guildford the appellant, who has just turned 18, was convicted of causing death by dangerous driving and thereafter he pleaded guilty on rearraignment to aggravated vehicle taking whereby death was caused. He also pleaded guilty to offences of driving without a licence, failing to report an accident and using a vehicle without insurance, which were committed to the Crown Court pursuant to
section 41
of the
Criminal Justice Act 1988
.
2.
On 9th November 2004 he was sentenced by Judge Crocker to four years' detention pursuant to
section 91
of the
Powers of Criminal Courts (Sentencing) Act 2000
for causing death by dangerous driving, and he was disqualified from driving for eight years and until he passes an extended retest. No separate penalty was imposed as regards any of the other offences. The appellant appeals against both elements of the sentence by leave of the single judge.
3.
The car accident that left one of his friends dead and another seriously and permanently injured occurred in the following circumstances. Between 6 and 7 pm on 11th September 2003 the appellant drove to a fair in Ashford with three others, Nathan Young and Joe Lane, who both sat in the back seat of the car that he was driving, and Nicholas Llewellyn, the deceased, who sat in the front passenger seat. None of the four were wearing seat belts. The appellant had taken his grandmother's motorcar without her permission, and, moreover, as we have just indicated, he was driving without a licence or insurance. Whilst driving along a road called Long Lane he accelerated and overtook a Rover motorcar as it turned left into Short Lane. Simultaneously another car came out of Short Lane, but the appellant managed to drive past it without incident. Following the junction with Short Lane there is a bend in the road to the right. Young thought the appellant was approaching that bend too fast and he told him not to brake because he feared that, because of the speed that the vehicle was travelling at, the appellant would lose control of the vehicle. The speed limit on Long Lane was 30 mph. The police collision investigator estimated that the speed of the vehicle as it entered the bend was in the region of 50 mph. The road was in reasonable condition, although there were some minor potholes and there had been several repairs. It was established that there was no mechanical failure on the part of the vehicle and there was no evidence that any other person or vehicle was involved in the loss of control of the car. The rear nearside wheel touched the kerb and the car veered across the carriageway. The appellant tried to correct this, and the car swerved back towards the nearside and then rolled over twice, before coming to a stop.
4.
Nicholas Llewellyn was thrown through the passenger window. Lane went through the front driver's vehicle. Young and the appellant got out of the car when it came to a stop. The appellant asked Young what he should do and Young said "Just go". The appellant left the scene before the police arrived. He went home. His family then took him to an address in Chiswick, where he remained until his arrest three days later.
5.
The deceased, Nicholas Llewellyn, died as a result of blunt head trauma sustained in the accident causing brain injury. Lane sustained serious head injuries. He remained in hospital for some time, and a metal plate was inserted into his head. He has subsequently developed epilepsy and poor memory. Young and the appellant both sustained minor injuries only.
6.
The appellant, following his arrest, made no comment in the interview with the police but submitted a prepared statement in which he stated that as he approached the bend there was an oncoming car. He developed this account during the course of the trial, and in evidence he was to say that this car had been driving over the white lines and on to his side of the road. However, no other witnesses mentioned such an oncoming car, and the jury's verdict means that they must have rejected that account as being untrue.
7.
The appellant's grandfather gave evidence that he had taught the appellant to drive on private land; and he said that the appellant was good enough to pass his driving test. Moreover, he said that he had taken the appellant to an address in Chiswick after the incident as he did not think he was in a fit state to be questioned by the police.
8.
We observe that there was a moving impact statement from the parents of the deceased before the court below which demonstrated clearly that the appellant had shown little or no remorse after the incident and that he had failed to take the opportunities that were made available to him to apologise to the family of Nicholas Llewellyn.
9.
Against that failure, by the time the reports to which we will turn in a moment were prepared, the appellant had expressed regret for the results of his actions, although he did not and has not at any stage acknowledged that he in fact did anything wrong.
10.
In passing sentence the judge observed that this case showed the tragic results that flow when young people drive illegally and that no sentence could compensate for the death of a son.
11.
The appellant was aged 16 at the time of the crash. He was uninsured and was not legally entitled to drive. He arrogantly claimed he was a good driver, and tragically, as the judge observed, events demonstrated that this was wrong. Instead the judge considered, as he observed in passing sentence, that the appellant was showing off and was driving very fast for the conditions. In the view of the judge the only real mitigation was the appellant's age. But, he observed, it had to be made clear to others that the courts took a very serious view of people who drove when unqualified. Furthermore, the appellant's good character and the contents of a psychological report were taken into account by the judge, who expressly reduced the sentence he would have passed otherwise in the light of the appellant's age. The judge concluded that a detention and training order was not appropriate in this case, no doubt because the maximum available term - that of two years - was too short in all the circumstances.
12.
There were two reports before the court below that we have considered with care.
13.
In the pre-sentence report the appellant did not accept that his driving had been dangerous, although he admitted having previously driven illegally. He said that he felt remorse at the death of his friend. The author of the report indicated that his father had a number of criminal convictions and a bad drug habit, which would have made family life stressful. The appellant had demonstrated significant educational, emotional and behavioural difficulties at school. The risk of him reoffending and causing harm to the public was estimated as being low, although it was recognised that the offence was so serious that no alternative to custody was realistic and that a sentence of detention pursuant to
section 91
of the
Powers of Criminal Courts (Sentencing) Act 2000
would not be disproportionate. However, in the view of the probation officer, the most appropriate sentence would have been a detention and training order.
14.
In the psychological report, Dr Ghadiali indicated the appellant's intellectual functioning is at an abnormally and significantly low level and he has long-standing learning difficulties. His emotional and behavioural problems were, in the view of the psychologist, probably caused by an abnormal family life. His father is addicted to crack cocaine, and the appellant had apparently witnessed many scenes of domestic violence. Perhaps unsurprisingly, he has suffered from a psychological adjustment disorder as a result of the accident and he demonstrated features of post traumatic stress disorder. It was stressed that he requires long-term support and supervision.
15.
In support of this appeal Mr Butler, the appellant's solicitor, has succinctly advanced the following matters. First, it is submitted that both the period of four years' imprisonment and the period of eight years' disqualification were separately manifestly excessive. Second, it is contended that the judge failed sufficiently or at all to take into account the following matters: the appellant's age, his previous good character and his timely guilty plea as regards the offence of aggravated vehicle taking. Third, it is suggested that the judge wrongly, and against the weight of the evidence, concluded that the appellant had been showing off at the time of the accident. Fourth, it is argued that in any event this sentence was out of line with the guidelines set out in
R v Cooksley
[2003] EWCA Crim 996
;
[2004] 1 Cr App R (S) 1
. Mr Butler has suggested that in the case of an adult following a trial, the range of sentence available to the judge was no higher than two to three years and that from that figure there should have been deducted an element to reflect the principal elements of the appellant's mitigation.
16.
Turning to those various submissions, it is clear from the sentencing remarks that the judge very much had in mind the defendant's youth, his good character and the conclusions of the authors of both of the reports. The issue, in our view, is not that the judge failed to take those matters into account, as Mr Butler, as we have indicated, has argued, but whether the overall sentence passed was excessive in light of all the available mitigation.
17.
The suggested timely plea as regards the aggravated vehicle taking is, in the view of this court, of little moment. No additional sentence was imposed in any event for that offence, and, moreover, following the jury's verdict on causing death by dangerous driving, the plea to that count became essentially inevitable.
18.
Having presided over the trial the judge was well placed to determine whether or not the appellant had been showing off; and we do not see any reason to interfere with his conclusions in that regard. At the very least, at the time of the accident he was travelling significantly over the speed limit whilst going round a bend and the engine of the car was heard to have been revving in a high way at the time.
19.
The real argument of merit that arises on this appeal is whether, bearing in mind the guidelines laid down in
Cooksley
, this sentence in both of its elements was manifestly excessive.
20.
We agree that this case falls into what the court then described as being the category of intermediate culpability, in that the facts as we have described them demonstrate that this terrible crash was the result of either a momentary and dangerous error of judgment or it followed a short period of bad driving. However, we do not accept the suggestion that the appropriate starting bracket for the custodial term was a sentence of two to three years following a trial. The offence was aggravated by the fact that not only was one person killed but another was left seriously and permanently injured. Furthermore, we are of the view that the appellant's attempt to avoid justice was an aggravating feature, as was the fact that he was driving without insurance and without a licence.
21.
The court in
Cooksley
expressly made it clear that if, for instance, two deaths were to result from an instance of driving of this kind the sentence following a trial could be of the order of five years. In the instant case, although only Nicholas Llewellyn died, as we have just observed, Joe Lane suffered very bad and lasting injuries. In those circumstances a custodial sentence following a trial of four years cannot be said to be, as a matter of principle, manifestly excessive.
22.
The real issue is whether the mitigation in this case, when set alongside the aggravating factors, makes this a sentence with which this court should interfere.
23.
What impresses us is the overall strength of the mitigation available to this appellant. Weighing his intellectual and educational deficits, his troubled and disturbing home life, his good character and youth, and the sense of remorse he eventually came, apparently genuinely, to feel for his actions as against the terrible consequences of this offence, we are of the view that this sentence, solely on the grounds of that particular personal mitigation, was somewhat too long. We consider that the 24-month maximum that is available for a term of detention and training would be an insufficient penalty for this offence and therefore we propose to reduce the custodial term imposed under
section 91
of the
Powers of Criminal Courts (Sentencing) Act 2000
by twelve months, making the overall length three years.
24.
We stress that we are keenly aware of both the views and the anguish of the family of the deceased and the consequences for Joe Lane. As Mr and Mrs Llewellyn recognise in their statement, a custodial sentence will never change or reverse what has happened and imprisonment serves only to make the appellant accountable for what he did. This reduction in sentence is not in any sense meant to detract from the great loss to that family or to diminish the tragedy of the death of their excellent and highly valued young son. It is rather to ensure that, grave though this offence was, this appellant, bearing in mind the particular and powerful mitigation that we have highlighted, should only serve by way of a custodial term a sentence that comes within the guidelines that have been very carefully laid down for offences of this kind. We would stress that if this appellant had not had this particular mitigation or if he had been older, we would have had no hesitation in upholding the sentence imposed by the judge.
25.
As for the period of disqualification, we consider that a period of eight years is significantly out of line with the guidelines again laid down in
Cooksley
. For dangerous driving of this kind when the offender has a previous unblemished driving record, the ban should be of the order of two years or so. However, with this appellant, by his own admission, he had driven illegally on earlier occasions and accordingly has demonstrated a clear tendency to disregard the rules of the road. He was driving without a licence and insurance, and in a car he had taken without the owner's consent. Those are important factors which raise the appropriate length of the period of disqualification from the starting point of in the region of two years. Accordingly, we consider that a period of five years' disqualification is appropriate in this case bearing in mind all of the circumstances.
26.
In the result the period of custody is reduced by twelve months to three years; the period of disqualification is reduced to five years and the appellant will take an extended retest. To that limited extent this appeal is allowed. | {"ConvCourtName": ["Crown Court at Guildford"], "ConvictPleaDate": ["15th October 2004"], "ConvictOffence": ["driving without a licence, failing to report an accident and using a vehicle without insurance", "causing death by dangerous driving", "aggravated vehicle taking whereby death was caused"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["on rearraignment"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Guildford"], "Sentence": ["disqualified from driving for eight years and until he passes an extended retest.", "four years' detention"], "SentServe": ["No separate penalty was imposed as regards any of the other offences"], "WhatAncillary": ["disqualified from driving"], "OffSex": ["he"], "OffAgeOffence": ["16"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["psychological adjustment disorder", "learning difficulties."], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["one of his friends"], "VictimType": ["one of his friends"], "VicNum": ["one of his friends dead and another seriously and permanently injured"], "VicSex": ["He"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["brain injury", "psychological report, Dr Ghadiali"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["risk of him reoffending and causing harm to the public was estimated as being low"], "AggFactSent": ["little or no remorse", "driving without a licence or insurance", "attempt to avoid justice"], "MitFactSent": ["appellant's age."], "VicImpactStatement": ["impact statement"], "Appellant": ["appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeals against both elements of the sentence"], "AppealGround": ["First, it is submitted that both the period of four years' imprisonment and the period of eight years' disqualification were separately manifestly excessive.", "Third, it is suggested that the judge wrongly, and against the weight of the evidence, concluded that the appellant had been showing off", "Fourth, it is argued that in any event this sentence was out of line with the guidelines", "Second, it is contended that the judge failed sufficiently or at all to take into account the following matters: the appellant's age, his previous good character and his timely guilty plea"], "SentGuideWhich": ["section 41 of the Criminal Justice Act 1988.", "section 91 of the Powers of Criminal Courts (Sentencing) Act 2000"], "AppealOutcome": ["the period of custody is reduced by twelve months to three years; the period of disqualification is reduced to five years and the appellant will take an extended retest."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["we are of the view that this sentence, solely on the grounds of that particular personal mitigation, was somewhat too long", "we consider that a period of eight years is significantly out of line with the guidelines"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Crown Court At Guildford"], "ConvictPleaDate": ["2004-10-15"], "ConvictOffence": ["driving without a licence, failing to report an accident and using a vehicle without insurance", "aggravated vehicle taking whereby death was caused", "causing death by dangerous driving"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["on rearraignment"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Guildford"], "Sentence": ["disqualified from driving for eight years and until he passes an extended retest.", "four years' detention"], "SentServe": ["Concurrent"], "WhatAncillary": ["disqualified from driving"], "OffSex": ["All Male"], "OffAgeOffence": ["16"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Had mental health problems", "Learning/developmental"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "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": ["Expert report/testimony", "Medical evidence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Low risk of harm"], "AggFactSent": ["attempt to avoid justice", "little or no remorse", "driving without a licence or insurance"], "MitFactSent": ["appellant's age."], "VicImpactStatement": ["Yes"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeals against both elements of the sentence"], "AppealGround": ["Fourth, it is argued that in any event this sentence was out of line with the guidelines", "Third, it is suggested that the judge wrongly, and against the weight of the evidence, concluded that the appellant had been showing off", "Second, it is contended that the judge failed sufficiently or at all to take into account the following matters: the appellant's age, his previous good character and his timely guilty plea", "First, it is submitted that both the period of four years' imprisonment and the period of eight years' disqualification were separately manifestly excessive."], "SentGuideWhich": ["section 91 of the Powers of Criminal Courts (Sentencing) Act 2000", "section 41 of the Criminal Justice Act 1988."], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["we are of the view that this sentence, solely on the grounds of that particular personal mitigation, was somewhat too long", "we consider that a period of eight years is significantly out of line with the guidelines"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 43 |
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2022] EWCA Crim 1310
Nos. 202202229 A3;
202202230 A3
Royal Courts of Justice
Wednesday, 14 September 2022
Before:
LORD JUSTICE SINGH
MR JUSTICE FRASER
MR JUSTICE HENSHAW
REX
V
JOSHUA ANTHONY KEHOE (AKA YATES)
GEORGE HARPER
ATTORNEY GENERAL'S REFERENCE:
Under Section 36 Of The Criminal Justice Act 1988
__________
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_________
MR J DUFFY
appeared on behalf of the First Respondent
MR K SUTTON
appeared on behalf of the Second Respondent
MR B HOLT
appeared on behalf of the Solicitor General
________
JUDGMENT
LORD JUSTICE SINGH:
Introduction
1
This is an application on behalf of His Majesty's Solicitor General for permission to refer two sentences which are regarded as being unduly lenient under s.36 of the Criminal Justice Act 1988 ("the 1988 Act").
2
The principles to be applied on such an application are well established and have been summarised as follows:
(1) The judge at first instance is particularly well placed to assess the weight to be given to competing factors in considering sentence.
(2) A sentence is only unduly lenient where it falls outside the range of sentences which the judge at first instance might reasonably consider appropriate.
(3) Leave to refer a sentence should only be granted by this court in exceptional circumstances and not in borderline cases.
(4) Section 36 of the 1988 Act is designed to deal with cases where judges have fallen into gross error: see, for example,
Attorney General Reference (Azad)
[2021] EWCA Crim 1846, [2022] 2 Crim App R (S) 10 at para.72 in the judgment given by the Chancellor of the High Court.
3
In the present case, on 15 June 2022 at the Crown Court at Liverpool, HHJ Bond sentenced George Harper to a total of two years and eight months' imprisonment and Joshua Kehoe to a total of four years' imprisonment. Harper had pleaded guilty to five offences on the indictment. Kehoe pleaded guilty to four offences on the same indictment. There was one count, Count 5, which concerned only Harper. The other matters were to lie on the file in the usual way.
4
The lead offence in this case was an offence of causing grievous bodily harm with intent contrary to s.18 of the Offences Against the Person Act 1861. That was the subject of Count 2. Count 3 was an offence of causing grievous bodily harm contrary to s.20 of the 1861 Act. The judge imposed a sentence on Harper of four months' imprisonment made concurrent and a sentence of four months on Kehoe. Count 4 was an offence of assault occasioning actual bodily harm contrary to s.47 of the 1861 Act. The judge imposed a sentence of six months on each defendant made concurrent. Count 5, as we have said, concerned only Harper. This was an offence also under s.47. The judge imposed a concurrent sentence of six months. Count 7 was another offence of assault occasioning actual bodily harm. The judge again imposed concurrent sentences of six months on each defendant.
The Facts
5
In summary, the case arose from a violent incident in a public house during the early hours of Sunday, 13 May 2021. A number of people were assaulted, including the landlord, Mr John Lunt. He suffered, amongst other injuries, a fractured skull. That assault was the subject of Count 2. A Mr Gledhill suffered a dislocated shoulder. That was the subject of Count 3. A Mr McSweeney-Forrester suffered a cut on his head which required stitches. That was the subject of count 4. A Mr Anthony received a black eye. That was the subject of Count 5. Finally, a Mr Clark-Royal was also assaulted and suffered concussion. That was the subject of Count 7.
6
The facts are set out in more detail in the final reference at para.12 to 41 and we will summarise the essential facts.
7
On the evening of Saturday, 29 May 2021 the landlord of the Manor Farm Public House in Rainhill Hill, Merseyside had arranged for a party to take place. There were no incidents during the course of that evening. The offenders arrived in the company of a third man, who did not get involved in the violence which ensued, shortly after 11.00 pm. They were dressed in a way which was consistent with their being door staff. They spoke with Mr Lunt, the landlord of this pub, and said they had been working the door at an event at Rainhill Hall. They asked if they could work the door at this pub in future. Mr Lunt told them that he was happy with his present door staff and did not require their assistance. The conversation was amicable.
8
Later on a disagreement ensued. It is not necessary for present purposes to go into the details of that. It should be noted, however, that this led to Kehoe being told to leave, but he stood his ground. He made various threats. He said to Mr Lunt that he would "terror" the pub. He said that he was "Going to do [him] in". A member of staff, Sarah Bowers, approached Kehoe. She put her arms around him. She said "Just come with me and we can talk about it outside," but Kehoe continued to shout. However, he did go with Ms Bowers and left the pub. The assistant manager, Scott Carter, a friend of Mr Lunt, Stephen Gledhill and Harper also left the building. Mr Gledhill stood in the doorway. Mr Lunt joined them. They were observing to see if Kehoe and Harper would leave the premises. Kehoe walked over to Mr Lunt. Mr Lunt said that he was going to check the CCTV. If it showed that nothing had been taken [that was a reference to their earlier argument], he would apologise. Kehoe replied, "Just give me £500". Harper walked over to Mr Gledhill and said, "Do you want a fight?" Kehoe then punched Mr Gledhill, but the punch missed. However, he threw a second punch, which struck Mr Gledhill's left ear. Mr Gledhill fought back, head-butting his attacker in the face. Both Mr Gledhill and Kehoe threw punches at each other. Harper tried to grab Mr Gledhill who was able to fend him off. However, he was then overpowered and forced to the floor. He was punched and kicked. This was inside the pub close to the office and was the subject of Count 3.
9
Mr Lunt tried to intervene. He pinned Kehoe against a wall. Harper elbowed him in the left temple. Mr Lunt was stunned and let go of Kehoe. Harper then targeted a Mr Jack Anthony, who was a customer of the pub. He described Harper as "snarling". Harper threw a flurry of punches, hitting Mr Anthony in the face and causing his glasses to fall off. Mr Anthony thinks that he may have been concussed. He recalled at one moment being at the top of the stairs and subsequently at the bottom. That was the subject of Count 5.
10
Kehoe and Harper then left the building. Kehoe was escorted by a Mr Jake Clark-Royal. This part of the incident was captured on CCTV footage, which we have viewed, as we have the rest of the CCTV footage which is available. Mr Clark-Royal let go of Kehoe. At that point, Kehoe punched him in the face. This caused him to fall to the floor. Kehoe kicked him twice in the vicinity of his head. Harper crouched over Mr Clark-Royal and punched him once. This was subject of Count 7. Mr Lunt was shouting, "Leave him alone".
11
Kehoe and Harper then forced their way back into the pub. Mr Carter tried to close the door. However, they forced it open. The offenders left Mr Clark-Royal apparently unresponsive on the floor outside the building. At that point, we should mention, as we have said, that we have viewed the CCTV footage of events on the night of the incident. The violence shown on it would shock any reasonable person. For example, in the incident which we are currently describing the offenders hit Mr Clark-Royal while he was on the ground, leaving him prone and still. They showed a callous disregard for his welfare as they returned to the pub to carry on assaulting other people.
12
Both offenders then targeted Mr Lunt. Kehoe punched Mr Lunt hard in the face. He continued to punch him. The attack caused Mr Lunt to fall to the floor. Kehoe stood over Mr Lunt. He was shouting, "You lot have caused this accusing me of stealing money. You now owe me £500. I want my £500 now or I am going to tear you apart." Harper was holding Sarah Bowers who was begging them to stop. Mr Lunt said, "I will get you your £500. Just get out of my face and I will go and get it for you". Mr Lunt got off the floor and walked towards the office. As he did so, he noticed a number of people, both staff and customers. He advised them to lock themselves in the toilets. Mr Lunt opened the safe and counted out £500.
13
Whilst Mr Lunt was in the office getting the money, Kehoe grabbed a Mr Hannon. He dragged him through the bar area and to the till. He said "Get me £500 out of that till before I stab you". Mr Hannon was terrified. He said there was no money in the till. He said he would have to go upstairs to get it. At this point, Harper got in between them. Mr Hannon left the bar area and went upstairs to the office and saw Mr Lunt. Mr Lunt told Mr Hannon to wait in the office and he would get rid of the offenders by giving them the money. Kehoe went behind the bar and took a bottle of wine from the fridges at the back of the bar area. Harper was scuffling with a customer called John Ashton who was standing at the bar. Kehoe struck Mr Ashton with the bottle. Harper threw a punch at Mr
McSweeney-Forrester, who was on crutches at the time. This did not connect. Kehoe then joined in the assault, hitting Mr McSweeney-Forrester with a bottle. That was subject of Count 4.
14
As Mr Lunt returned, he saw Kehoe with the bottle in his hand and said "I'm the one you want. Come to me and leave the kids alone". He was holding the £500. Kehoe proceeded to strike Mr Lunt with the bottle in the face. This knocked him to the floor. Kehoe tried to grab the money. Both males then kicked Mr Lunt as he lay on the floor. That was the subject of Count 2. Mr Lunt recalls letting go of the money and losing consciousness. However, when he regained consciousness, he could see the money lying on the floor around him.
15
Following these assaults, the offenders left the pub, Kehoe still holding the wine bottle. A male was present outside. He can be seen on the CCTV footage with his hands up. Kehoe threatened him with a bottle. Harper punched him in the head. Both offenders then left the area.
16
We turn briefly to the injuries which resulted. In particular, we must note that Mr Lunt suffered a fractured skull, a fractured nose, a fractured left cheekbone and other various small injuries. Mr Gledhill suffered a dislocated shoulder that required surgery to repair. Mr McSweeney-Forrester required three stitches to a cut on his head. Mr Anthony was concussed and had a black eye and soreness to his eye socket. He had a CT scan, but did not require further treatment. Finally, we note that Mr Clark-Royal had a CT scan but required no further treatment. He felt sick and faint for a few days.
The Sentencing Process
17
Harper was born on 27 November 1991 and was aged 30 at the date of sentence. He had no previous convictions, although he did have a previous caution for possession of cannabis.
18
Kehoe was born on 23 July 1993 and was aged 28 at the date of sentence. He has 16 convictions for 20 offences, including battery. There had been previous offences of violence against his mother, stepfather and a previous partner, although it should be noted that he had not previously served a custodial sentence.
19
The pre-sentence report in respect of Harper assessed him as posing a low risk of re-offending, but posing a high risk of harm to the public. It was noted that he had accepted responsibility for the offending, expressed regret and there had been no repeat of his behaviour in the 12 months since the offences had taken place.
20
The pre-sentence report in relation to Kehoe assessed him as posing a medium risk of reconviction and posing a high risk of serious harm to the public in general of physical violence. There was a psychological report on Kehoe dated 8 June 2022. This said that the offender presented with "severe symptomatology related to ADHD".
21
The judge also had the advantage of character references in relation to the two offenders, as well as victim personal statements, which set out the continuing impact on each of the five victims. It should particularly be noted that in the case of Mr Lunt and his partner, Samantha Casey, they lost their home as a consequence of his losing his job at the pub.
22
By reference to the relevant guidelines, the judge concluded that the most serious offence, Count 2, fell into Category 3 harm and Category B culpability. That led her to a starting point of four years' custody with a range of three to six years. That was of course before taking account of guilty pleas. The judge gave full credit for those, so the sentence after trial would have been six years on the most serious count, the s.18 offence. The judge made the other sentences concurrent, as she was entitled to do, although it was then necessary to have regard to the principle of totality so as to ensure that the total sentence was just and proportionate and reflected the overall gravity of the offending taken as a whole.
Submissions for the Solicitor General
23
On behalf of the Solicitor General, it is submitted by Mr Holt that the judge passed a sentence which was unduly lenient. Although the structure of a sentence is matter for the judge, it is submitted that consecutive sentences were appropriate in this case. Even if that is not accepted, it is submitted that having decided to impose concurrent sentences, the judge ought to have increased the sentence for the lead offence to reflect the overall offending. Complaint is also made that the issue of dangerousness was not addressed by the judge at all. It is recognised on behalf of the respondent offenders that it should have been, because there were a number of specified offences which had been committed.
24
Turning to Mr Holt's more detailed submissions, he notes that there was a statutory aggravating factor; namely, that the offences were committed against people who were providing a service to the public. In addition, Kehoe had relevant previous convictions. A further aggravating feature was that the offences were committed whilst the offenders were under the influence of alcohol and drugs. It is also submitted that although the individual assaults were relatively short lived the overall incident was prolonged and the violence was persistent and directed at multiple people who were present.
25
On the other side of the balance it is acknowledged that there were mitigating features, in particular Harper's lack of previous convictions and the fact that he had recently suffered a traumatic bereavement. There were also some mental health issues in respect of Kehoe. It is also acknowledged that it could be said that both offenders had shown remorse during the course of the pre-sentence report.
26
No issue is taken before this court that it was appropriate for there to be full credit given for the early guilty pleas in this case. It is however submitted that the judge should have placed the s.18 offence into either Category 2A or at the least the upper end of Category 2B. There was a weapon used. This indicated higher culpability. Further, it is submitted that it was a prolonged and persistent assault. It is also submitted that Mr Lunt was particularly vulnerable because he was on the floor when he was kicked, having been struck by a bottle. The assault then continued with kicks and punches. Further, it is submitted that the injuries of Mr Lunt can properly be described as "grave". He received a fractured skull, a broken nose and a fractured cheekbone. He required a hospital stay of four days. It is also submitted that there was a further aggravating feature in that the victim was caused to move home as a result of the attack.
27
It is noted that there were five offences of violence committed against five different victims by Harper over the course of a ten-minute incident. Kehoe committed four offences of violence against four victims.
28
In relation to dangerousness, it is submitted that both offenders were assessed as posing a high risk of serious harm to the public. In the case of Kehoe in particular it was necessary for the judge to address the issue of dangerousness, because he had a relevant previous conviction for violence. He had, moreover, been responsible for the majority of the violence in this case. We are reminded that a sentencing judge has an obligation under s.52(2) of the Sentencing Act 2020 ("the Sentencing Code") to explain why they have come to the conclusion that an offender has not satisfied the criteria for dangerousness. It is acknowledged that this court will be reluctant to interfere with findings in relation to dangerousness where a judge has correctly applied the relevant principles: see
R v Johnson
[2006] EWCA Crim 2846, at para.11, in a judgment given by the then President of the Queen's Bench Division. However, it submitted that in the present case the judge failed to address the issue of dangerousness at all.
Submissions on behalf of Kehoe
29
On behalf of Kehoe it is acknowledged by Mr Duffy that the total sentence passed was lenient, but it is submitted that it was not unduly so. In relation to the first main ground of complaint, it is submitted that the offence was properly categorised as being of medium culpability and medium harm. The weapon used, the bottle, was not a highly dangerous weapon so as to elevate the culpability any higher than Category B. So far as harm is concerned, the judge was entitled to regard the harm as falling within Category 3. The victim sustained a really serious injury, but once it was treated, it did not require further surgery. The injuries were not permanent or irreversible. Mr Duffy has also emphasised at the hearing before us that in his submission the assault on Mr Lunt should not be regarded as being persistent and prolonged. Although the entire incident on the night took about ten minutes, he points out that there were several separate incidents. Even the incidents concerning Mr Lunt himself were relatively short in duration and were separated by about a minute. He accepts that there were repeated assaults on Mr Lunt, at least two, but does not accept that that was prolonged and persistent conduct.
30
In relation to the second ground of complaint, it is submitted that the judge in substance increased the notional sentence on Count 2 up to six years before taking account of the guilty pleas from a starting point in the definitive guideline of four years. In those circumstances, it is submitted she was then entitled to say that the other sentences should be made concurrent. In relation to the issue of dangerousness, it is accepted that the judge should have addressed this, but it is submitted that if she had considered it she would have been unlikely to conclude that the offender Kehoe was dangerous. In any event, it is submitted that the finding of dangerousness ought not to be made by this court for the following reasons:
(1) The offender's previous convictions were comparatively less serious and do not demonstrate a propensity for serious violence. At the hearing before us, Mr Duffy has emphasised the length of time which had elapsed since those earlier offences had taken place. He has also emphasised that in the 12 months since the offences took place and when sentence was passed Kehoe had not committed further offences.
(2) The references that were submitted demonstrated a different more positive side to Kehoe's characters.
(3) The offender had expressed remorse.
(4) The conclusions in the report by Professor Hope indicate that in her opinion the defendant does not present as a perpetually violent person and his actions on the night in question were probably as a result of a combination of his consumption of alcohol and his ADHD.
31
Finally, appearing before us, Mr Duffy has submitted that even if this court were to conclude that Kehoe is dangerous, the court nevertheless has a discretion whether to impose any different type of sentence. In particular, he submits that an extended sentence is not necessary in this case.
Submissions for Harper
32
In relation to the first ground of complaint, it is submitted by Mr Sutton that on balance it was open to the judge to conclude that Harper's conduct fell into Category B culpability. It is accepted that there was the Category A factor present, that the attack on Mr Lunt could be considered to be prolonged or persistent. However, it is submitted that he was not vulnerable prior to the overall attack taking place and that it would be double counting to include the fact that he was placed in a vulnerable position while the attack continued. Further, the weapon used was not a highly dangerous one. Harper's role was in any event a lesser one in the activity, as the Solicitor General acknowledges. In relation to harm, it is submitted by Mr Sutton that the injury to Mr Lunt was not grave and that the injury to his nose was not irreversible.
33
Furthermore, it is submitted there were significant mitigating factors in the case of Harper:
(1) The absence of previous convictions and particularly any convictions for violence.
(2) His genuine remorse.
(3) The positive good character evidenced by references.
(4) A recent bereavement which had contributed to his acting in a way that was completely out of character.
34
In relation to the second main ground of complaint, it is accepted that Harper faced an additional offence (Count 5) but it is not accepted that in the overall circumstances this would have resulted in any appreciable differences in the respective sentences for the following reasons:
(1) Count 5 related to a s.47 assault.
(2) No issue is taken by the Solicitor General that the offence was correctly placed into Category C3.
(3) The Solicitor General accepts that it was Kehoe who was responsible for the majority of the violence.
(4) The correct starting point was adopted by the judge, namely a starting point of a medium Community Order with a range in band B5 up to 26 weeks' custody.
35
In relation to the third ground of complaint, it is accepted that the judge ought to have addressed the issue of dangerousness, but it is submitted that Harper does not meet the criteria for such a finding for the following reasons:
(1) The lack of previous convictions or any indication of having a propensity to use unlawful violence.
(2) His positive good character.
(3) His genuine remorse.
(4) His acceptance of responsibility for his actions.
(5) The absence of any recurrence of any misconduct and particularly unlawful violence in the 12 months since these offences.
(6) The fact that he was assessed as posing a low risk of reoffending in the pre-sentence report.
Our Assessment
36
We have reached the conclusion that the sentences passed in this troubling case were unduly lenient. We have also reached the conclusion that in the case of Kehoe a finding should have been made that he is a dangerous offender and an extended sentence imposed on him in order to protect the public.
37
We do not accept the submission for the Solicitor General that consecutive sentences were required in this case. The structure of the sentence was a matter for the judge, but having decided to make the sentences concurrent, it was then necessary to have a very substantial uplift in the sentence passed for the lead offence. Even taking that offence by itself, we are persuaded by the submissions for the Solicitor General that it was sufficiently serious that it needed to be placed in Category 2A. In our view, the harm caused to Mr Lunt was indeed "grave". Further, the culpability was high. Apart from the other factors, this was in our view a prolonged and persistent attack. That would have given a starting point of seven years' custody with a suggested range of six to 10 years. Having regard to the aggravating factors in this case, a sentence at the top of that range was possible at least in the case of Kehoe who had previous convictions for violence. An uplift was then required to reflect the fact that the other sentences were made concurrent.
38
In our judgment, the custodial term after trial should have been one of 12 years in the case of Kehoe and eight years in the case of Harper. After giving full credit for the guilty pleas, that should have led to a custodial term of eight years for Kehoe and five years and four months for Harper, but we are satisfied that in the case of Kehoe there had also to be a finding of dangerousness. This is in particular because he had previous convictions for violence, albeit nothing as serious as on this occasion. We have had regard to all of the circumstances of the case in accordance with s.308 of the Sentencing Code. We recognise that we then have a discretion whether to impose an extended sentence or even a more serious sentence in the light of that finding. In our judgment, an extended sentence does need to be imposed in the case of Kehoe. We consider that there should be an extension period of four years. That makes a total sentence in his case of 12 years, comprising a custodial term of eight years and an extended licence period of four years.
Conclusion
39
For the reasons we have given, we grant this application by the Solicitor General to refer the sentences to this court under s.36 of the 1988 Act. On that reference, we substitute the following sentences for those imposed in the Crown Court. In respect of Count 2, that is the s.18 offence, in the case of Kehoe there will be an extended sentence comprising a custodial term of eight years and an extension period of four years. In the case of Harper, there will be a determinate sentence of five years and four months. We leave the other sentences as they were, since they are concurrent to the main sentence.
__________ | {"ConvCourtName": ["data not available"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["grievous bodily harm with intent", "assault occasioning actual bodily harm"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Harper had pleaded guilty", "Kehoe pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Liverpool"], "Sentence": ["In the case of Harper, there will be a determinate sentence of five years and four months.", "total of four years' imprisonment.", "in the case of Kehoe there will be an extended sentence comprising a custodial term of eight years and an extension period of four years.", "sentence of six months on each defendant made concurrent", "total of two years and eight months' imprisonment"], "SentServe": ["concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["30", "28"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["home"], "OffMentalOffence": ["ADHD."], "OffIntoxOffence": ["offenders were under the influence of alcohol and drugs."], "OffVicRelation": ["customer of the pub."], "VictimType": ["Mr John Lunt.", "people were assaulted"], "VicNum": ["Mr Clark-Royal", "Mr Gledhill", "Mr Anthony", "Mr McSweeney-Forrester", "Mr John Lunt."], "VicSex": ["Mr"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["landlord"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["suffered, amongst other injuries, a fractured skull.", "CCTV"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["high risk of serious harm", "high risk of harm to the public", "medium risk of reconviction", "low risk of re-offending"], "AggFactSent": ["previous caution for possession of cannabis.", "16 convictions for 20 offences, including battery.", "carry on assaulting", "weapon", "violence shown"], "MitFactSent": ["good character", "no previous convictions,", "expressed remorse.", "genuine remorse.", "expressed regret and there had been no repeat of his behaviour", "absence of previous convictions", "out of character."], "VicImpactStatement": ["victim personal statements,"], "Appellant": ["ATTORNEY GENERAL'S REFERENCE"], "CoDefAccNum": ["JOSHUA ANTHONY KEHOE (AKA YATES)GEORGE HARPER"], "AppealAgainst": ["two sentences which are regarded as being unduly lenient", "two sentences"], "AppealGround": ["unduly lenient under s.36 of the Criminal Justice Act 1988"], "SentGuideWhich": ["s.47 of the 1861 Act.", "s.308 of the Sentencing Code.", "principle of totality", "s.36 of the Criminal Justice Act 1988 (\"the 1988 Act\").", "s.18 of the Offences Against the Person Act 1861", "definitive guideline"], "AppealOutcome": ["substitute the following sentences"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["consecutive sentences were appropriate in this case."], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["data not available"], "ConvictPleaDate": ["Don't know"], "ConvictOffence": ["grievous bodily harm with intent", "assault occasioning actual bodily harm"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes", "Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court At Liverpool"], "Sentence": ["sentence of six months on each defendant made concurrent", "Kehoe", "Harper", "in the case of Kehoe there will be an extended sentence comprising a custodial term of eight years and an extension period of four years.", "Outcome sentence appellant1"], "SentServe": ["Concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know", "30", "28"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know", "Fixed Address"], "OffMentalOffence": ["Learning/developmental"], "OffIntoxOffence": ["Yes-drinking&drugs"], "OffVicRelation": ["Stranger"], "VictimType": ["Individual person", "Individuals"], "VicNum": ["2 of 5", "5 of 5", "4 of 5", "3 of 5", "1 of 5"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Employed"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Medical evidence", "CCTV"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["High risk of harm", "Low risk of reoffending", "High risk of harm", "Medium risk of reoffending"], "AggFactSent": ["weapon", "Previous convictions", "previous caution for possession of cannabis.", "carry on assaulting", "violence shown"], "MitFactSent": ["out of character.", "good character", "genuine remorse.", "absence of previous convictions", "expressed remorse.", "expressed regret and there had been no repeat of his behaviour", "no previous convictions,"], "VicImpactStatement": ["Yes"], "Appellant": ["Attorney General"], "CoDefAccNum": ["1"], "AppealAgainst": ["two sentences", "Sentence (is unduly lenient)"], "AppealGround": ["unduly lenient under s.36 of the Criminal Justice Act 1988"], "SentGuideWhich": ["s.308 of the Sentencing Code.", "definitive guideline", "principle of totality", "s.36 of the Criminal Justice Act 1988 (\"the 1988 Act\").", "s.47 of the 1861 Act.", "s.18 of the Offences Against the Person Act 1861"], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["consecutive sentences were appropriate in this case."], "ReasonDismiss": ["data not available"]} | 107 |
No:
200702819/C1
Neutral Citation Number:
[2007] EWCA Crim 1914
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London WC2
Date:
Wednesday, 18th July 2007
B E F O R E:
LORD JUSTICE LATHAM
(VICE PRESIDENT OF THE CACD)
MR JUSTICE GRIFFITH WILLIAMS
MR JUSTICE KING
- - - - - - -
R E G I N A
-v-
STEPHEN EDWARD BIRCH
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
A Merrill Communications Company
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR P ANDREWS
appeared on behalf of the APPLICANT
MR N WILLIAMS
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
THE VICE PRESIDENT: On 9th October 2006 in the Crown Court at Chester, the applicant pleaded guilty to committing an act of outraging public decency. On 30th October 2006 he was sentenced to 3 years' imprisonment. He makes application in effect to vacate his plea and for leave to appeal against the conviction which has been referred to the Court by the Registrar.
2.
The circumstances which gave rise to the charge were that in the early hours of the morning of 24th July 2006, the applicant was captured on closed circuit television with his penis exposed, masturbating at a bus stop in Chester. As he was doing so a woman walked past. The applicant was thereafter tracked on closed circuit as he followed the woman through the city centre. It was clear that he was attempting to ensure that the woman did not notice that she was being followed. At one point he took out his penis from his trousers as he was following her. He was seen to hide in shop doorways.
3.
The person who was viewing the CCTV was clearly concerned that this might have been the precursor to an attack. Fortunately a police vehicle came into view at one point and eventually the police arrested the applicant. The woman herself was never traced and we hope was unaware of the pursuit.
4.
The application before us today is based simply and solely on the proposition that the only person who saw the acts which are said to have been acts outraging public decency was the person who was viewing the matter on the CCTV and that it is settled law, as recognised by this Court in
Rose v Director and Public Prosecution
[2006] EWHC 852, that an essential element of the offence is that the public should have been outraged, not simply one individual.
5.
The courts have consistently applied the rule to that effect by stating that what must be proved is that more than one person could have seen the act which is said to have outraged public decency.
6.
The evidence on the CCTV camera footage, it is said, does not support the proposition that anybody other than the viewer of the CCTV pictures could have seen what this applicant did. That submission is wholly unrealistic. This was the middle of Chester, at a time when undoubtedly people were passing. Whether they in fact saw this appellant masturbating, or when he exposed his penis at the later stage is not a matter which has to be established in order for the prosecution to succeed. He was masturbating in a situation where, although the bus stop is one where one side of it obscured, was otherwise open to public view and we know people were in fact in the vicinity. Quite apart from that, it seems to us to be unrealistic to say that the woman herself was not somebody who was capable of having seen what he did at either of the points about which complaint is made. We do not consider that the material before this Court could in any way justify the conclusion that the plea was one which should be vacated. In those circumstances the application is refused. | {"ConvCourtName": ["Crown Court at Chester"], "ConvictPleaDate": ["9th October 2006"], "ConvictOffence": ["outraging public decency"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Chester"], "Sentence": ["3 years' 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": ["a woman walked past"], "VictimType": ["a woman"], "VicNum": ["a woman"], "VicSex": ["woman"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["police", "CCTV"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["open to public view"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["APPLICANT"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["leave to appeal against the conviction"], "AppealGround": ["an essential element of the offence is that the public should have been outraged, not simply one individual"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["application is refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["We do not consider that the material before this Court could in any way justify the conclusion that the plea was one which should be vacated"]} | {"ConvCourtName": ["Crown Court At Chester"], "ConvictPleaDate": ["2006-10-09"], "ConvictOffence": ["outraging public decency"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Chester"], "Sentence": ["3 years' 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 Female"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["CCTV", "Police evidence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["open to public view"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Other"], "AppealGround": ["an essential element of the offence is that the public should have been outraged, not simply one individual"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["We do not consider that the material before this Court could in any way justify the conclusion that the plea was one which should be vacated"]} | 522 |
No:
201802290 A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2019]EWCA 506 (CRIM)
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 21 March 2019
B e f o r e
:
LORD JUSTICE FLAUX
MR JUSTICE WILLIAM DAVIS
SIR BRIAN KEITH
R E G I N A
v
JACK DIAMOND
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 T Smith QC
appeared on behalf of the
Appellant
Mr D Connolly
appeared on behalf of the
Crown
J U D G M E N T
(Approved)
LORD JUSTICE FLAUX:
1.
On 13 April 2018, in the Crown Court at Maidstone before His Honour Judge Statman, the appellant pleaded guilty to three counts of causing death by dangerous driving and one count of causing serious injury by dangerous driving. On 8 May 2018, he was sentenced by the same judge to seven and a half years' imprisonment concurrent on each of the counts of causing death by dangerous driving and 3 years' imprisonment
concurrent on the count of causing serious injury by dangerous driving, a total of seven and a half years' imprisonment. The judge also imposed a period of disqualification from driving of 7 years. He now appeals against sentence with the leave of the single
judge.
2.
The facts of this tragic incident can be summarised as follows. On the evening of 23 September 2017, the appellant, then aged 29, had been to two public houses in the Hawkhurst area with two work colleagues, Stephen Jones and Roy Little, and two teenagers, Chelsea-Rose Betts, aged 16, and her brother, Billy Bartley, aged 13. They were all friends. The appellant was the driver of the car in which they travelled, a Volvo Estate, but despite being the driver, he was drinking alcohol.
3.
There were witnesses who spoke of his having driven away from the first pub erratically and too fast, but the appellant made no admissions about this in his basis of plea, and Billy Bartley, who provided the police with an ABE interview, did not refer to this, so that, in sentencing the appellant, the judge fairly took into account only his driving on leaving the second pub, The Oak and Ivy on Rye Road in Hawkhurst, sometime around 9.30 pm. A witness at that pub described how, as it pulled away, the car was being
driven fast and erratically with a spin of the wheels.
4.
Another witness was driving in the opposite direction shortly before the impact occurred. She described driving towards Hawkhurst on the A268 Rye Road. It was a dry night with no street lighting at the relevant part and it was dark. She saw headlights coming from the opposite direction and she could see from the position of the headlights that the car was near enough on her side of the road. It was coming towards her quite fast and she said that the headlights appeared to be on full beam. She slowed down, not knowing what else to do as it was coming towards her so fast. As it passed her she could see that it was a red car but it was driving too fast for her to determine what type of car. She described how her own car made a little wobble as the other car went past. She estimated its speed as being between 50 and 60 miles an hour and there were no other
cars on the road.
5.
Billy Bartley said in his ABE interview on 18 October 2017 that there was nothing wrong with the appellant's driving at the start of the evening. It was only after going to the one pub and then to the next, that Billy Bartley became concerned and then very concerned about the way the vehicle was being driven. He did say that on previous occasions when he had been in the car the appellant had driven responsibly. He said that the driving was
only fast from the last pub.
6.
Stephen Munroe was a driving instructor of 25 years' experience. At 9.30 pm he pulled up at his house on Rye Road and heard the sound of a car being driven at high speed. He saw the lights of a car coming round the bend some 150 to 200 yards away and as the car came round the corner he observed the noise from it momentarily stopped, which was consistent with it being airborne, but he then heard a loud noise of the tyres hitting the road and screeching before he heard a thud followed by silence. From his experience he could tell that the vehicle was being driven at excessive speed.
7.
WPC Rachael Barker was the first police officer on the scene, having been flagged down by members of the public. She saw the vehicle on its side on the pavement. Billy Bartley was lying on the ground outside the car with a head injury. She observed petrol on the ground and she ascertained that there were two adults within the vehicle. The appellant was conscious and able to speak. The female was also conscious at that time. When the appellant was removed from the vehicle, he said, "I swerved for a car on the
corner".
8.
Mr Little and Mr Jones died at the scene and Chelsea-Rose Betts sadly died of her injuries in hospital 3 days later. Billy Bartley sustained a number of injuries. A CT scan revealed a pneumothorax, a lung laceration, three rib fractures and a fractured collarbone. He had a laceration to his scalp, two lacerations to his tongue and bruising
to the chest wall. He was in hospital for 3 days, of which 2 days were in intensive care.
9.
A forensic collision investigation by the police indicated that the accident had occurred at a location where the road bends to the left with a slight incline of 5 per cent. It was a single carriageway with a white painted double line. There was no street lighting and the speed limit was 40 miles an hour. The car, when examined, was severely damaged and deformed, the main impact being to the roof, which was consistent with it striking the kerb with the nearside wheels, and from the reconstruction it would appear the vehicle was travelling around a left-hand bend, harsh steering or braking was applied, causing it to rotate clockwise across the road. By the time it reached the offside kerb it had rotated far enough so that its nearside wheel struck the kerb, which was the most likely cause of
the car tipping onto its nearside, whereupon it collided roof first with a brick wall.
10.
The investigation could not establish the pre-impact speed, although based upon damage to the car it was likely to be in excess of 40 miles an hour and from witness descriptions
it was likely that the vehicle became airborne over the crest of the road. The expert's opinion was that a vehicle being driven within the speed limit would not have left the road, nor would it have had any difficulty in negotiating the bend. It appeared likely that the driver overreacted to an actual or perceived loss of control while negotiating the left-hand bend and he either braked or steered harshly towards the right or both. That caused the vehicle to yaw clockwise and to cross to the opposing lane, where it struck the kerb and overturned. The expert found there were no contributory road, vehicle or weather factors save that the rear offside tyre had a slow puncture, which would not have been discernible when being driven on a straight road but it was possible that it had a noticeable adverse effect on a bend.
11.
The appellant provided a sample of blood and was found to be over the legal drink drive limit. He was found to have 87 micrograms of alcohol in 100 millilitres of blood, where the legal limit is 80 micrograms, but the test was not performed immediately after the collision, but only some 5 hours later and it not been possible in the circumstances to
make a precise calculation as to the effect on the blood.
12.
The appellant was interviewed. He said he had drunk a moderate amount of alcohol and he did not think it affected his driving. He said he knew the road where the collision had occurred very well. He claimed that he was driving within the speed limit and said he could not understand how the collision had occurred. He denied that he had been
driving too fast or had driven erratically at any stage of the evening.
13.
The appellant was born on 14 June 1987 and was of previous good character with no previous convictions and he had a clean full driving licence and proper insurance for the car.
14.
He pleaded guilty at the PTPH on a written basis of plea which admitted that he was over the legal limit at the time of driving. He accepted driving away from the Oak and Ivy too fast and that, once on the main road, he was driving in excess of the 40 mile an hour limit. As he approached the bend he was at a speed at or around 50 miles an hour and he appeared to have misjudged the corner and swerved. As a consequence, he tried to correct the position of the car but the rear had swerved dramatically to the left. As it swerved, and either before or as a consequence of hitting the pavement, the car went airborne, before rolling onto its side, coming to rest in the direction it had been driven from. He accepted that had he been driving within the speed limit he should have been able to negotiate the corner.
15.
The basis of plea also stated that the car had passed its MOT a few weeks before the accident. It had no obvious defect that would have contributed to the accident. However, examination of the car in the immediate aftermath of the accident indicated that there was a slow puncture to the rear offside tyre and the pressure was 16 PSI when it was recommended to be 29 PSI. There was nothing to suggest that the appellant should have been aware of the deflation prior to the accident. Forensics had noted that the reduced pressure on the tyre could have had an adverse effect on the ability to control the vehicle. During his interview, the appellant had said that the characteristics of the car felt different on the corner and he remembered the back end losing control and forensics said it was possible he was describing the effects of the underinflated tyre. At the conclusion of the forensic report it had stated that the rear offside tyre may have
adversely affected the handling characteristics of the car.
16.
There were victim impact statements before the judge from Mr Little's mother, Mr Jones' mother, and Chelsea-Rose Betts' mother and grandmother. We have also read these. They speak movingly of the terrible impact of the deaths of Mr Little, Mr Jones and Miss Betts on their families.
17.
In careful and sensitive sentencing remarks, the judge referred to the fact that the appellant had been drinking alcohol at the two pubs they visited that night. He said that, looking at it in its most favourable light to the appellant, on the occasion when he left the second pub it became clear to those in the vicinity, as well as to Billy, who was one of his passengers, that his car was being driven in a dangerous manner. The speed limit on the road he was driving was 40 miles an hour and on any view of his speed it was at least 50 miles an hour, so he was driving having taken alcohol and above the speed limit. There were witnesses who saw him drive who described his driving as being unacceptable. It would seem, he said, from Billy's account that there had effectively been a change in the manner in which the appellant was driving. The consequences of that driving had been
catastrophic: three people killed and Billy seriously injured.
18.
The judge referred to the forensic investigation report and noted in particular that the report stated that it was likely that the driver overreacted to an actual or perceived loss of control. Those words, "actual or perceived loss of control", the judge regarded as significant, particularly when one bore in mind that he was someone who had taken alcohol in the course of the evening. There were no contributory road, weather or vehicle factors other than the slow puncture. It was a possibility that that had had some adverse effect in the course of his driving around the bend and one which was accepted,
in fairness to him, would not necessarily have been noticeable on a straight road.
19.
The judge referred to the letters which the appellant had written to the families of the deceased and various testimonials and he concluded that the appellant was genuinely remorseful for what he had done. He referred to the appellant's previous good character and good driving record and he accepted that what he did that evening would be with him
for the rest of his life. However, the judge said that it was important to emphasise that Billy, Chelsea's brother, had had to live through the crash and come to court in circumstances where his sister had been taken from him. Also the court bore in mind the grief of Chelsea's mother. It was particularly significant that no-one had had a chance to
say goodbye. That was a very great tragedy.
20.
The judge said this was not a case where the defendant had set out in the morning with evil and malice in mind, intent upon causing death, but it was absolutely impossible to quantify the loss which had been sustained by the families, where three people were killed and one seriously injured, and to some way equate that in terms of years to each death in the sentence to be passed.
21.
The judge then referred to the Definitive Guideline of the Sentencing Council on causing death by driving. He said this was not an easy case. He said that he had indicated at the outset of the sentencing hearing his concern that the case could not be described as falling at any stage into category 2 in the Guideline. Having considered the Guideline and counsel's helpful submissions, it had become clear that it became a category 1 case, even though it may have started as category 2. The judge considered that in placing the case firmly in category 1, paragraphs 19 to 21 of the Guideline were significant, particularly
paragraph 21, which he quoted:
"Where more than one person is killed, that will aggravate the seriousness of the offence because of the increase in harm. Where the number of people killed is high and that was reasonably foreseeable, the number of deaths is likely to provide sufficient justification for moving an offence into the next highest sentencing band."
22.
The judge said that this was a case of higher culpability because the appellant knew how many passengers were in his vehicle and they were all his responsibility because he was the driver. This was to be contrasted with a case of a driver on his own who crashes into another car which tragically has a number of people in it. So the judge concluded this was higher culpability and greater harm because of the number of deaths. The starting point for category 1 was 8 years' custody and the range 7 to 14 years. The judge noted that that upper limit reflected that Parliament had revisited and increased the earlier maximum for this offence.
23.
The judge said that he had to look at the aggravating factors, whilst being careful not to double count, and then balance them with the available mitigation. This was not an easy task. So many had suffered so considerably as a result of his actions and this was yet another case involving a complete lack of understanding, that going to a public house, drinking alcohol, leaving and driving a vehicle and driving that vehicle at speed and being involved in such an incident could only lead to a substantial and immediate
custodial sentence to protect the public.
24.
Having looked at the aggravating and mitigating features, the judge started at 10 years' imprisonment and reduced that to reflect the appellant's guilty pleas by 25 per cent to seven and a half years' imprisonment concurrent on each of counts 1 to 3. Bearing in mind the maximum for the count of causing serious injury by dangerous driving was 5 years and having given credit for his plea, the sentence came to 3 years' imprisonment
concurrent to the other sentences.
25.
In his helpful submissions on behalf of the appellant, Mr Tyrone Smith QC contends that the judge's starting point of 10 years' imprisonment before credit for the guilty plea was too high since it indicated that before reduction for mitigating features the judge's starting position must in fact have been significantly in excess of 10 years. Whilst he accepts that the judge was right to increase the sentence to take account of the multiple deaths and the injury caused to Billy Bartley, he submitted in his written advice that care had to
be taken that this did not entirely overwhelm the appellant's culpability. Had the judge started at category 2 before aggravating for the deaths caused, the starting point should have been 5 years, but the judge had effectively more than doubled that, before taking account of the mitigation. Mr Smith submitted that to the extent that the judge had taken account as an aggravating feature the consumption of alcohol, this was, in effect, double counting, since the consumption of alcohol was a matter which put the case in category 2
rather than category 3 in the first place.
26.
Mr Smith submitted that the mitigating features were significant. They included that this may have been a case where there would not have been an accident at all but for the unknown defect in the vehicle, namely the slow puncture, of which the appellant was unaware. There was also the remorse shown by the appellant, the fact that those killed were his close friends, which the Guideline says specifically at paragraph 23 may be a mitigating factor, together with his good driving record and his previous good character. Mr Smith also submitted that, of course, the appellant has to live for the rest of his life
with having caused these deaths and serious injury.
27.
Attractively though the submissions were presented, we cannot accept them. We agree with what is said by Mr Connolly for the Crown in the Respondent's Notice, that within category 1 on the facts of this case, the judge was entitled to take a starting point in excess of the 8-year starting point in the Guideline to reflect a number of serious
aggravating features of the case.
28.
We consider that the judge was entitled to stand back and look at the overall seriousness of the offending. The aggravating features of the offending included the fact that the appellant caused three deaths, one of them a 16-year-old girl, and that, given that they were passengers in his car, this was a case where he could anticipate the possible deaths
of those passengers. The fact that the appellant was driving at excessive speed whilst over the drink drive limit was, as the judge rightly identified, a very important aggravating feature. We do not accept Mr Smith's submissions that in taking that into account as an aggravating feature the judge somehow was guilty of double counting. As we said to Mr Smith during the course of argument, it seemed to us that many of his arguments in relation to the Guideline tended to adopt the approach of treating it as tramlines, which is an approach which has been deprecated time and time again in this court.
29.
Perhaps most importantly in terms of aggravation, the judge also had to take account of the additional aggravating factor of various very serious injuries to a 13-year-old boy, who had also lost his sister through the appellant's dangerous driving. On the basis that the judge was going to pass a concurrent sentence on that count of causing serious injury by dangerous driving, the judge was entitled to take a significantly higher starting point on the causing death by dangerous driving counts to take account of the serious injury to
Billy Bartley and to reflect the gravity of the overall offending - see
Attorney General's
Reference (R v Morrison)
[2018] EWCA Crim 981
; [2018] 2 Cr App R (S) 31 at
paragraphs 23 to 24. We also consider that the judge clearly took full account of the
various mitigating factors to which Mr Smith has referred.
30.
In our judgment, this sentence cannot begin to be described as manifestly excessive or
wrong in principle. The appeal against sentence must be dismissed.
31.
It is necessary to say something about the period of disqualification passed by the judge.
The judge does not appear to have followed the guidance provided by this court in
R v
Needham
[2016] EWCA Crim 455
, that the sentencing court should state the
discretionary period of disqualification deemed appropriate together with the extension period to be added pursuant to section 35A of the Road Traffic Act 1988. In fairness to the judge, he does seem to have complied with the purpose of the legislation in passing a period of disqualification of 7 years. In doing so, he referred to the fact that the appellant would be in custody for the first three and a half years, evidently considering that this was the appropriate extension period under section 35A of half the custodial term, although, because he mistakenly thought the appellant would be entitled to time off his sentence for days spent in custody, he took the custodial term as three and a half years. The appellant had in fact been on bail. So half the custodial term would be 3 years and 9 months.
32.
We propose to restructure the period of disqualification so as to comply with the guidance given in
Needham
. The extension period under section 35A will be 3 years and 9 months. The discretionary period of disqualification will be 3 years and 3 months. Thus, the overall period of disqualification remains 7 years, as does the requirement for
the appellant to pass an extended driving test.
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": ["13 April 2018"], "ConvictOffence": ["causing serious injury by dangerous driving", "causing death by dangerous driving"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["PTPH"], "RemandDecision": ["days spent in custody"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Maidstone"], "Sentence": ["3 years' imprisonment", "seven and a half years' imprisonment"], "SentServe": ["concurrent"], "WhatAncillary": ["disqualification from driving of 7 years."], "OffSex": ["data not available"], "OffAgeOffence": ["29"], "OffJobOffence": ["work colleagues"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["drinking alcohol"], "OffVicRelation": ["They were all friends"], "VictimType": ["work colleagues, Stephen Jones and Roy Little, and two teenagers, Chelsea-Rose Betts, aged 16, and her brother, Billy Bartley, aged 13. They were all friends"], "VicNum": ["work colleagues, Stephen Jones and Roy Little, and two teenagers, Chelsea-Rose Betts, aged 16, and her brother, Billy Bartley, aged 13."], "VicSex": ["Stephen Jones and Roy Little, and two teenagers, Chelsea-Rose Betts, aged 16, and her brother, Billy Bartley, aged 13."], "VicAgeOffence": ["13", "16"], "VicJobOffence": ["work colleagues"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["CT scan", "was found to be over the legal drink drive limit", "witnesses", "WPC Rachael Barker was the first police officer on the scene, having been flagged down by members of the public. She saw the vehicle on its side on the pavement.", "Forensics", "sample of blood", "forensic collision investigation by the police", "witness", "driving instructor of 25 years' experience.", "expert's opinion"], "DefEvidTypeTrial": ["He denied that he had been driving too fast or had driven erratically at any stage of the evening.", "At the conclusion of the forensic report it had stated that the rear offside tyre may have adversely affected the handling characteristics of the car."], "PreSentReport": ["data not available"], "AggFactSent": ["was found to be over the legal drink drive limit", "Mr Little and Mr Jones died at the scene and Chelsea-Rose Betts sadly died", "aged 16", "aged 13.", "intensive care."], "MitFactSent": ["remorse shown by the appellant,", "good driving record", "previous good character.", "he had a clean full driving licence and proper insurance for the car.", "genuinely remorseful", "slow puncture, of which the appellant was unaware", "previous good character", "those killed were his close friends,", "previous good character with no previous convictions"], "VicImpactStatement": ["victim impact statements"], "Appellant": ["the appellant pleaded guilty"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeals against sentence"], "AppealGround": ["judge's starting point of 10 years' imprisonment before credit for the guilty plea was too high since it indicated that before reduction for mitigating features the judge's starting position must in fact have been significantly in excess of 10 years."], "SentGuideWhich": ["R v Needham [2016] EWCA Crim 455", "Definitive Guideline of the Sentencing Council on causing death by driving."], "AppealOutcome": ["The discretionary period of disqualification will be 3 years and 3 months. Thus, the overall period of disqualification remains 7 years, as does the requirement for the appellant to pass an extended driving test.", "dismissed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["Mr Smith submitted that the mitigating features were significant. They included that this may have been a case where there would not have been an accident at all but for the unknown defect in the vehicle, namely the slow puncture, of which the appellant was unaware. There was also the remorse shown by the appellant, the fact that those killed were his close friends, which the Guideline says specifically at paragraph 23 may be a mitigating factor, together with his good driving record and his previous good character. Mr Smith also submitted that, of course, the appellant has to live for the rest of his life", "judge's starting point of 10 years' imprisonment before credit for the guilty plea was too high since it indicated that before reduction for mitigating features the judge's starting position must in fact have been significantly in excess of 10 years."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["this sentence cannot begin to be described as manifestly excessive or wrong in principle. The appeal against sentence must be dismissed.", "judge was entitled to take a starting point in excess of the 8-year starting point in the Guideline to reflect a number of serious aggravating features of the case."]} | {"ConvCourtName": ["Crown Court At Maidstone"], "ConvictPleaDate": ["2018-04-13"], "ConvictOffence": ["causing serious injury by dangerous driving", "causing death by dangerous driving"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["PTPH"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Maidstone"], "Sentence": ["3 years' imprisonment", "seven and a half years' imprisonment"], "SentServe": ["Concurrent"], "WhatAncillary": ["disqualification from driving of 7 years."], "OffSex": ["data not available"], "OffAgeOffence": ["29"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Yes-drinking"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individuals"], "VicNum": ["4"], "VicSex": ["Mixed"], "VicAgeOffence": ["13", "16"], "VicJobOffence": ["Employed"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Forensics", "was found to be over the legal drink drive limit", "sample of blood", "expert's opinion", "forensic collision investigation by the police", "medical evidence", "police testimony", "expert witness", "witness", "witness testimony"], "DefEvidTypeTrial": ["At the conclusion of the forensic report it had stated that the rear offside tyre may have adversely affected the handling characteristics of the car.", "Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["child victim", "was found to be over the legal drink drive limit", "Mr Little and Mr Jones died at the scene and Chelsea-Rose Betts sadly died", "intensive care."], "MitFactSent": ["previous good character.", "good driving record", "those killed were his close friends,", "remorse shown by the appellant,", "slow puncture, of which the appellant was unaware", "previous good character", "genuinely remorseful", "he had a clean full driving licence and proper insurance for the car.", "previous good character with no previous convictions"], "VicImpactStatement": ["Yes"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeals against sentence"], "AppealGround": ["starting sentence was significantly excessive"], "SentGuideWhich": ["R v Needham [2016] EWCA Crim 455", "Definitive Guideline of the Sentencing Council on causing death by driving."], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence", "Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["significant personal mitigation", "starting sentence was significantly excessive"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["this sentence cannot begin to be described as manifestly excessive or wrong in principle. The appeal against sentence must be dismissed.", "judge made correct starting point in sentencing"]} | 557 |
No:
200802181/A5
Neutral Citation Number:
[2008] EWCA Crim 2159
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 2nd September 2008
B e f o r e
:
LORD JUSTICE LAWS
MR JUSTICE JACK
SIR CHARLES GRAY
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
BODRUL ISLAM ALI
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr F Mcgrath
appeared on behalf of the
Appellant
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
SIR CHARLES GRAY: This is an appeal against sentence by Mr Bodrul Ali which is brought with the leave of the single judge.
2.
The indictment which the appellant faced included four offences, a count of burglary and three counts of possessing Class A drugs. On 4th January 2008 pleas of guilty were entered to the drugs offences. At the trial on the remaining count of burglary, which commenced on 10th March 2008 before His Honour Judge Kemp, the appellant pleaded guilty to the burglary count following a
Goodyear
indication which had been given by the learned judge, to which we will return in due course. The judge imposed the following sentences: for the burglary, a sentence of 30 months' imprisonment was passed and for the drugs offences, a total of 12 months to run concurrently.
3.
At the time of sentence the appellant was, as we understand it, on licence following a previous sentence of four-and-a-half years for aggravated burglary, which had been imposed on 2nd April 2004. The learned judge directed, pursuant to
section 116 of the Powers of Criminal Courts (Sentencing) Act 2000
, that the appellant should serve 6 months of that sentence before the sentences for the instant offences were to start. By the time he came to be sentenced on 10th April 2008 the appellant had spent 195 days in custody on remand. The learned judge directed that none of these 195 days should count towards sentence.
4.
The facts of the burglary for which the 30 month prison sentence was passed can be briefly summarised as follows. On 24th September 2007 a Mr Bowley and his wife and a friend went on holiday and stayed in a caravan. At about 11.50 pm on the 26th September, Mr Bowley went to bed with the caravan locked and secured. A short while later he heard somebody moving around in the caravan. His wife screamed as the appellant entered their bedroom. Mr Bowley stopped the appellant as he tried to leave the caravan and in due course police officers arrived.
5.
When he was interviewed the appellant said that he had been using drugs and he claimed that he entered the caravan to find somewhere to smoke the drugs.
6.
There was a basis of plea which was the subject of some negotiation. Ultimately it took the following form: the appellant said that he entered the caravan intending to use it as a place to smoke drugs and steal property if there was worth anything taking. He believed the caravan to be unoccupied at the time that he entered. No complaint is or could be made of the learned judge's sentence of 30 months burglary.
7.
Mr McGrath, on behalf of the appellant, advances two submissions on behalf of his client. The first is that having given a
Goodyear
indication, the judge should not have directed the return of the appellant to custody for 6 months pursuant to
section 116
of
the 2000 Act
. Secondly, Mr McGrath submits that the learned judge was wrong to have directed pursuant to
section 240 of the Criminal Justice Act 2003
, that none of the 195 spent on remand should count towards sentence.
8.
We will address those submissions in turn. As to the direction that the appellant should serve 6 months of the earlier sentence, Mr McGrath argues that the appellant was unaware at the time when he tendered his guilty plea that he was at risk of such a direction being made. It was not drawn to the appellant's attention by the judge or by counsel on his behalf, with the result, so it is submitted, that the appellant is left with a legitimate sense of grievance at the addition of this 6 months period.
9.
When giving the
Goodyear
direction, the learned judge said this:
"I make it clear that any indication I give relates to that count [by which he meant the burglary count] and that count alone, he [meaning the appellant] having already pleaded guilty to other counts on the indictment."
Later on he added:
"In my view, should he plead guilty to this count, and leaving aside whatever sentence falls to be passed in respect of the drugs' counts, I would be likely to impose a prison sentence; it would be not more than two-and-a-half years, thirty months."
10.
At the hearing when the
Goodyear
indication was given, which took place on 10th March 2008, no mention was made of the judge having the intention (it indeed he did have the intention) of adding to the custodial term 6 months from the earlier sentence passed in 2004. Although it is understandable that at the hearing on 10th March the learned judge should have been focusing his mind on the counts on the indictment then before him, we are persuaded that the appellant could reasonably have understood and did understand the judge to be saying that the maximum custodial term he would be ordered to serve was two-and-a-half years, and that only qualification to that was the possibility that additional penalties might be imposed in respect of the drugs offences. Accordingly, we accept that by what he said the learned judge inadvertently did give rise to a legitimate sense of grievance on the part of the appellant at the imposition of an additional 6 months from the prior sentence. Accordingly we accede to the submission made by Mr McGrath that that additional 6-month sentence should be quashed.
11.
We turn to the second limb of the argument on behalf of the appellant, namely the judge's direction that none of the 195 days spent on remand in custody should count towards sentence. The provision pursuant to which that direction was made is
section 240 of the Criminal Justice Act 2003
. Subsection (3) provides that the court must direct that the number of days for which the offender was remanded in custody count as time served by him as part of the sentence. That is, however, subject to subsection (4), which provides in effect that subsection (3), which we have just quoted, does not apply, if and to the extent that rules made by the Secretary of State provide in the case of (i) a remand in custody which is wholly or partly concurrent with the sentence of imprisonment, or (ii) sentences of imprisonment are consecutive terms or to terms which are wholly or partly concurrent. There is a further subsection which provides that subsections (3) does not apply, if and to the extent that, in the opinion of the court, it is just in all the circumstances not to give a direction under that subsection.
12.
It is clear that the judge was alive to the issue as to whether subsection (4) entitled him to give the direction which he was ultimately to give. That appears from the exchange that took place at the hearing on 10th April 2008, when the judge was about to sentence this appellant. The judge raised the question of the balance of the previous four-and-a-half year sentence and made observations about it.
13.
We do not need to go into detail of the exchange that took place between the learned judge and counsel because we are satisfied, having listened to Mr McGrath's argument this morning, that the same reasoning which led us to conclude that the judge created a legitimate expectation on the part of the appellant by what he said at the hearing on 10th March 2008 that he would not direct that none of the 195 days spent on remand in custody should count towards sentence. It appears to us that the same process of reasoning has led us to quash the 6 months additional custodial term would lead to our quashing also the direction that the 195 days should not count towards sentence.
14.
In addition we are satisfied, for the reasons that Mr McGrath has advanced before us this morning, that it would be illegitimate for the judge to depart from the mandatory direction that the number of days for which the offender was remanded in custody in connection with the offence should count as time served as part of the sentence. It does not appear to us that subsection (4)A(1) can apply in the circumstances of the present case, since there had been no administrative order that the appellant be returned to custody. It does not appear to us that it could be just in the circumstance of the present case for an order to be made depriving this appellant of the entitlement which he has by virtue of subsection (3) to a deduction of time spent on remand in custody.
15.
Accordingly, we allow this appeal to the extent that we quash the directions made by the judge in relation to the 6-month period and the 195 days period to which we have alluded. | {"ConvCourtName": ["data not available"], "ConvictPleaDate": ["4th January 2008"], "ConvictOffence": ["burglary", "possessing Class A drugs"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleas of guilty"], "PleaPoint": ["At the trial on the remaining count"], "RemandDecision": ["custody on remand"], "RemandCustodyTime": ["195 days"], "SentCourtName": ["data not available"], "Sentence": ["for the burglary, a sentence of 30 months' imprisonment was passed and for the drugs offences, a total of 12 months to run concurrently."], "SentServe": ["concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["Mr"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["he had been using drugs"], "OffVicRelation": ["heard somebody moving"], "VictimType": ["Mr Bowley and his wife"], "VicNum": ["Mr Bowley and his wife"], "VicSex": ["Mr Bowley and his wife"], "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": ["on licence following a previous sentence"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal against sentence"], "AppealGround": ["first is that having given a Goodyear indication, the judge should not have directed the return of the appellant to custody", "Secondly, Mr McGrath submits that the learned judge was wrong to have directed pursuant to section 240 of the Criminal Justice Act 2003, that none of the 195 spent on remand should count"], "SentGuideWhich": ["section 240 of the Criminal Justice Act 2003", "section 116 of the Powers of Criminal Courts (Sentencing) Act 2000"], "AppealOutcome": ["we allow this appeal to the extent that we quash the directions made by the judge in relation to the 6-month period and the 195 days period"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["we accede to the submission made by Mr McGrath that that additional 6-month sentence should be quashed."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["data not available"], "ConvictPleaDate": ["2008-01-04"], "ConvictOffence": ["possessing Class A drugs", "burglary"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["At the trial on the remaining count"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["195 days"], "SentCourtName": ["data not available"], "Sentence": ["for the burglary, a sentence of 30 months' imprisonment was passed and for the drugs offences, a total of 12 months to run concurrently."], "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": ["Yes-drugs"], "OffVicRelation": ["Stranger"], "VictimType": ["Individuals"], "VicNum": ["2 of 2"], "VicSex": ["Mixed"], "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": ["on licence following a previous sentence"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal against sentence"], "AppealGround": ["Secondly, Mr McGrath submits that the learned judge was wrong to have directed pursuant to section 240 of the Criminal Justice Act 2003, that none of the 195 spent on remand should count", "first is that having given a Goodyear indication, the judge should not have directed the return of the appellant to custody"], "SentGuideWhich": ["section 240 of the Criminal Justice Act 2003", "section 116 of the Powers of Criminal Courts (Sentencing) Act 2000"], "AppealOutcome": ["we allow this appeal to the extent that we quash the directions made by the judge in relation to the 6-month period and the 195 days period"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["we accede to the submission made by Mr McGrath that that additional 6-month sentence should be quashed."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 133 |
No:
200701887/A9
Neutral Citation Number:
[2008] EWCA Crim 914
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday, 9th April 2008
B e f o r e
:
LORD JUSTICE LATHAM
(THE VICE-PRESIDENT OF THE CACD)
MR PENRY-DAVEY
MR JUSTICE FOSKETT
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
TERRANCE ADAMS
- - - - - - - - - - - - - - - - - - - - -
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 Cox QC & Mr C Benson
appeared on behalf of the
Appellant
Mr A Mitchell QC & Ms F Schutzer Wetssman
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
THE VICE PRESIDENT: On 6th February 2007 in the Crown Court at Blackfriars before His Honour Judge Pontius, the appellant pleaded guilty on rearraignment to a count of conspiracy to conceal the proceeds of criminal conduct. It may perhaps be relevant just to identify the precise terms of that count at the outset. It charged this appellant, together with others, of conspiring to "conceal or disguise property which in whole or part directly or indirectly represented proceeds of relevant criminal conduct of [the appellant] with intention of avoiding prosecution for an offence to which Part 6 of the
Criminal Justice Act 1988
applies or for the purpose of avoiding or enforcing this case of a confiscation order."
2.
The matter was adjourned for sentence. On 9th March 2007 he was sentenced, firstly, to a sentence of 7 years' imprisonment. A confiscation order was made against him in the sum of £750,000 pursuant to
section 71
of the
Criminal Justice Act 1988
, with a default period of 4 years' imprisonment to be served consecutively to the substantive sentence. He was also ordered to pay £50,000 prosecution costs and a recovery of defence cost order was made. That was the subject of judicial review proceedings which have been heard at the same time as this appeal and in which a judgment will be given tomorrow morning.
3.
The order for defence costs was subsequently quantified in the sum of £4,606,057.85, following an investigation by the Special Investigation Unit. That sum was identified at a hearing which ultimately took place on 21st May 2007, when he was also made subject to a financial reporting order, pursuant to
section 76
of the
Serious Organised Crime and Police Act 2005
, for 10 years. He appeals against his sentence by leave of the Single Judge.
4.
The background facts are as follows. The appellant was for a significant period of time a highly successful career criminal and was well known as such. By his basis of plea it is plain that he was asserting, and it was accepted by the prosecution, that the criminality in question had ceased in or about 1993. The basis of plea was as follows:
"(a) I will plead guilty to count 10 only excluding drugs on the basis of a full fact opening.
(b) The prosecution will not undermine any suggestion that the criminality which created the funds was 5 to 6 years before 1998 (consequently the defence will mitigate on the basis that although money from crime was laundered in accordance with the time frame in count 10, no other crime has been committed since 5 to 6 years before 1998).
(c) The prosecution are content for the defence to mitigate on the basis that the total value of the criminal activity at the time of offences was £1 million.
(d) Confiscation - figure for realisable assets is £750,000.
(e) Prosecution costs £50,000."
5.
The appellant had clearly amassed a considerable fortune by the time of the end of his criminal activity and it was expended on a lavish life-style which involved, according to the prosecution, significant numbers of first class flights to different destinations around the world, expensive jewellery, private education for his child and the acquisition of antiques works of art and other property. When he was ultimately arrested on 30th April 2003 his home, Fallowfields, was a large property in a desirable area of North London. The police found substantial quantities of valuable property and the clear indications were that the appellant had been able to maintain his life-style because of the criminal activities in question.
6.
The appellant had paid no income tax for a significant period. There was an investigation into his position in 1995, and eventually in 1996 he agreed to pay a £95,000 settlement, covering his tax liabilities. But that was on the basis of false information that he had provided. It then became apparent to him that he would have, in some way or another, to account in a way which would satisfy the authorities for the wealth that he had amassed. It was in those circumstances that he obtained the assistance of others in order to disguise the proceeds of crime.
7.
It was principally done through sham companies that were set up, in particular Skye Consultancy Limited and Clouds Consultancy Limited, which gave him effectively bogus employment and an apparent income generated by the companies on the basis that he was some form of consultant. The precise details of the way in which those companies were operated is not of any materiality for the purposes of the sentencing exercise. Suffice it to say that means were found to enable an apparently honest source of income to be developed over a substantial period of time. Indeed, the prosecution case was, in reality, that the whole of the period from 1996 onwards was a period in which the appellant was seeking, by bogus means, to hide the way in which he had come by his money.
8.
Although, at the end of the day, the prosecution were prepared to accept the basis of plea, it remains to some extent uncertain what the full extent of the financial situation was or indeed is. Nonetheless the judge was prepared to sentence the appellant on the basis of the matters which were accepted by the prosecution in that basis of plea.
9.
It should be said that the basis of plea was put forward in February 2007, that is shortly before the plea was entered, against the background that a year earlier counsel then acting on behalf of the appellant had been to see the judge in chambers, in order to ask for an indication as to the sentence that might be imposed whatever the outcome of the trial might be. In other words the sentence irrespective of plea and personal mitigation.
10.
The relevant part of the transcript that we have appears at pages 10 and 11 and reads as follows:
"MR BURKE: I know it is very difficult and judges' practices tend to vary in my experience. The middle range can cover with a 14 year maximum five to eight or five to 10 years but to an individual defendant contemplating his position, fairly realistically nobody is expecting a sentence of nothing less than 5 years. So we can pretty much work out what the bottom limit would be. But if he asked and inevitably he will: what sort of sentence am I facing?
JUDGE PONTIUS: I think I can help to this extent. On everything I know thus far, and with the benefit of looking at the authorities as you rightly surmise a sentence would not be below five, and indeed I say the lower end likely to be seven, top end ten.
MR BURKE: That is without hearing any mitigation from me.
JUDGE PONTIUS: Yes."
It should be said that, at that stage, the question that was being posed by counsel was on the basis of the possibility of a plea not simply to the count to which he ultimately pleaded but also to a second count of money laundering in respect of the proceeds of crime of a relative.
11.
The judge, when he came to sentence the appellant, on 9th March 2007, had submissions before him to the effect that the sentence should reflect the fact that this was money laundering of an unusual nature in one sense, namely this was not money laundering by someone who was seeking to help a criminal to dispose of the proceeds of crime and to continue his criminal activity, but was the activity of a criminal who had changed his ways and was leading a perfectly honest life, in order to enable him to retain the proceeds of his criminal activity. It was submitted that he was entitled to credit for the plea of guilty, albeit late, because the costs of a substantial trial would be saved, a substantial trial expected to last some 4 to 5 months, in which it was proposed that there should be jury protection, and accordingly, although there had been a substantial amount of preparatory work up until the time of the plea, nonetheless the plea had had a significant effect in relation to the saving of public funds, which is one of the purposes of granting credit for guilty pleas.
12.
It was further submitted that there was powerful personal mitigation in this case, which was directly related to the way in which the prosecution case had been prepared. A substantial proportion of the evidence, which the prosecution were intending to rely upon in relation to the counts in question was evidence which had been obtained by means of covert listening devices in the appellant's own home in which the activities of not only himself, but his wife, his family and all guests had not only been recorded but had been the subject clearly of investigation over a period of years. The effect of the knowledge that their private life had been exposed in that way was, it was submitted, clearly a matter which should have be taken into account by the judge. Further personal mitigation related to the fact that during the period running up to the trial the appellant's wife had become extremely ill, to a significant extent by reason of the strain of the proceedings; and the proceedings had had a significant effect also on the health of his daughter.
13.
The judge, in sentencing the appellant, having related the prosecution case and having indicated that he had concluded that this was a very serious case of money laundering, bearing in mind the amount of money involved and the period over which the activity had extended, did not, it is true, expressly refer to personal mitigation; but he did refer to the credit that he was giving for a guilt plea. He did so in a number of places in his sentencing remarks; and it is plain that he concluded that he could only give a small amount, if any, of credit for that guilt plea. His final comment in relation to that, which is at page 150 of the transcript, was as follows:
"As I have also made plain however, minimal credit can be given by this court for a plea entered at such a late stage."
14.
It is against that background that Mr Cox, on behalf of the appellant, submits that 7 years' imprisonment was manifestly excessive. He submits that analysis of the previous decisions of this Court in relation to money laundering may not be in one sense of the greatest assistance, because as this Court has said money laundering cases vary so significantly in their characteristics one to the other. The quotation which is perhaps relevant in this context is from the case of
Monfries
[2004] 2 Cr App R(S) 3, at page 9, where at paragraph 7, the court said as follows:
"The relevant considerations that apply in cases of this type include the following:
(i) The circumstances of assisting another to retain the benefit of drug trafficking and/or criminal conduct vary so widely that this Court has not to date provided detailed guidelines.
(ii) There is not necessarily a direct relationship between the sentence for the laundering offence and the original antecedent offence. Where, however, the particular antecedent offence can be identified, some regard will be had to the appropriate sentence for that offence, when considering the appropriate sentence for the laundering offence.
(iii) The criminality in laundering is the assistance, support and encouragement it provides to criminal conduct.
(iv) Regard should be had to the extent of the launderer's knowledge of the antecedent offence.
(v) The amount of money laundered is a relevant factor."
It is can be seen that those considerations are on the whole related to the person who assists to dispose of another's criminal conduct. But they assist in relation to the present type of case because they identify the fact that one of the relevant considerations clearly is the extent to which the person is dealing knowingly with as opposed to suspecting, criminal proceeds. Nonetheless, Mr Cox submits that the authorities do not support the starting point that the judge must have adopted in this case which, if he allowed any credit for plea, must have been in excess, even if it was only to a small extent, of the 7 years that he imposed. What he has not reflected at all, it is submitted, in the sentence is the personal mitigation. Returning to the credit for plea, the fact that it was indicated by the judge to be a minimal reduction suggests that he failed to take into account the public policy consideration which is so relevant, as we have already indicated in this case, that of the saving of public monies in a lengthy trial. He accepts that in a sense he is putting forward a figure which may be thought to be a bold figure, but he submits that in all the circumstances the appropriate sentence should have been in the 4 to 5 year bracket.
15.
There is undoubtedly force in Mr Cox's submission that the judge did not expressly deal with the personal mitigation to which we have referred. But it has to be remembered that this was a case of serious criminality. This was money laundering over a long period, in order to hide wealth which had been created by criminal activity. That, in our judgment, had to be reflected in a significant sentence of imprisonment, as to which personal mitigation plays a relatively small part.
16.
As far as the plea of guilty is concerned, the judge was perfectly entitled in the circumstances of this case to conclude that only a minimum amount of credit could properly be given. The position in this case was that the preparation of the trial had taken place over a number of years, during the course of which there had been numerous applications which had resulted in very substantial work, in particular, in relation to transcription of covert material, which had all been engendered by the fact that the appellant had not pleaded guilt in the first instance to the offence which he now accepts that he had committed. It follows that the judge was entitled to take the view that he should not give any substantial amount of credit for the plea.
17.
However, it does seem to us that he, although not expressing it in numeric terms, must be taken to have given some credit for plea. That means necessarily that the sentence that he had in mind must have been as a starting point in excess of 7 years' imprisonment. Was that manifestly excessive as a starting point?
18.
It was undoubtedly severe. But we have come to the conclusion that it was not so severe to be manifestly excessive, bearing in mind the fact that this was money laundering in relation to professional criminal activity. We do not accordingly consider that we can interfere with the sentence of 7 years' imprisonment.
19.
We turn to the appeal again the financial reporting order, which raises in the first instance a question of the jurisdiction of this court to deal with it. The financial reporting restriction order was imposed pursuant to the provisions of
section 76(1)
of the
Serious Organised Crime Police Act 2005
which provides as follows in subsection (1):
"A court sentencing or otherwise dealing with a person convicted of an offence mentioned in subsection (3) may also make a financial reporting order in respect of him."
20.
As originally enacted the offence in respect of which the appellant pleaded guilty, that is the conspiracy in relation money laundering as identified in the count to which we have already related, was not an offence mentioned in subsection (3) until, by order pursuant to subsection (4) of that section, it was added, the order taking effect on 4th May 2007. At the time of the original sentencing hearing that fact was known, at least it was known that the order would be taking effect at some time early in May. In the course of proceedings in chambers and also in open court, counsel for the prosecution made it plain that he was going to invite the judge to make a financial reporting order, but that in order to do so he would have in effect to ask the judge to put over, by way of adjournment the application to a date when the order had taken effect.
21.
In the course of the sentencing hearing the judge indicated that he was not minded to adjourn the sentencing hearing itself, and was proposing to make the orders which he made on that day, but indicated that the prosecution could bring the matter back at a subsequent stage at which he would hear submissions as to whether it would be appropriate for him to make a financial reporting order. It was in those circumstances that the application was made in May on three separate occasions, culminating on the 21st May, when the order was ultimately made, when the judge acceded to the prosecution application against objection on behalf of the appellant. That objection had first been made indeed at the original sentencing hearing when Mr Salmon QC, then acting on behalf of the appellant, had said that the standing over of that application, for the making of that order was a device simply to enable the court to have further power to deal with the appellant. The judge indicated at the March hearing that he would hear that argument if and when the prosecution eventually made their application.
22.
The position, when it came to May, was that there was outstanding an issue, as it was seen by the judge, as to the quantification of the order relating to the recovery of defence costs; the Legal Services Commission having been asked in the March hearing to make certain investigations, which culminated in that matter being brought before the court in May; and it was at that stage that the prosecution took the opportunity to repeat their application for a financial reporting order.
23.
On behalf of the appellant Mr Cox submits to us today that the judge was simply wrong to have allowed the prosecution to have had the opportunity to come back before the court in May in order to impose such an order. The position, he submits, was that by the end of the hearing on 9th March, he was effectively
functus officio
in relation to all sentencing matters. There was nothing left for him to deal with within the meaning of
section 76
of
the Act
. He accordingly submits that there was in May no power to make the financial reporting order and that we should accordingly quash it.
24.
The first question however is whether this court has jurisdiction to deal with the financial reporting order at all. That is because there is no statutory provision which expressly provides (as has been the case in a number of other statutory provisions) that such orders shall be considered to be sentences of the court for the purposes of the right of appeal under the
Criminal Appeal Act 1968
. The problem that would be presented if it was not to be treated as a sentence of the court, is that it would be an order made which was related to a matter arising on indictment, and therefore judicial review would be precluded as well. The consequence would be that there would be no apparent means whereby any defendant wrongly subjected to a financial reporting order could have the matter rectified. That is clearly a consequence which this Court should avoid if it can possibly do so. The solution, it seems to us, is that, for the purposes of
the 1968 Act
, the financial reporting order is indeed a sentence. It is an order made on conviction. That is, it is an order that can only have been made after conviction. This Court, considering a different form of ancillary order in the case of
R v Hayden
60 Cr App R 304, held that an order which fell into that category was to be treated as a sentence for the purpose of
the 1968 Act
, and accordingly there would be a right of appeal.
25.
We consider that that is the approach that we should adopt to this particular form of order. There is accordingly a right of appeal. We should say, although the point was not fully argued before us, that the question which must also be answered, if an order is to be treated as a sentence, is whether it is a penalty, which would result in it being a breach in the circumstances of this case of the appellant's rights under Article 7(1) which preclude a court from imposing any penalty which was not a penalty applicable to the offence at the time that the offence was committed. We have no hesitation in saying that a financial reporting order is not a penalty for the purposes of that Article; it is a preventative measure intended to enable the courts to keep control over those in respect of whom there is the risk that they may indulge in criminal activity. Accordingly, there is no question of a bar on retrospective application of the provisions of
section 76(1)
.
26.
Returning to the order that was in fact made, we take the view that the judge was entitled to make the order. When the matter came back before him, it matters not in what guise, he was dealing with the offender within the meaning of
section 76
. That gave him the jurisdiction and the power to make the order. It is not suggested that there was no material upon which he could properly make it; and it is not suggested before us that the order was one which was not an appropriate order in all the circumstances. But we have considered whether the order as made imposed more onerous provisions than were required. The position is that the appellant is required to make the appropriate reports as to his financial position every 6 months while he remains in custody and once every 4 months after his release. In our judgment, those requirements are proportionate to the problem presented by the fact that this appellant had for so long manipulated his financial activities to hide the proceeds of crime. Accordingly we do not consider that we should interfere in any way with its terms. For the reasons that we have given, we accordingly dismiss the appeal against sentence.
27.
MR COX: On the FRO it was an application for leave, your Lordships did not say whether you granted leave.
28.
THE VICE PRESIDENT: Yes. We will say, in relation that, in relation to the financial reporting order, we grant you leave. There were clearly arguable issues which needed to be resolved, but we dismiss the appeal.
29.
MR MITCHELL: My Lord, when your Lordship comes to perfect the transcript may I respectfully refer to paragraphs 56 onwards in our skeleton argument where we dealt with the retrospective and the question of penalty. Your Lordship in his judgment said that it had not been raised by either party.
30.
THE VICE PRESIDENT: It had not been argued is what I meant.
31.
MR MITCHELL: It was argued in writing in other words.
32.
THE VICE PRESIDENT: Yes, thank you very much. | {"ConvCourtName": ["Crown Court at Blackfriars"], "ConvictPleaDate": ["6th February 2007"], "ConvictOffence": ["conspiracy to conceal the proceeds of criminal conduct"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["on rearraignment"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Blackfriars"], "Sentence": ["7 years' imprisonment"], "SentServe": ["consecutively"], "WhatAncillary": ["confiscation order was made against him in the sum of £750,000", "£50,000 prosecution costs and a recovery of defence cost order", "financial reporting order"], "OffSex": ["he"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["bogus employment"], "OffHomeOffence": ["his home, Fallowfields, was a large property"], "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 found", "covert listening devices"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["over a long period", "career criminal"], "MitFactSent": ["health"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against his sentence"], "AppealGround": ["7 years' imprisonment was manifestly excessive"], "SentGuideWhich": ["section 71 of the Criminal Justice Act 1988", "section 76 of the Serious Organised Crime and Police Act 2005", "Part 6 of the Criminal Justice Act 1988", "section 76(1) of the Serious Organised Crime Police Act 2005"], "AppealOutcome": ["dismiss the appeal against sentence."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["But we have come to the conclusion that it was not so severe to be manifestly excessive, bearing in mind the fact that this was money laundering in relation to professional criminal activity", "In our judgment, those requirements are proportionate to the problem presented by the fact that this appellant had for so long manipulated his financial activities"]} | {"ConvCourtName": ["Crown Court At Blackfriars"], "ConvictPleaDate": ["2007-02-06"], "ConvictOffence": ["conspiracy to conceal the proceeds of criminal conduct"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["on rearraignment"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Blackfriars"], "Sentence": ["7 years' imprisonment"], "SentServe": ["Consecutively"], "WhatAncillary": ["financial reporting order", "£50,000 prosecution costs and a recovery of defence cost order", "confiscation order was made against him in the sum of £750,000"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Unemployed"], "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": ["Digital evidence", "Police evidence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["Prolonged", "career criminal"], "MitFactSent": ["health"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against his sentence"], "AppealGround": ["7 years' imprisonment was manifestly excessive"], "SentGuideWhich": ["section 76(1) of the Serious Organised Crime Police Act 2005", "section 76 of the Serious Organised Crime and Police Act 2005", "section 71 of the Criminal Justice Act 1988", "Part 6 of the Criminal Justice Act 1988"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["In our judgment, those requirements are proportionate to the problem presented by the fact that this appellant had for so long manipulated his financial activities", "But we have come to the conclusion that it was not so severe to be manifestly excessive, bearing in mind the fact that this was money laundering in relation to professional criminal activity"]} | 440 |
No.
2006/02676/A8
Neutral Citation Number:
[2006] EWCA Crim 2341
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Monday 31 July 2006
B e f o r e:
MR JUSTICE MACKAY
and
MRS JUSTICE COX DBE
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
- v -
PETER JOHN HEGARTY
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
MR B MILLS
appeared on behalf of
THE APPELLANT
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
Monday 31 July 2006
MR JUSTICE MACKAY:
Mrs Justice Cox will give the judgment of the court.
MRS JUSTICE COX:
1. On 20 February 2006, having pleaded guilty before magistrates at the first opportunity, the appellant, now 20 years of age, was committed for sentence for an offence of taking revenge on a witness, contrary to
section 51(2)
of the
Criminal Justice and Public Order Act 1994
. On 11 May 2006, at Birmingham Crown Court, he was sentenced to a term of twelve months' detention in a young offender institution. He now appeals against that sentence by leave of the single judge.
2. The brief facts are these. On 30 January 2006, the appellant's brother was convicted of the attempted rape of a woman to whom we shall refer as "D", and was sentenced to four years' imprisonment. Ten days later, on 9 February, shortly before 8pm, D was accosted in a newsagent's by a woman who told her that she had got her brother "sent down for no reason". The woman asked her outside. D stayed in the shop and contacted the police. About ten minutes later, however, whilst she was on the telephone the appellant came into the shop. He shouted at her, "Why did you get my brother arrested?", and spat in her face. He walked off but returned a few minutes later. He called her a "slag", spat in her face twice, walked towards her, causing her to walk backwards into some shelving, and then slapped the side of her head with his palm and pushed her into the shelving so that she fell to the floor.
3. The appellant was arrested the following day. He admitted the offence, saying that he was drunk at the time. In interview he accepted essentially the complainant's account of events. He was a man of previous good character.
4. Passing sentence the judge observed that the appellant was entitled to maximum credit for his early plea of guilty and for his remorse, which was accepted by the judge as genuine. He described the incident as an outrageous, violent and thoroughly unpleasant attack upon a young woman who had performed her public duty by giving evidence at his brother's trial. That evidence had been accepted by a jury and his brother had been properly sentenced. The courts, the judge said, had to react swiftly and firmly to protect from such attacks those who did their public duty by giving evidence. The offence was so serious that only a custodial sentence could be justified, and that sentence should be one of twelve months' detention.
5. Mr Mills for the appellant submits that, having regard to his early plea of guilty and his extensive personal mitigation, the sentence of twelve months' detention was manifestly excessive.
6. In the particular circumstances of this case there is, in our judgment, considerable force in these submissions. The author of the pre-sentence report noted that the appellant appeared genuinely ashamed of his behaviour and assessed the likelihood of his re-offending as low. The appellant was 20 years of age, of previous good character and with a stable family life. He was working hard to qualify as an electrician. It was accepted that he had acted impulsively and emotionally when under the influence of alcohol and that he had regretted the offence immediately. Whilst the pre-sentence report recommendation was for a community penalty, we agree with the judge that this offence crossed the custody threshold. Witnesses giving evidence at criminal trials should be protected from attacks of this nature and the courts should and do make it clear that such offences are so serious that only a custodial sentence is justified. However, given the circumstances of this offence and of this offender, and in particular since this was the appellant's first appearance before the courts and therefore his first ever period in custody, we agree that twelve months' detention was manifestly excessive. In the circumstances we propose that the term of twelve months' detention shall be quashed and substituted by a term of four months' detention. To that extent and for these reasons this appeal is allowed. | {"ConvCourtName": ["Birmingham Crown Court"], "ConvictPleaDate": ["20 February 2006"], "ConvictOffence": ["taking revenge on a witness"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["at the first opportunity"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Birmingham Crown Court"], "Sentence": ["twelve months' detention in a young offender institution"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["20"], "OffJobOffence": ["He was working hard to qualify"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["drunk"], "OffVicRelation": ["data not available"], "VictimType": ["\"D\""], "VicNum": ["a woman"], "VicSex": ["a woman"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["He admitted the offence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["re-offending as low"], "AggFactSent": ["violent and thoroughly unpleasant attack"], "MitFactSent": ["remorse", "early plea"], "VicImpactStatement": ["data not available"], "Appellant": ["APPELLANT"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against that sentence"], "AppealGround": ["manifestly excessive."], "SentGuideWhich": ["section 51(2) of the Criminal Justice and Public Order Act 1994."], "AppealOutcome": ["quashed and substituted"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["we agree with the judge that this offence crossed the custody threshold"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Birmingham Crown Court"], "ConvictPleaDate": ["2006-02-20"], "ConvictOffence": ["taking revenge on a witness"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["at the first opportunity"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Birmingham Crown Court"], "Sentence": ["twelve months' detention in a young offender institution"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["20"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Yes-drinking"], "OffVicRelation": ["Don't know"], "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": ["Don't know"], "ProsEvidTypeTrial": ["He admitted the offence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Low risk of reoffending"], "AggFactSent": ["violent and thoroughly unpleasant attack"], "MitFactSent": ["remorse", "early plea"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against that sentence"], "AppealGround": ["manifestly excessive."], "SentGuideWhich": ["section 51(2) of the Criminal Justice and Public Order Act 1994."], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["we agree with the judge that this offence crossed the custody threshold"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 61 |
No:
200401743 A0
Neutral Citation Number:
[2004] EWCA Crim 1470
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Wednesday, 26th May 2004
B E F O R E:
LORD JUSTICE HOOPER
MR JUSTICE LEVESON
MR JUSTICE RODERICK EVANS
- - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 34 OF 2004
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR M ELLISON
appeared on behalf of the ATTORNEY GENERAL
MISS R BUTLER
appeared on behalf of the OFFENDER
- - - - - - -
J U D G M E N T
Wednesday, 26th May 2004
1.
LORD JUSTICE HOOPER: Her Majesty's Attorney General applies for leave to refer a sentence as being unduly lenient. We grant that leave.
2.
The offender's name is Michael John Webb. He is 47 years old.
3.
On 5th March 2004 he pleaded guilty to indecent assault on a male person under the age of 16, contrary to
section 15(1) of the Sexual Offences Act 1956
. He was sentenced by His Honour Judge Hall on the same day to six months' imprisonment, with an extended licence period of two and a half years.
4.
The agreed facts are as follows. The victim of the offence, BS, aged 14 years, first met the offender when they both attended a football referees' course at Wycombe Wanderers Football Club in November 2002. Thereafter they occasionally met in similar circumstances. They also spoke quite often on the telephone. The offender would telephone BS at home, sometimes several times a week, which resulted in BS trusting him and looking up to him.
5.
BS wanted to attend an adult football match that the offender was due to referee on Saturday 15th March 2003, but it was difficult for BS to travel there. The offender had spoken to, but had never met, members of BS's family. BS's parents had come to understand from the offender that he was caring alone for two sons. It was agreed with the mother of BS that he would spend two nights (14th and 15th March) at the offender's home so that he could attend the match.
6.
The offender collected BS from his mother's place of work in the early evening of Friday 14th March 2003. On the way to his home the offender told BS that he would sleep on the settee downstairs. However, later in the evening he said that he would put up a Z-bed for BS in his bedroom. On behalf of the Attorney General, Mr Ellison suggests, and we agree, that this shows a degree of pre-planning on the part of the offender. The offender's sons, aged 16 and 19 years, were both present during the evening and overnight. They each had their own bedroom.
7.
Before they went to bed the offender questioned BS at some length concerning his relationship with his parents, during which BS became upset and tearful. It seemed to BS as if the offender was trying to identify a "soft spot" capable of upsetting him, and it did. Mr Ellison comments that this demonstrates exploitation on the part of the offender. We agree. Once BS became upset, the offender put his arm around BS and cuddled him for some time. When they went to bed they both undressed to their underpants and BS got into the Z-bed. That bed had been placed close enough to the offender's bed to enable him, whilst lying in his bed, to touch BS. BS tried to go to sleep, but the offender began to question him about his family life and again BS became upset. The offender invited BS to sit on his bed and he again put him arm around him. Then he asked BS to lie down on the bed with him and he put his arm around him. Before BS went to sleep the offender had his front against BS's back. Later:
"The offender took BS's hand and placed it over his crotch area under his boxer shorts and onto his penis. BS pretended not to be awake. The offender then placed his hand under BS's boxer shorts and touched his penis for a while. BS turned over onto his front and took his hand away from the offender's crotch. The offender again put his hand on BS's penis and he then pulled BS's boxer shorts down to his knees. The offender started to rub BS's bottom, opening and closing his buttocks with his hands. BS could then feel that something was inserted into his bottom, but he had no idea what it was, it went in quite far and was then removed. The offender then touched BS's penis again, making it erect, before he pressed his own buttocks against BS's penis for some time. When the offender moved his position BS got up saying he needed a drink".
He left the room and looked for his clothes but could not find them. He then returned to the bedroom and told the offender he was going to sleep on the Z-bed. The offender then reached out and took hold of BS's hands, saying that he loved him. After a while the offender pulled his hand away. The offender told BS to get back onto his bed, so he did, being able to think of no excuse for not doing so. A little later BS said he was too hot as an excuse to get off the offender's bed. He went downstairs, found a fleece top (that was not his) and left the house, wearing only his boxer shorts and a fleece. It was just after 04.00 hours and he made a 999 emergency call to the police. That, in our view, is significant in that it shows the traumatic effect on BS of the offender's behaviour.
8.
Police officers met BS at 04.05 hours and found him to be apparently shocked and a little confused. There were reports before the court which indicated that BS subsequently developed difficulties sleeping and some behavioural problems that affected his family life and school work. In September 2003 BS was diagnosed as having post-traumatic stress disorder and thereafter received a protracted period of counselling. We have read the victim impact statement dated 9th February 2004.
9.
The offender was arrested at 05.55 hours on the morning of 15th March. He accepted that when he and BS had discussed BS's home life, BS had become upset and that he, the offender, had put his arm around him, but he denied any indecent conduct with him and denied inviting him to lie on his bed. He said that BS's allegations were probably just an attempt to "draw attention to himself".
10.
The offender has no previous convictions.
11.
The basis upon which the offender pleaded guilty was that he disputed the prosecution facts only insofar as he did not hide BS's clothes from him and that he did not masturbate when he touched BS.
12.
The mitigation advanced by the offender included reference to the fact that if he was given a custodial sentence of more than six months, he would lose his home, because of problems with the mortgage, and that his younger teenage son, C, would have no home to go to and no means whatsoever by which to support himself.
13.
In mitigation Miss Butler said:
"The problem is with the younger boy [C]. [C] is still at home, [C] being the contact with [BS] in the first place. [C] lives at home full-time. The relationship with their mother is not such that they can go and live with her in any event. She runs a bed and breakfast and has a fairly full clientele list at any given time so there is not space for [C] to go and live with his mother. He sleeps in a store-room as and when he does go and visit her but there certainly is not permanent accommodation for [C]. He is still at college ..."
14.
Miss Butler went on to say that there was no means whatsoever by which C could support himself and that there was no way that money could be mobilised in order to support C were the father to be sent away for a period longer than six months. The judge was asked to bear those factors in mind "very, very highly" when considering the period of custody.
15.
There is then further reference to the severe problems faced by the offender's parents, one aged 74 and the other aged 85, and the role that the offender played in their care.
16.
In concluding her submissions on mitigation, Miss Butler said:
"... any period of custody that you impose today will wreak havoc in the lives certainly of [C], to a slightly lesser extent [J] [another brother] and then the parents, so the risk is that there will be more victims to what has already been a most unfortunate incident, and it would be very regrettable that [C's] career could not progress to fruition ... "
17.
In passing sentence, the learned judge said:
"Miss Butler has eloquently told me about the effect that any sentence of imprisonment of any length would have on your sons, and on your father in particular, and I have read their heartrending letters to me and they reveal the good side of you."
Clearly, that mitigation was an important factor in the decision of the trial judge to pass a sentence of only six months.
18.
We turn now to a statement by C's mother which has been prepared for these proceedings and submitted by the Attorney-General:
"I understand that it was suggested to the Court that I have refused to house my son [C].
I would like to make it clear that this is not the case. [C] who is now 16 years has always had a room at my home which he occupies for most of the week. As previously stated he does still stay at his father's address in Thame at weekends and occasionally during the week.
[C] attends [the name of the college]. I pay for all his college costs including transportation. I take him from my home most mornings to Thame where he gets the college minibus and in the evening I collect him from his father's house and bring him home.
I should add that I receive all the child benefit and Child Tax Credit relating to [C]."
19.
It is, to say the least, most unfortunate that the sentencing judge was misled in the way that he was about this matter. We are not suggesting, of course, that either Miss Butler or her solicitor knew about this apparent deception.
20.
We turn to the pre-sentence report. The author of the report said that he regarded the risk of non-sexual offending as low and went on to say:
"As regards sexual offending there may be a higher risk, although Mr Webb is adamant that he will never allow himself to be in a situation where such behaviour could occur. He does however still struggle with self awareness, understanding why he offended, and has a limited acceptance and understanding of the victim's perspective. Self knowledge and victim awareness are key areas which impact on behaviour change."
There is then a reference to a proposal that the offender take part in sex offender treatment, such as that offered by the Thames Valley Project.
21.
Mr Ellison, on behalf of the Attorney General, submits that the following aggravating features are present. We agree. The offender abused his position of trust to commit the offence and exploit the vulnerability of his victim. The victim was away from home, the offender learnt about his home problems and took advantage of that to indecently assault the victim.
22.
In the skeleton argument prepared for this hearing by Miss Butler, she said that grooming was of limited duration over the evening of 14th March 2003. That is right. Mr Ellison has not suggested that there was any grooming before the evening in question. Nonetheless, we take the view that when the decision was made by the offender to put the Z-bed up in his room and to invite BS to come into his bedroom, the offender was planning for what was to happen thereafter.
23.
It is submitted on behalf of the Attorney General that the assault was prolonged, probably about half an hour. Mr Ellison also submits that it involved both masturbating the victim and the insertion of something into his anus, making this a serious indecent assault. Mr Ellison then refers to the long term effects that this has had upon the victim.
24.
As the Attorney General accepts, there were mitigating factors. First of all, the offender had pleaded guilty. However, he did not plead guilty until after the plea and directions hearing, albeit before the trial. He is not, therefore, entitled to full credit. Secondly, this was a single offence - this is not one of those cases where the court is concerned with a series of indecent assaults over a period of time. Thirdly, Mr Ellison points out that the offender has no previous convictions.
25.
Mr Ellison drew our attention to three cases. In
Attorney-General's References Nos 37, 38, 44, 54, 51, 53, 35, 40, 43, 45, 41 and 42 of 2003
[2003] EWCA Crim 1973
this court, presided over by Kay LJ, re-affirmed that sentencers should consider the following when passing a sentence for an offence of this kind, the degree of harm to the victim, the level of culpability of the offender, the level of risk posed by the offender to society and the need to deter others from acting in a similar fashion. The court re-affirmed the proposition that good character does not justify a substantial reduction.
26.
In paragraph 6 Kay LJ summarised the submissions of the Attorney General in those twelve cases to the effect that far too great regard had been paid to the interests of the defendant and insufficient account had been taken of the seriousness of the offending. He repeated the Attorney General's submissions to the effect that the courts have failed to recognise the seriousness of the harm caused to the victim and the proper interests of the public at large, both in protecting others from serious harm from the individual offenders and also in deterring others from committing like offences. The court continued in paragraph 8:
"However, it is clearly undesirable for many reasons that courts should pass sentences that are out of line with proper sentencing practice. To do so can only cause public concern and affect the confidence of the public in the system. It runs the risk that people may feel that sexual offenders have not received proper punishment thereby increasing the danger that extra-judicial punishment may be meted out. An inadequate sentence frequently adds to the anguish of the victim, who feels that society has not recognised his or her suffering, particularly when they have had to steel themselves to speak of offending against them that they might have chosen not to rehearse publicly. Nor is such a sentence any kindness to an offender, who will in all probability be subjected to a reference to this court with the unnecessary anguish of having to start the sentencing process all over again."
27.
In paragraph 9 Kay LJ said that the court ventured to suggest that in some of the cases considered, if the sentencer had stood back and looked at the matter, he or she might well have recognised that too great a weight had been attached to the interests of the offender and insufficient weight to the victim's proper interests and the interests of the public at large. In our view, that also applies to this case.
28.
Two further authorities were drawn to our attention by Mr Ellison. The first is
Attorney-General's Reference No 5 of 2001
(Terence Culshaw) [2001] 2 Cr App R (S) 473. The case involved three offences committed some considerable time before over a period of some four years, starting when the victim was 7-8 years old. During visits to the offender's home, the offender performed sexual acts with the victim. The offender was convicted. In reaching the conclusion that the sentence of six months' imprisonment was unduly lenient, Lord Woolf, Chief Justice, giving the judgment of the court, said that it had reached the conclusion that if these matters were to come before the court today, having been committed fairly recently, an appropriate sentence would be not less than four years' imprisonment.
29.
The other case to which Mr Ellison referred is
Attorney-General's Reference No 41 of 2000
(David Harrison) [2001] 1 Cr App R (S) 372. In that case the offender had met a 13 year old boy, who attended a school for children with special needs. The offender took the boy to a restaurant and then to a swimming pool, later they met in a cafe, and subsequently went to the offender's flat, where the offender gave the boy a karate suit and a mobile telephone phone. They met again the following week when they again went swimming. The offender asked the boy to model for him and the boy agreed to do so. Subsequently the offender took a variety of photographs of the boy naked. The boy was given £20 and vouchers for the mobile telephone. Police officers found photographs in the offender's possession showing the boy and other children naked. Some photographs showed the offender and another boy apparently engaged in simulated sexual intercourse. He was sentenced to a probation order for three years and the Attorney General asked this court to review that sentence. In paragraph 20, Rose LJ, Vice President of the Court of Appeal Criminal Division, said:
"In our judgment, the circumstances of these offences were of a gravity which required the imposition of a prison sentence in the court below of at least 3 years' imprisonment in total. The gravity lay not so much in the nature of the sexual activity in itself but in the grooming of this vulnerable and handicapped boy, over a period of time and the giving of money and other gifts."
In that case the offender had pleaded guilty.
30.
We turn to the mitigation advanced on behalf of the offender by Miss Butler. She submits, first of all, that the sentence should reflect the fact that the offence was not of a violent nature or confrontational. Thus, so she submits, it did not have the damaging physical effects that such violence might have caused. She accepted that there was harm of a psychological nature, although she asked us to treat the victim impact statement with some care because the offender is not able to challenge it.
31.
The thrust of her submissions, it seems to us, was that harm of a psychological nature is somehow less important than physical harm. It is not, at least in this case. As the victim impact statement makes clear, BS has lost confidence in, and the ability to trust, other people and now suffers from post-traumatic stress disorder.
32.
She submitted that the assault was at the lower end of seriousness. We do not accept that. This was an offence planned over a short period of time, but nonetheless it was a serious indecent assault involving masturbation and penetration.
33.
Miss Butler submits that the sentence is not unduly lenient. We disagree.
34.
Having regard to the authorities to which we have already referred, we take the view that the appropriate sentence was a sentence in the region of two and a half to three years' imprisonment.
35.
Recognising the element of double jeopardy, the sentence which we now impose is one of two years' imprisonment.
36.
We turn to the consequential orders that follow from that. The judge, under section 85, made an order extending the licence period for two and a half years. In the light of the alteration that we have made to the sentence, we take the view that the extended licence period should be one of two years.
37.
Given that we have now increased the sentence, we are required to make the appropriate order under
section 28 of the Criminal Justice and Court Services Act 2000
, disqualifying the offender from working with children. Finally, we note that the provisions regarding the Sex Offenders Register will apply also to this offender. | {"ConvCourtName": ["data not available"], "ConvictPleaDate": ["5th March 2004"], "ConvictOffence": ["indecent assault on a male person under the age of 16"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["after the plea and directions hearing, albeit before the trial"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["data not available"], "Sentence": ["six months' imprisonment, with an extended licence period of two and a half years."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["47 years old."], "OffJobOffence": ["data not available"], "OffHomeOffence": ["offender's home"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["both attended a football referees'"], "VictimType": ["BS"], "VicNum": ["The victim"], "VicSex": ["he"], "VicAgeOffence": ["aged 14"], "VicJobOffence": ["aged 14"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["999 emergency call"], "DefEvidTypeTrial": ["denied any indecent conduct"], "PreSentReport": ["risk of non-sexual offending as low"], "AggFactSent": ["abused his position of trust", "vulnerability of his victim", "exploitation", "traumatic effect on BS", "degree of pre-planning", "assault was prolonged"], "MitFactSent": ["problems with the mortgage", "no previous convictions.", "double jeopardy", "would lose his home"], "VicImpactStatement": ["victim impact statement"], "Appellant": ["ATTORNEY GENERAL"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["unduly lenient", "sentence"], "AppealGround": ["unduly lenient"], "SentGuideWhich": ["section 28 of the Criminal Justice and Court Services Act 2000,", "section 15(1) of the Sexual Offences Act 1956"], "AppealOutcome": ["we have now increased the sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["at the lower end of seriousness. We do not accept that."], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["data not available"], "ConvictPleaDate": ["2004-03-05"], "ConvictOffence": ["indecent assault on a male person under the age of 16"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["after the plea and directions hearing, albeit before the trial"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["data not available"], "Sentence": ["six months' imprisonment, with an extended licence period of two and a half years."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["47"], "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": ["14"], "VicJobOffence": ["Child"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Victim testimony"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Low risk of reoffending"], "AggFactSent": ["assault was prolonged", "vulnerability of his victim", "abused his position of trust", "traumatic effect on BS", "exploitation", "degree of pre-planning"], "MitFactSent": ["double jeopardy", "problems with the mortgage", "would lose his home", "no previous convictions."], "VicImpactStatement": ["Yes"], "Appellant": ["Attorney General"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["sentence", "Sentence (is unduly lenient)"], "AppealGround": ["unduly lenient"], "SentGuideWhich": ["section 28 of the Criminal Justice and Court Services Act 2000,", "section 15(1) of the Sexual Offences Act 1956"], "AppealOutcome": ["Allowed&Sentence Replaced by More Excessive Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["at the lower end of seriousness. We do not accept that."], "ReasonDismiss": ["data not available"]} | 44 |
No:
201703048/B4
Neutral Citation Number:
[2018] EWCA Crim 833
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday 8 March 2018
B e f o r e
:
LORD JUSTICE HOLROYDE
MRS JUSTICE McGOWAN DBE
THE RECORDER OF GREENWICH
HIS HONOUR JUDGE KINCH QC
(Sitting as a Judge of the CACD)
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R E G I N A
v
NYROME HINDS
- - - - - - - - - - - - - - - -
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 M Magarian QC
appeared on behalf of the
Applicant
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J U D G M E N T
This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
1.
LORD JUSTICE HOLROYDE: On 7th June 2017 after a trial at the Central Criminal Court before His Honour Judge Dodgson and a jury, the applicant Nyrome Hinds was convicted of offences of attempted murder, possession of a firearm with intent to endanger life, and robbery. On 25th July 2017 he was sentenced to life imprisonment for the offence of attempted murder, the minimum term being one of 15½ years less the period of time which he had spent on remand in custody. Concurrent terms of 20 years and 14 years' imprisonment respectively were imposed on the other two counts. An application for leave to appeal against conviction was refused by the single judge, Openshaw J. It is now renewed to the full court.
2.
Two of the grounds of appeal initially advanced before the single judge are no longer pursued and we need say no more about them. The remaining grounds relate to events after the verdicts had been returned, when a juror sent emails to defence counsel, and to one aspect of the summing-up.
3.
We are grateful to Mr Magarian QC who has attended
pro bono
to present the grounds of appeal on the applicant's behalf.
4.
The relevant facts of the case can briefly be summarised as follows. Andrew and Rebecca Campbell were robbed outside their home on the evening of 23rd November 2016 during the hours of darkness. Two men, one of whom was armed with a handgun, demanded the Rolex watches which Mr and Mrs Campbell were known to wear. As it happened, Mr Campbell was not wearing his watch that night, but his wife was wearing hers and it was stolen in the robbery.
5.
It was the prosecution case that the robber armed with the handgun was this applicant and that the other robber was his co-accused, David Sterling. In the course of the robbery, the gunman shot Mr Campbell twice, first in the stomach and then in the leg. A third shot was fired which in fact hit Sterling in the arm. Both robbers then ran away.
6.
There was much reference during the trial to a man called Stanbury. Mr and Mrs Campbell gave descriptions of the robbers, but initially did not name them. Mrs Campbell did however name Stanbury in a statement made two days after the shooting and picked Stanbury out at an identification procedure. Neither Mr nor Mrs Campbell picked out the applicant at any identification procedure.
7.
The robbery was captured on a CCTV recording which included an audio track on which Mr and Mrs Campbell could each be heard shouting various remarks. The jury at trial were provided with a document setting out a number of agreed facts. Agreed fact 9 began as follows:
"On 8th March 2017 DC Kate Gregory produced a transcript of the words caught on the CCTV footage during the index incident in the following terms..."
The agreed fact then set out the terms of DC Gregory's transcript which included the following:
"Rebecca Campbell can then be heard to say, 'No no no, Stanbury, no. ' This is repeated several times during the incident."
However, in her evidence at trial, Mrs Campbell adamantly denied that she had ever spoken Stanbury's name during the incident. She said that she had made a mistake about Stanbury's involvement and she resiled from her identification of him. In cross-examination, she denied that she had come under any pressure to change her account in that way.
8.
Other CCTV footage played at trial showed the applicant, Sterling and Stanbury together with one another both before and after the robbery. The prosecution relied amongst other things on evidence as to the use of mobile phones which could be ascribed to each of these three men, and on cell siting evidence which was said to show that Stanbury was not at the scene of the robbery at the material time and therefore could not have been the gunman. Mr Magarian has taken us to details of the evidence which he relies on to support the argument that at the time of the robbery Stanbury's phone might have been in the possession of another man, leaving Stanbury free to take part in the robbery.
9.
Fingerprint evidence linked both the applicant and Sterling to vehicles recorded on the CCTV footage. DNA evidence linked Sterling to relevant discarded clothing. Furthermore, when Sterling was stopped by the police the following day he was found to have a gunshot wound to his arm.
10.
The applicant's defence was that he was not present at or participating in the robbery and accordingly could not have been and was not the gunman. He did not give evidence.
11.
Sterling, who was charged first on the indictment, admitted that he took part in an armed robbery and he pleaded guilty to relevant charges in that regard. He denied however the charges of attempted murder and possessing a firearm with intent to endanger life. He gave evidence to the jury, including evidence to the effect that the gunman, whom he would not name, had told him that the gun was loaded with blank cartridges. Sterling was acquitted of the charges which he had denied. The applicant was convicted as we have indicated.
12.
The jury having returned their verdicts were discharged. Sentencing was adjourned to a later date. That evening, Mr Magarian QC received an email from one of the jurors, which he very properly drew to the immediate attention of prosecution counsel and the trial judge. The juror indicated in her email that she was a law student. She said that she was "absolutely devastated for Mr Hinds with the decision that was made by the other 11 jurors, who failed to understand the task they had to do, failing to understand the judge's directions." She expressed the hope that Mr Hinds would be able to appeal. She expressed her admiration for Mr Magarian's skill in presenting the defence case. She said:
"Hinds was prejudged immediately by the others for not taking the stand and then assumption after assumption was used to find him guilty. I am so upset and so sad for Mr Hinds, it was clear to me right from the beginning of the trial that he should be found not guilty."
13.
On 13th June 2017 the juror sent a further communication to Mr Magarian, which again he dealt with entirely appropriately. She reiterated that other members of the jury did not understand the learned judge's directions. She alleged that other jurors had not examined the circumstantial evidence with the care which the learned judge had directed them to adopt. She reiterated that:
"The majority of the jury believed Hinds guilty from the outset because he didn't take the stand despite the judge's directions stating it was wrong to convict for this."
She continued:
"These fundamental errors happened while in deliberation, coupled with some members of the jury not believing that Rebecca Campbell stated 'Stanbury Stanner Stan' on CCTV, even though it was in the agreed facts".
14.
We observe that when the juror referred to other jurors believing the applicant was guilty "from the outset" because he did not give evidence, the correct position was of course that the decision of the applicant as to whether to give evidence was not made until a late stage of the trial and after Sterling had completed his evidence.
15.
By section 20D of the Juries Act 1974, which replaced section 8 of the Contempt of Court Act 1981, it is an offence for a person intentionally to disclose information about statements made, opinions expressed, arguments or votes cast by members of a jury in the course of their deliberations. That provision is subject to exceptions in sections 20E to 20G which ensure that the offence does not prevent the proper investigation of alleged juror offences or irregularities. Mr Magarian has told us that, as we would have expected, the juror has been arrested following her communications to which we have referred. We do not know whether any charge has been brought against her and it is not necessary for us to say more about that for the purposes of this judgment.
16.
In
Mirza
[2004] 1 AC 1118
, the House of Lords by a majority upheld the common law rule that this court will not admit evidence of jury deliberations after a verdict has been delivered. The rationale of the rule lies in the need to protect jurors from any outside interference in or criticism of their collective decision-making. The rule of course works in the same way whether the impugned verdict is one of guilty or not guilty. Jurors, however, can and should raise any allegations of misconduct by their colleagues during the trial and the Court of Appeal would be entitled, in limited circumstances, to admit evidence of outside interference with jurors or of bribery of them. We observe that under the Criminal Procedure Rules and Criminal Practice Direction, judges now make it plain to jurors at the outset of a trial that they must raise any concerns with the judge before the trial ends, precisely because it may be too late for anything to be done after the trial has concluded. Mr Magarian has confirmed that the learned trial judge gave such a direction at the beginning of this trial. Moreover, the jury were provided with a leaflet summarising that and other important rules as to their conduct in very plain terms. With an eye to the obviously sensitive position of a juror who feels obliged to report a failure by one or more colleagues to follow the rules, the leaflet, in common with the usual practice amongst trial judges, indicates that the troubled juror can either speak to an usher or jury officer or can write a note to the judge and give it to an usher. It is therefore plain that the juror concerned is not expected immediately to make a public pronouncement in open court.
17.
Lord Hope at paragraph 123 of his speech in
Mirza
identified one modification of the principle, namely a rare situation in which a jury completely repudiated their function of deliberating upon the evidence, for example by resorting to the tossing of a coin in order to determine the verdict. A similar point was made at paragraph 45 in the speech of Lord Slynn, where reference was made to a well-known case in which a jury consulted a ouija board in order to arrive at their verdict. There is however no suggestion that anything of that sort happened in the present case.
18.
It may be noted that in the next paragraph of his speech, paragraph 46, Lord Slynn made clear that he was referring to a small number of cases as illustrating that some modifications of the rule have been accepted, but that in other cases "the basic rule has been followed that the court should not receive evidence as to what happens in the jury room or in the jury box."
19.
In the later case of
Adams
[2007] 1 Cr.App.R 34
, this court was prepared to hear evidence from jurors in a case in which a juror had alleged, after verdict, that another juror had pretrial knowledge of the defendant. Again, nothing of that sort is suggested here.
20.
Criminal Practice Direction Part 26M.41 to 26M.58 now contains rules as to what should happen if a jury irregularity is alleged after the jury has been discharged.
21.
Mr Magarian relies in his submissions on the dissenting speech of Lord Steyn in
Mirza
, in which Lord Steyn put forward reasons why the principle upheld by the majority might be capable of resulting in injustice in some cases. It is clear from the speeches of the other Law Lords that they were fully alive to that risk, but concluded that it could not prevail over the need for the certainty of the principle which they upheld.
22.
Mr Magarian's submissions are principally directed to what he contends is the significance of the juror's communications with him. He submits that if the jury did indeed refuse to accept the agreed fact as to what Mrs Campbell had said during the robbery, that would be a repudiation of their oaths. He further relies upon the indication by the juror that other jurors treated the applicant's decision not to give evidence as being decisive or in effect decisive of his guilt and thereby failed to follow the judge's entirely proper direction in that regard. Mr Magarian submits that these are in effect forms of juror misconduct which should be investigated to avoid the risk, which he contends exists here, of a miscarriage of justice. He submits that the present case can be distinguished from other cases in which a post-verdict communication appears to be nothing more than an expression of grievance by a juror who dissented from the majority verdict. Here, he argues, the juror, whilst making plain her own disagreement with the majority verdict, also puts forward in articulate terms important and specific matters which Mr Magarian submits must be investigated. He urges this court either to treat the juror's communication as fresh evidence, admissible pursuant to section 23 of the Criminal Appeals Act 1968, or to direct the Criminal Cases Review Commission to investigate and report pursuant to section 23A of that Act.
23.
In a written Respondent's Notice it was submitted that the juror's communications do not amount to anything more than an expression of dissent from the verdicts and do not cast doubt on the safety of the convictions.
24.
In the further ground of appeal, Mr Magarian submits that the learned judge failed adequately to deal with evidence relating to a high visibility jacket which could have been worn by a third person. He argues that that was an aspect of the evidence which was of importance because it was capable of undermining the prosecution case that Stanbury in effect had an alibi for the time of the robbery. He also argues that in his decision to refuse leave on the papers, Openshaw J may have been unduly influenced by a contention in the Respondent's Notice that Sterling's evidence at trial effectively confirmed that this applicant was the gunman. Mr Magarian in detailed submissions argues that Sterling did no such thing. He declined to name the gunman. Nothing he said in cross-examination pointed the finger at this applicant, and if anything he implicated Stanbury.
25.
We deal first with the grounds of appeal relating to the juror's communications. Mr Magarian understandably places considerable weight on the apparent divergence between the terms of the agreed fact which we have quoted and the alleged view of some jurors about what Mrs Campbell could be heard saying on the CCTV recording.
26.
It is of course entirely appropriate for facts which are agreed between prosecution and defence to be reduced to writing and nothing we say should be regarded as discouraging that practice. We do however draw attention to the precise terms of section 10(1) of the Criminal Justice Act 1967:
"Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant, and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted."
In the experience of this court, a practice has grown up of entitling documents "agreed facts" rather than "formal admissions pursuant to section 10 of the Criminal Justice Act 1967", possibly on some occasions because of the concern that a defendant who formally admits a fact may wrongly be thought by the jury to have some personal knowledge of it. It may be that on occasions this approach somewhat blurs the importance of the provision in section 10 as to an admission of fact being conclusive evidence against the party making the admission, and it may be that this case provides an example of that blurring.
27.
The agreed fact which we have quoted is not on its face an agreement, still less an admission, as to precisely what can be heard on the CCTV recording. It is no more than an agreed fact that a particular police officer prepared a transcript in the terms set out. It is to be noted in this regard that the learned judge when summing-up said of the agreed fact at page 28B of the transcript:
"And the officer believes that Rebecca Campbell ... can then be heard to say, 'No, no, no, Stanbury, no'."
We think that in those circumstances the foundation of Mr Magarian's principal point falls away, because there was no formal admission by anyone that the words spoken were as noted in the officer's transcript, and the jury were perfectly entitled to form their own view as to what they could hear on the recording. We recognise however that counsel at trial may have understood the agreed fact to be a formal admission as to the words spoken and we will in a moment deal with the consequences if that is so. We should first though consider a point made by Mr Magarian in which he asks rhetorically how counsel could proceed if jurors were free to depart from agreed facts. We do not agree with Mr Magarian that the points which we have made earlier in this judgment may be productive of chaos or uncertainty in future trials. They are intended only to point to the need for complete clarity on all sides as to what is being agreed and by whom. If there is indeed agreement between all parties that certain words were spoken, and there can be no room for argument about it, then a fact can be admitted unequivocally in those terms. Here, as we have noted, that does not appear to have happened.
28.
We do however turn to consider the position on the assumption that all trial counsel may have thought that it was an agreed fact that specific words were spoken and that there was no room for anyone to think otherwise. Even if that were correct, it would not in our judgment bring this case within the rare and exceptional category in which an investigation of possible jury irregularity should be made. Mr Magarian realistically acknowledges, as he did at trial, that there was a case for this applicant to answer but he argues it was very far from being a strong prosecution case. We do not agree with that assessment. True it is that neither Mr nor Mrs Campbell had picked out the applicant at any identification procedure, notwithstanding that the gunman was unmasked and that Mrs Campbell at any rate had an opportunity to see him at close range. True it is also that there were entirely valid jury points to be made by Mr Magarian about Mrs Campbell's change in stance as to whether or not she had identified Stanbury at the scene. But there was, in our view, nonetheless strong circumstantial evidence against the applicant. Contrary to Mr Magarian's submission, it seems to us that Sterling's evidence did indeed go a long way to implicate this applicant as the gunman, not least because he freely named Stanbury as the planner and instigator of the robbery but asserted that he could not name the gunman through fear of the consequences. He was not cross-examined on behalf of the applicant. In particular it was not put to him that notwithstanding his unwillingness to name the gunman, he was in a position to confirm that the gunman was not the applicant. The CCTV evidence, as we have said, showed the applicant with both Sterling and Stanbury before and after the robbery. The jury were entitled to accept the cell siting evidence as proving that Stanbury was not at the scene of the robbery at the material time and therefore could not have been the gunman. In this regard it must not be overlooked that Mr Campbell said that the gunman was not Stanbury, whom he would have been able to identify if it had been him. The jury were also of course entitled, subject to following the learned judge's direction, to regard the applicant's silence at trial as providing some support for the prosecution case.
29.
In those circumstances, even if it could be said that the juror's communications alleged a failure by some jurors to accept an admitted fact, that could not be said to be a decisive point and would not in our judgment cast doubt on the safety of the convictions.
30.
In our view, the communications from the juror are properly regarded as coming into the category of an expression of dissent by a juror who disagreed with the majority. She, like her fellow jurors, had been instructed that if there was a matter of concern it must be raised in the suggested manner in the course of the trial. She did not raise any such concern, either during the evidence or at any point over the period spanning three days when the jury were in retirement. Given that her assertion is that other jurors had made their minds up from the outset, that is a striking omission. We would add, moreover, that the juror, whilst criticising others for prejudging the guilt of the applicant, said in her first email that it was clear to her "right from the beginning of the trial" that the applicant should be found not guilty. It follows that the juror herself had formed a view as to the appropriate verdict before hearing any evidence and before knowing, for example, what either Sterling or the applicant might say if they gave evidence.
31.
We are not persuaded that the juror's assertions, not made during the trial but only after verdicts had been returned, are sufficient to cause this court to take the highly unusual course of directing an investigation into whether the learned judge's directions were ignored. Whether that would in any event amount to the sort of misconduct which it was contemplated in
Mirza
might properly be the subject of enquiry, is a matter which may need to be considered if in future another case more directly raises the point. Here, we are not persuaded that the juror's communications provide any ground for viewing the verdicts in this case as a potential miscarriage of justice.
32.
As to the complaint about one specific aspect of the summing-up, we need not add to the observations of the learned single judge in refusing leave on the papers. It suffices to say that this was not a matter of complaint which was raised at the time of the summing-up and in our judgment it cannot be said to cast any arguable doubt on the safety of the convictions.
33.
For those reasons, notwithstanding Mr Magarian's efforts on behalf of the applicant, we are satisfied that these convictions are safe and that there is no arguable ground for appeal. Nor is there any reason for this court to direct an investigation pursuant to section 23A of the 1968 Act. We are grateful to Mr Magarian for appearing
pro bono
as he has done, but this renewed application is accordingly refused.
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": ["Central Criminal Court"], "ConvictPleaDate": ["7th June 2017"], "ConvictOffence": ["attempted murder, possession of a firearm with intent to endanger life, and robbery."], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["remand in custody"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Central Criminal Court"], "Sentence": ["life imprisonment for the offence of attempted murder, the minimum term being one of 15½ years less the period of time which he had spent on remand in custody. Concurrent terms of 20 years and 14 years' imprisonment respectively were imposed on the other two counts."], "SentServe": ["Concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["men"], "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": ["Andrew and Rebecca Campbell"], "VicNum": ["Andrew and Rebecca Campbell"], "VicSex": ["Mr and Mrs"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["their home"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["identification procedure", "Fingerprint evidence", "DNA evidence", "evidence as to the use of mobile phones", "CCTV"], "DefEvidTypeTrial": ["he was not present at or participating in the robbery and accordingly could not have been and was not the gunman."], "PreSentReport": ["data not available"], "AggFactSent": ["armed"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Applicant"], "CoDefAccNum": ["his co-accused, David Sterling"], "AppealAgainst": ["leave to appeal against conviction"], "AppealGround": ["The remaining grounds relate to events after the verdicts had been returned, when a juror sent emails to defence counsel, and to one aspect of the summing-up", "the learned judge failed adequately to deal with evidence"], "SentGuideWhich": ["section 8 of the Contempt of Court Act", "Criminal Practice Direction Part 26M.41 to 26M.58", "section 10(1) of the Criminal Justice Act 1967", "section 20D of the Juries Act 1974"], "AppealOutcome": ["application is accordingly refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we are satisfied that these convictions are safe and that there is no arguable ground for appeal"]} | {"ConvCourtName": ["Central Criminal Court"], "ConvictPleaDate": ["2017-06-07"], "ConvictOffence": ["attempted murder, possession of a firearm with intent to endanger life, and robbery."], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Central Criminal Court"], "Sentence": ["life imprisonment for the offence of attempted murder, the minimum term being one of 15½ years less the period of time which he had spent on remand in custody. Concurrent terms of 20 years and 14 years' imprisonment respectively were imposed on the other two counts."], "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": ["Individual person"], "VicNum": ["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": ["Fingerprint evidence", "DNA evidence", "Digital evidence", "identification procedure", "CCTV"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["armed"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["1"], "AppealAgainst": ["Other"], "AppealGround": ["the learned judge failed adequately to deal with evidence", "The remaining grounds relate to events after the verdicts had been returned, when a juror sent emails to defence counsel, and to one aspect of the summing-up"], "SentGuideWhich": ["section 10(1) of the Criminal Justice Act 1967", "Criminal Practice Direction Part 26M.41 to 26M.58", "section 20D of the Juries Act 1974", "section 8 of the Contempt of Court Act"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we are satisfied that these convictions are safe and that there is no arguable ground for appeal"]} | 169 |
Neutral Citation Number:
[2013] EWCA Crim 1308
Case No:
201205112 C1
201205110 C1
201205168 C1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Manchester Crown Court
HHJ Lakin
T20097724
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
25/07/2013
Before:
LORD JUSTICE TREACY
MR JUSTICE MACDUFF
and
MR JUSTICE DINGEMANS
- - - - - - - - - - - - - - - - - - - - -
Between:
Regina
- and -
IA
TA
FA
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr L J McNulty
(instructed by
Registrar of Appeals
) for
IA
C Wade
(instructed by
Registrar of Appeals
) for
TA
S Robinson
(instructed by
Registrar of Appeals
) for
FA
P Cadwallader
(instructed by
Crown Prosecution Service
) for the
Respondent
Hearing dates : 11-12th July 2013
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Treacy:
Background
1.
These three applicants seek leave to appeal against conviction, their cases having been referred to the Full Court by the Registrar. The applicants were convicted in the Crown Court at Manchester on 7
th
August 2012 after a trial which had lasted about six months.
2.
IA and TA are husband and wife, respectively. They were convicted of Counts 1 and 2, trafficking a person into the United Kingdom for exploitation contrary to
Section 4
of the
Asylum and Immigration (Treatment of Claimants etc) Act 2004
.
3.
Each of the three applicants was also convicted of counts of furnishing or permitting the furnishing of false information to obtain benefit contrary to
Section 111
(A) of the
Social Security Administration Act 1992
. IA was convicted on Counts 19, 23 and 24; TA was convicted on Counts 21, 25, 26 and 27; and FA who is the daughter of IA and TA and was convicted on Counts 20, 22 and 25. It will be noted that TA and FA were convicted on a joint count, namely Count 25.
4.
In relation to IA, the jury could not agree verdicts on three counts of false imprisonment and thirteen counts of rape. In relation to TA, the jury could not agree on the same three counts of false imprisonment. The jury found her not guilty on Counts 17 and 18, sexual assault and unlawful wounding respectively.
5.
The first two applicants live together in their matrimonial home at 11 Cromwell Road, Eccles. The third applicant lived in nearby Milton Road. There was another daughter of the family, TA2.
6.
The prosecution case was that the complainant, RB, was first brought to the United Kingdom from Pakistan in June 2000 by TA2 when she was about ten to twelve years of age, although her passport did not give her correct date of birth. She was profoundly deaf and without speech. On arrival she had entry clearance to work as a domestic worker in a private household on condition that she did not seek recourse to public funds.
7.
The Crown’s case was that from her arrival she was compelled to work as a domestic servant at the home of IA and TA until June 2009 when she was discovered by the authorities. Between 2000 and 2005 annual applications were made for RB’s leave to stay to be extended on the basis she was employed as a domestic worker by TA2. The Crown’s case was that she was in fact being used as an unpaid domestic servant by the first two applicants.
8.
Counts 1 and 2 arise from the fact that the Ashars took RB back to Pakistan on two occasions to visit family, once in 2006, and again in 2009. On each occasion RB returned to the UK accompanied by TA, with IA following later. The two return journeys in March 2006 and January 2009 were the subject of the trafficking counts against the first two applicants, alleging that they arranged or facilitated the arrival of RB into the United Kingdom, with the intention of exploiting her. The Crown’s case was that RB was forced to work, and that her life was controlled through violence.
9.
On 11
th
July 2005 an application was made, ostensibly by RB, for indefinite leave to remain in the UK. The application was supported by TA2 and TA. Indefinite leave was granted on 25
th
July 2005. This had the effect of lifting the restriction on claiming benefits. The Crown’s case was that almost immediately after leave was obtained, fraudulent claims for income support, housing and council tax benefits were made on RB’s behalf by the three applicants, either furnishing false information or permitting such information to be furnished. Claims were made on the basis that RB was unemployed and doing no paid or unpaid work; a false date of birth was submitted, and false documents such as sham tenancy agreements were furnished, as well as documents purporting to show a move to 13 Cromwell Road by RB. The Crown’s case was that, in reality, her circumstances had never changed; she was always an unpaid domestic servant at 11 Cromwell Road.
10.
The Crown’s case was based upon the evidence of the complainant, and their assertion that she was a truthful and honest witness upon which the jury could rely.
11.
IA’s case on Counts 1 and 2 was that he had done nothing to arrange or facilitate RB’s arrival in the UK. As to the benefit allegations, the accounts were clearly set up for RB’s benefit. RB’s allegations were denied. She had been coached and rehearsed by the police and her intermediary, Mr Flynn. RB herself was a manipulative liar, using her disability as a shield to avoid answering questions.
12.
TA’s case was that RB was treated as a member of the family and was happy. When she returned to the UK in 2006 and 2009, RB had been insistent on returning. The benefit monies were obtained for RB, and had not been obtained dishonestly.
13.
FA’s case was that she had not acted dishonestly in filling in the benefit application forms. The prosecution had proceeded on suspicion and guilt by association.
14.
The issues for the jury on the counts we are concerned with were as follows on Counts 1 and 2:
Did the applicants actively participate in arranging or facilitating RB’s arrival into the UK? And, if so, did the applicant intend that RB would be exploited by being forced to work?
15.
As to the benefit counts, the issue was whether the applicants knowingly furnished or permitted to be furnished, false information with a dishonest intent to obtain benefits.
16.
Prior to the trial itself, there was a lengthy series of pre-trial and preparatory hearings covering more than forty days. In the course of these the judge made rulings (inter alia), as to (a) the competence of RB as a witness, (b) the admissibility of evidence of violence by TA and others towards RB pursuant to
Section 98
(a) of the
Criminal Justice Act 2003
, (c) special measures for RB, (d) the appointment of Mr Flynn to act as an intermediary for RB at the trial, despite objections as to the way he had performed his role prior to trial and asserted breaches of guidance by him.
17.
RB gave evidence in chief via fourteen video recorded ABE interviews, which were played to the jury over many days. Cross examination took place via a live link to a separate room. It took many weeks to complete in part due to the necessarily laborious process of eliciting evidence. During both the ABE interviews and in cross-examination questions were put to RB either by a police officer in the ABE interviews or by counsel at trial. A question would be put orally to a British Sign Language (BSL) Interpreter, who then signed the question in BSL to Mr Flynn, who was acting as the registered intermediary, both at the police station and at the trial. Mr Flynn himself was also profoundly deaf and without speech. Mr Flynn would then put the question to RB in an idiosyncratic sign language they had developed during a number of pre-ABE rapport meetings. Visual aids or pictures were also used. RB’s replies to Mr Flynn were then signed to the BSL interpreter, who then voiced RB’s answer to the police officer or counsel. An application by the defence for cross-examination of RB to be video recorded was refused by the judge.
18.
Each of the applicants gave evidence and about sixteen other witnesses gave evidence for the defence, countering RB’s evidence as to the way in which she had been treated.
19.
The jury retired to consider its verdicts on 23
rd
July 2012. On 1
st
August 2012 after deliberating for over 25 hours, a juror wrote a note to the judge. It reported that another juror had used racist language about IA, referring to him inter alia as a “black bastard”, and said that the jury should “throw the book at him”. The note writer had objected and was about to write to the judge when other jurors persuaded him not to, saying that if he did they would have spent six months for nothing. The juror thought about the matter for about a day and felt that he should report the matter to the judge, and so wrote the note.
20.
There was discussion between judge and counsel, and
Sander v UK [2001] 31 EHRR 44
was considered. The judge decided to carry out an investigation by calling jurors into court individually. Juror S, the subject of the note, admitted the accuracy of the note. She said she had made the remark in heated argument and apologised. She went on to add that other things had been said. She was asked if any other juror had made racist comments. Her initial reply was “in that room, no”. The judge investigated further, and she confirmed that she was the only person to have made such remarks, either inside or outside the jury room.
21.
The other jurors were then brought into court one by one. They confirmed the accuracy of the note. They all said that no racial comment had been made by any other member of the jury in or outside the jury room. The judge did not specifically ask them about attempting to persuade the note writer not to report the matter to the judge. Defence counsel applied for discharge of the jury on the basis of contamination by the racist juror, who by then had been discharged. They expressed concern about that juror’s reply “in that room, no”. Although the implication had been withdrawn by her, there remained an issue as to her truthfulness. Any guilty verdict could not be regarded as safe, as it could be inferred that the discharged juror was intending to return a guilty verdict, and that the others, apart from the note writer, were prepared to return a verdict with her, without apparent concern for her racist views.
22.
The judge refused the application, stating he was satisfied that every juror had answered his questions truthfully, and that no other juror had made any racist comment. He recognised that other jurors had failed to observe a direction given to draw problems to his attention, but said that there was no evidence whatsoever that any of them was racially biased, or that they would not decide the case solely in accordance with the evidence. There was no basis upon which a fair-minded observer would in the circumstances conclude that this jury was biased. The judge then asked each juror in turn whether they were able to decide the case on the evidence in accordance with their oath, and whether their decision would be in any way affected by considerations of race, colour of skin or religion. Each juror individually confirmed that they could properly try the case. Accordingly, the judge ordered that the trial should continue.
23.
There is one further relevant matter which sets the scene for these various grounds of appeal. The jury, having disagreed on the allegations of rape concerning IA, a retrial was fixed for 5
th
December 2012. On that day Mr Flynn, the intermediary, raised concerns about his continuing to act. He said he was very concerned about the situation with the defence expert, Mr Nicholson, who had been present through the original trial, monitoring his work closely. He said he had previously worked with Mr Nicholson some years before and there had been a dispute between them over different methods of working. Mr Flynn’s name was removed from a list of people working with Mr Nicholson’s company.
24.
Mr Flynn expressed concern about this conflict undermining the work he was doing. It was a professional matter, not a personal matter. He felt that some of the questions asked in the original trial had been intended to undermine him, and were directed at him, rather than at RB.
25.
Following submissions, the judge put the intermediary oath to Mr Flynn and asked if he could properly and dispassionately fulfil his function as an intermediary for RB. After some confusion about his answer, Mr Flynn confirmed that he could not fulfil his function as intermediary and comply with the oath if Mr Nicholson was involved in the trial. The judge ruled that Mr Flynn could not take any further part in the trial because Mr Flynn had candidly said he could not now honestly and faithfully comply with his oath. The retrial had to be postponed.
Grounds of Appeal
26.
There are many grounds of appeal. Some of them (Grounds A, C, D and E) are common to one or more applicants, and we will deal with those first. Thereafter there are grounds relied on by individual applicants which we will take in turn.
(A) - The role of Mr Flynn, the intermediary
27.
All three counsel raised matters relating to the role of Mr Flynn as intermediary. We give leave.
28.
The arguments fell into two parts, the first of which related to Mr Flynn’s role and performance during the trial. The second area related to the development at the start of the rape retrial when Mr Flynn indicated he could no longer continue as an intermediary. As to what occurred at trial, it was argued that it was important for an intermediary to be impartial, and that there was a real possibility in this case that Mr Flynn was not able to perform his functions at the trial impartially and objectively.
29.
There had been challenge to Mr Flynn’s conduct in the pre-ABE process at the voir dire. Mr Flynn had given evidence and had been challenged as to his behaviour. The judge did not find that anything had occurred which would lead him to exclude the ABE interviews from evidence, and he did not accept a defence submission that because Mr Flynn had been challenged at the voir dire, and those issues were likely to be raised during the trial, it would be inappropriate for Mr Flynn to act as an intermediary during the trial. The judge felt that those matters could be properly handled as part of the trial process, and expressly approved the use of Mr Flynn as the trial intermediary after seeking written confirmation from Mr Flynn that he was prepared to act as intermediary, bearing in mind that it was possible that allegations might be made relating to his integrity. Mr Flynn confirmed that he was prepared to act on that understanding.
30.
The appellants submit that as matters transpired during the trial, challenges were made to the way in which Mr Flynn had, prior to trial, interacted with RB, and criticisms were made of the way in which he performed as an intermediary. There were complaints that on occasions Mr Flynn had oversimplified questions designed to test the witness by putting them in terms that she was lying. There were complaints that on occasion Mr Flynn had declined or objected to proceeding in a particular way, for example by using a timeline through which the defence wished to conduct some cross-examination. It was said that there were many occasions when Mr Flynn would say that the witness did not understand when she had previously appeared to answer questions on a topic with understanding.
31.
Overall it was submitted that this had a disruptive effect on the flow of cross-examination, that on occasion judicial intervention was required; that certain topics were not fully pursued in cross-examination, and that the cumulative effect would have been to arouse sympathy for RB and hostility towards the defence.
32.
Moreover, Mr Flynn gave evidence before the jury in the course of which his professional integrity was challenged. In those circumstances it was clearly unsatisfactory that he, as to some extent was a witness of fact, was assisting another witness of fact in describing events pertinent to the charges. What occurred at trial, it was said, justified the concerns expressed by the defence pre-trial, and their criticisms were further justified by the absence of a video recording of the intermediary work at trial with RB, a matter considered as a separate ground later in this judgment.
33.
As to this issue we note that during the course of the trial Mr Flynn’s professional integrity was indeed called into question, and the judge interrupted proceedings so as to ensure that Mr Flynn understood that that was the case. He was anxious to see at that stage whether Mr Flynn felt he was in a position to continue. Mr Flynn’s reaction was to say that he could, but the matter was adjourned so he could take advice, after which he indicated that he felt able to continue to act as an independent intermediary in the circumstances.
34.
He was aware throughout that his work was being monitored by experts instructed by the defence. There was Dr O’Rourke, who herself was able to understand and communicate sufficiently with RB, and who had seen her privately to assess her, and had been able to communicate on her own with her. In addition Dr O’Rourke was fluent in British Sign Language. Mr Nicholson, another expert, had specifically asked for a monitor to observe the interchanges between Mr Flynn and RB on the video interviews when played as her evidence in chief. During the course of the trial he raised issues of translation, both in relation to Mr Flynn, and also in relation to the BSL interpreter. From time to time during the trial issues were raised as to the accuracy of what Mr Flynn was conveying to the court and those appear to have been resolved. No evidence was called on behalf of any Defendant from an expert challenging what Mr Flynn represented RB as having said. When issues arose during the Crown’s case, whether in relation to translation or other difficulties, they were dealt with by the judge in the normal way.
35.
As Section 29(2) of the 1999 Act makes clear, the function of the intermediary is to communicate (a) to the witness, questions put to the witness, and (b) to any person asking such questions, the answers given by the witness in reply to them. The intermediary must explain such questions or answers so far as is necessary to enable them to be understood by the witness or person in question.
36.
In the light of that we do not consider that a criticism that Mr Flynn had become no more than a relay interpreter carries any weight. He was acting as an intermediary as a result of the judge’s decision after very detailed pre-trial argument. In performing his functions he was entitled to interject in order to ensure that RB could understand what she was being asked. We do not consider that his interjections have been shown to be intended to be disruptive, nor were they widespread. In the course of argument we were taken to certain examples, but we are unpersuaded that they had disruptive effect which resulted in an unfair handicap to the defence. If anything, the extremely lengthy cross-examinations of RB were permitted to go on far too long.
37.
Having examined the matter carefully, we do not think that this first limb of the argument is sustained. When the judge came to sum the matter up to the jury, he put fully and fairly to the jury defence criticisms made of Mr Flynn and of the process. He enabled the jury to consider detailed criticisms based on available guidance as to the use of and conduct expected of an intermediary. He put fully before the jury criticisms relating to Mr Flynn’s independence and accuracy in his role. Moreover, the jury themselves had seen Mr Flynn cross-examined on that basis. After careful consideration of all the materials, we do not consider there is anything in this aspect of this ground.
38.
The other aspect of this ground arises from what occurred at the retrial when Mr Flynn said he could no longer follow his intermediary oath. At one point in the discussion at that time Mr Flynn said:
“I felt a lot of the questions like previous last time (sic) were more directed at me than at [RB], and I think that that was a way of undermining me and it did affect the way I work.”
39.
Mr McNulty drew attention to that last phrase and submitted that it meant that this court could have no confidence that Mr Flynn had done his job as an intermediary properly in the trial with which we are concerned. He says that since his integrity in the previous trial was under challenge, that remark demonstrates that he must have been influenced by that challenge, and there was a risk that in those circumstances he might have made what RB had to say tally with what he was saying. That must, of course, relate to the pre-ABE contacts. Moreover, it was argued that since his professional difficulties with Mr Nicholson predated the first trial, there was a danger that Mr Flynn had not acted impartially during that trial.
40.
We do not regard the remark relied on as having the significance contended for. Both before and during the trial, the judge had considered and checked with Mr Flynn (who himself took advice) about his ability to act as an intermediary in the circumstances. At no stage during that trial did Mr Flynn indicate any difficulty in acting in accordance with his oath. The remark relied on does not demonstrate that Mr Flynn had not been true to his oath in the first trial. To our mind it demonstrates no more than Mr Flynn found the situation awkward or difficult. The fact that Mr Flynn came forward at the start of the retrial and indicated his misgivings and his feeling that at that stage he could no longer remain true to his oath is, in our judgment, a token of his integrity. At the point when he had come to that view, he made it known to the court. That does not mean that prior to that point he had been untrue to his oath, indeed it rather suggests to the contrary.
41.
We again note that there was no evidence adduced at the first trial from the defence to suggest that Mr Flynn had not in fact acted in accordance with his oath and was not reporting faithfully what RB said. We are unpersuaded that the episode at the start of the retrial provides any basis for challenging the integrity of the work done previously by Mr Flynn.
42.
Accordingly, neither strand of the arguments raised under this ground leads us to think that there was any impropriety or unfairness in the proceedings. We reject this ground.
(B) – The judge’s refusal to exclude RB’s evidence at the close of the prosecution case
43.
At the end of the prosecution case Mr McNulty, on behalf of IA, indicated that he wanted to make a submission to exclude all of the video recorded ABE interviews of RB. This issue had already been very extensively canvassed as part of the preparatory hearings.
44.
A voir dire lasting forty two days had taken place. In the course of that the judge had heard evidence from many witnesses involved in the investigation of the case and the process of conducting the ABE interviews. There was extensive investigation of the role of Mr Flynn, the intermediary, and of the procedures adopted in lengthy contacts between Mr Flynn, RB and the investigating officers during the pre-ABE phase of the case in which Mr Flynn sought to build up a rapport with RB and establish a working means of communication with her.
45.
The matter was examined in minute detail, notes, journal entries, and emails relating to the pre-ABE meetings having been provided to the defence. There had been extensive reference to the Intermediary Procedure Guidance Manual published by the Office for Criminal Justice Reform (October 2005). There was also reference to Achieving Best Evidence: Guidance (2007 Revision).
46.
The defence objected to the admissibility of the ABEs because of the way they said Mr Flynn had conducted himself, resulting in asserted breaches of the guidance. They relied on Section 27(2) of the 1999 Act which provides that a special measures direction may not provide for a video recording to be admitted if the court is of the opinion, having regard to all the circumstances, that it is not in the interests of justice for the recording to be admitted.
47.
The judge analysed a series of points about the way Mr Flynn had been involved in the process as well as taking account of the opinions of a defence expert, Dr O’Rourke, whose view was that Mr Flynn had improved the reliability of the ABE interviews, and whose evidence, in the judge’s view, substantially undermined the defence arguments relating to Mr Flynn. The judge considered the asserted departures from the guidance and concluded:
“The main thrust of these points is consistency and suggestibility which I have dealt with above. The whole process of pre-interview visits to RB is entirely transparent because the police kept detailed notes. In my judgment those meetings did not in any way amount to, or even come close to amounting to, witness training or coaching. What is left are jury points nothing more.”
48.
The judge held that there was no basis for excluding the ABE interviews, either by reference to
Section 27(2)
or under
Section 78
of
PACE 1984
.
49.
After that exhaustive investigation pre-trial, which was then followed at trial by an examination before the jury of similar issues, Mr McNulty sought to raise the point of admissibility again at the close of the Crown case. The judge was unwilling to entertain the submission. He said that nothing new had arisen during the trial so that it was not appropriate to revisit this aspect of the case.
50.
Before us Mr McNulty submitted that there had been a development during the course of the trial which warranted a re-opening of the matter. The judge’s reference in his original ruling to the process being “entirely transparent because the police kept detailed notes” had now been undermined. The officers present at the pre-ABE meetings had given evidence that they did not know what RB had said to Mr Flynn at those meetings. They had merely noted what he had relayed to them through the BSL interpreter at the time. There were clearly exchanges between Mr Flynn and RB which resulted in discussion between them so that he could conclude in his own mind what she was saying before he purported to pass on her comment.
51.
Thus, submitted Mr McNulty, the absence of a full record of interchanges was an important new factor justifying the application, which if heard in full by the judge at this stage, would have resulted in the evidence being excluded on the basis that it rendered the proceedings unfair in the absence of a full recording (for example by video) of what had taken place.
52.
We do not consider that there is any substance in this complaint, which was also supported by counsel for TA. The guidance given is exactly that. It is clear that the guidance has to be tailored to the individual witness and the circumstances of the case. The guidance undoubtedly places emphasis on the need for a full written record of intermediary involvement. It seems to us that the matters now relied by Mr McNulty must have been obvious to all concerned during the course of the very lengthy voir dire. The modes of communication involving RB, Mr Flynn and the BSL interpreters were all known then. Very extensive notes and other materials recording what was taking place were compiled. The judge was clearly impressed with the transparency of the exercise.
53.
We do not consider that the matters now relied on by Mr McNulty represent any significant change in the situation. In the circumstances the judge was entitled to decline to reopen the issue. Had he chosen to do so, the result would have been the same. There was nothing which could arguably have led the judge to rule out the evidence. In the course of his ruling, the judge incorporated by reference his earlier ruling in which he had carefully set out
Section 27(2)
and
Regina v Camberwell Green Youth Court [ex parte D][2005] UKHL 4
. He then referred to
R v K
[2006] 2 Cr App R 10
where Lord Justice Hooper at paragraph 23 endorsed the test:
“Could a reasonable jury properly directed be sure that the witness has given a credible and accurate account on the videotape, notwithstanding any breaches?”
54.
Mr McNulty also complained that at the close of the Crown case the judge would not permit him further to cross-examine Mr Flynn about his qualifications and the accuracy of answers given in the ABE. By that stage Mr Flynn had already been extensively cross-examined in the voir dire. He had also been cross-examined before the jury in the trial, and his competence and impartiality called into question then. The judge was fully entitled in exercising his case management powers to decline to give Mr McNulty a further bite of the cherry.
55.
We do not consider that there is any arguable point and refuse leave on this ground.
(C) – RB’s competence
56.
We give leave in relation to this ground.
57.
Section 53
of the
Youth Justice and Criminal Evidence Act 1999
provides:
“(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence….
(3) A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to – (a) understand questions put to him as a witness, and (b) give answers to them which can be understood.”
58.
Section 54(2) provides that the party calling the witness must satisfy the court of competence on a balance of probabilities. Section 54(3) provides that in determining competence, the court shall treat the witness of having the benefit of any special measures.
59.
The judge had been asked to rule on competence at a pre-trial hearing as long ago as 24
th
May 2011. In doing so he had before him the statutory provisions; he had read all the ABEs; he had sampled the DVDs of those ABEs; he had heard evidence from Dr O’Rourke, a defence witness who had examined RB. Dr O’Rourke’s evidence provided significant support for the judge’s own views. She concluded that RB was not particularly suggestible, that she had the capacity to give an account, albeit she had difficulty with abstract concepts and issues outside her experience.
60.
Dr O’Rourke’s first report stated:
“In terms of her participation in proceedings, I do not find that she lacks capacity generally, although the court would be aware that, when under examination and cross examination, her responses to questioning maybe unclear. This is in contrast to her ability to give a free narrative account of her alleged experiences.”
61.
The second report from Dr O’Rourke included this:
“The issue of [RB’s] competence lies, not in an impaired intellectual ability, but in a lack of experience of the world and lack of exposure to effective communication, i.e. British Sign Language. In spite of this, in many areas, she is skilled and perseveres well to make herself understood.”
62.
In the light of those observations, we do not think that the judge’s initial decision is capable of realistic challenge.
63.
The submissions made to us are based on the further submissions made at the conclusion of the Crown’s evidence. It is submitted that during the course of the trial difficulties arose which cast doubt upon the competence of RB. This was said to be particularly so in cross-examination. It often took a great deal of time and perseverance to obtain an answer, and the defence found it difficult properly to cross-examine in relation to inconsistencies.
64.
Regrettably an attempt to obtain a transcript of the cross examination has been unsuccessful. However, we have the benefit of detailed notes from prosecution and defence. We have examined those notes. We have to say that whilst there were undoubtedly difficulties in cross examination, very often the forensic techniques used to challenge the account being given by RB or to seek to demonstrate inconsistency are in reality examples of questioning where the questioners failed sufficiently to adapt their questions in order to take account of RB’s difficulties in communication.
65.
The Crown accepts that the witness was not clear on every point raised and could not give an answer on certain topics. However, it submits that it is necessary to look at the totality of the position. One example cited on behalf of the Appellants is an asserted failure to be able to respond to questions about benefits. We have examined that, given the focus placed on it. It seems to us that RB was sufficiently clear in explaining that she did not understand the benefits system. However, she was clear about what she had done or not done in this case. She recognised her signature on benefit forms, but said she had signed many forms at TA’s instigation. She could not read what was on those forms. She had been taken to the bank where forms were signed, and money taken out, which was then kept by TA.
66.
As stated the defence invited the judge to review the competence position at the end of the prosecution evidence. The judge considered the complaints made and rightly observed that the matter was a question of judgment. The judge acknowledged that the process of giving evidence was very slow and cumbersome, and that on occasions Mr Flynn, the intermediary, had struggled to interpret questions in a way which RB could understand. He accepted that RB was unable to answer a number of questions, particularly in relation to asserted inconsistency. However, his conclusion was that the witness had given clear understandable answers on the main areas of the case and, reviewing the statutory test, he remained of the view that RB was a competent witness.
67.
An ancillary point raised was that the lengthy cross examination might have appeared oppressive, thus generating sympathy for RB. That of course is not a competence issue. In any event the judge said he would give a suitable direction to the jury in that regard, and in due course, he did so.
68.
The initial position of the judge was that RB was a competent witness. He was well placed to revisit that conclusion after his experience of the conduct of the trial. He acknowledged that there had been difficulties and areas where the witness could not answer questions.
69.
In
R v Barker
[2010] EWCA Crim 4
this court noted at paragraph 38 that the witness need not understand every single question or give a readily understood answer to every question. Dealing with the matter broadly and fairly, provided the witness can understand the questions put to him and can also provide understandable answers, he or she is competent. What is involved is not the exercise of a discretion, but the making of a judgment.
70.
In this case the judge rightly recognised that competence was, as he put it, “witness, trial and issue specific”. We attach considerable weight to the view of the judge who was in a far better position than we are to have the feel of competence, having seen how the trial developed. In reviewing the matter, he approached it in the correct way, took account of the acknowledged shortcomings in the witness’ performance, and made a judgment.
71.
Having considered the materials drawn to our attention by counsel, we are not in any way persuaded that that judgment was incorrect. Accordingly, this ground must fail.
72.
Before we leave this ground, we will draw attention to paragraph 42 of
R v Barker
. There is a need, both for advocates’ techniques and court processes to be adapted to enable the witness to give his or her best evidence. That will involve a degree of persistence and patience by all concerned. A witness found competent is entitled to have the best efforts made to adduce his or her evidence before the court, notwithstanding the difficulties that may exist.
73.
The judge, in our view, rightly recognised in hindsight that he had permitted cross examination to go on too long. The essential nature of the defence case was that RB was being treated well and as a member of the family. Cross-examination to challenge RB’s account of maltreatment and to seek to establish the defence case could have been much simpler and did not need to turn over every stone. Much cross-examination was of a sort which was an oblique comment on the evidence, such as the attempts to demonstrate inconsistency, and could probably have been entirely disposed of or dealt with in much more summary form.
(D) – The racist juror
74.
We give leave to argue this ground.
75.
In the light of the matters summarised above, Mr McNulty, supported by the other defence counsel, submitted that the judge should have discharged the whole jury. He relied on
Sander v UK
as supporting that course on the basis that the judge’s actions provided no sufficient guarantees to exclude legitimate doubts about the impartiality of the jury. He accepted that the presumption of jury impartiality had not been subjectively rebutted, but relied on paragraph 27 of
Sander
where the European Court said:
“The court must also examine whether the court was impartial from an objective point of view, i.e. whether in the circumstances there were sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the court.”
76.
He relied on two particular matters, firstly, the racist juror’s initial implication that other jurors had made racist comments outside the jury room, and secondly, the fact that nine members of the jury had been willing to ignore the racist remarks and continue with their deliberations, and would have done so but for the intervention of the notewriter.
77.
It is clear that the response of a judge in a situation like this must be fact specific in the methods adopted in seeking to ensure that the jury is objectively impartial. The advantage this judge had, denied to the judge in
Sander
, was that there was no dispute about the primary facts. Each juror acknowledged that the note written to the judge was accurate. When the racist juror made the comment upon which the defence rely, the judge immediately examined her about it, with the result that she produced nothing to justify the remark, and indeed retracted it. Notwithstanding that, the judge examined each of the other ten jurors separately as to whether they were aware of any racist comments made outside the jury room, and received the same negative answer.
78.
This aspect of the enquiry was careful and thorough. The effect of the racist juror’s evidence was that there was nothing to indicate that any other juror had made a racist comment at any time, and this was confirmed by the separate examinations of the other jurors. Accordingly, there was nothing to rebut the presumption of impartiality recognised in paragraph 25 of
Sander
in relation to this aspect of the matter.
79.
The defence submissions proceeded on the basis of scepticism, relying heavily on the juror’s initial remark, and treating the subsequent examination of it by the judge with her and other jurors as being of no value. We do not think this was the correct approach. The judge examined the position with care, as he was required to do because of the initial remark, but in the end was entitled to conclude that his examination had laid concerns arising from it to rest. What the judge did was to avoid speculation, and instead he made an appropriate investigation.
80.
An important factor in his conclusion on this issue must have been the confirmation from the notewriter, who on the evidence would have been especially alert to any signs of racism by other jury members, that he had seen no evidence of this.
81.
As to the second limb of the argument, namely the nine jurors’ reluctance to draw the racist juror’s comment to the judge’s attention, this was a factor in the judge’s mind in his assessment of the situation. The judge heard submissions from counsel on this topic before ruling. He considered whether a fair-minded and informed observer would conclude that there was a real possibility or danger that the jury were or would be biased. He concluded that each juror examined had spoken truthfully, particularly in relation to making or hearing any racist comment during the course of the trial. He was satisfied that the notewriter was a man of moral courage and fortitude who would not feel pressurised by other jurors. He recognised that a legitimate concern arose from the reluctance of some of the other jurors to bring the racism matter to the attention of the court, but concluded that there was no evidence whatsoever to indicate that the remaining jurors would not decide the case impartially and solely in accordance with the evidence presented to them. He made a specific finding that no juror was racially biased, and that each juror could decide the case on the evidence.
82.
Having come to that conclusion, he brought the jurors back into court, reminded them of their oath and the need to decide the case solely on the evidence. He then invited each juror to confirm that his/her decision would not in any way be affected by considerations of race, colour or religion. Each juror did so.
83.
We consider that the judge handled this potentially difficult situation in a careful and appropriate fashion. He carried out a full investigation, aided by the fact that there was no issue about what had occurred. We are satisfied that in the circumstances he took sufficient steps to be able properly to conclude that the remaining jurors could return verdicts in accordance with their oaths, unclouded by prejudice. In our judgment the necessary guarantees of impartiality referred to at paragraph 27 of
Sander
were in place. Accordingly, this ground does not afford a basis for challenging the convictions, and we dismiss it.
(E) – Video recording cross-examination
84.
Ms Wade for TA, supported by Mr McNulty for IA, contended that the judge should have acceded to their request that a video recording should have taken place of the cross-examination of RB. Her evidence in chief, of course, was visually available through the ABE DVD. Their argument was that because Mr Flynn, the intermediary, and RB were conversing via an idiosyncratic means, there needed to be a video record of that to enable, inter alia, the defence experts to check whether Mr Flynn was properly communicating what RB had to say. Not to have acceded to the request was unfair because there did arise in the course of the trial disputes concerning Mr Flynn’s communication work. In those circumstances there was a need for a record which could be checked. The audio tape would be insufficient.
85.
The provisions of
Section 28
of the
Youth Justice and Criminal Evidence Act 1999
are not yet in force. However, we accept that a court has power to adapt its procedures so as to ensure that a Defendant has a fair trial. The experienced judge said he had never come across such a request before, but he did enquire into what facilities were available notwithstanding the fact that the defence request arose at the start of the trial and after many weeks of pre-trial and/or preparatory hearings in the preceding year.
86.
The judge found that the course requested was not a practical possibility in the circumstances. That seems to us to be a relevant factor, albeit not decisive if otherwise the trial would be unfair. We are wholly unpersuaded that the judge’s refusal to take this step rendered the trial in any way unfair. Mr Flynn himself had intervened during the trial to correct transcript errors in relation to the ABE DVDs, and had liaised with defence experts to agree accurate amendments.
87.
The defence had the benefit of Dr O’Rourke and Mr Nicholson as experts monitoring the communications between Mr Flynn and RB throughout. There were indeed occasions where they raised matters of incorrect communication by Mr Flynn. We have seen examples of such issues being raised, and of the judge intervening and dealing with them.
88.
There is no doubt that the defence were critical of Mr Flynn and that there were episodes in the trial where the issue of whether he was performing his job accurately and correctly were raised. We consider that those episodes demonstrate that the trial process was working. At the close of the case the defence were critical of Mr Flynn’s performance, and in summing-up, the judge on more than one occasion put those criticisms to the jury in clear terms.
89.
After due consideration we are unpersuaded that there is anything in this point. The decision which the judge made was entirely reasonable in the circumstances and well within his case management powers. We are not persuaded that the subsequent conduct of the trial shows that his decision was wrong or that the trial was arguably rendered unfair by the absence of the requested video record. We refuse leave on this ground and dismiss it.
(F) – IA’s submission of no case on Counts 1 & 2
90.
On behalf of IA it is submitted that the judge should have acceded to a submission of no case to answer in relation to Counts 1 and 2. The argument which the judge rejected was that there were no acts of IA which amounted to the arranging or facilitation of RB’s arrival in the UK in 2006 and 2009.
91.
We accept that the necessary arrangement or facilitation would have to have occurred at a point prior to arrival in the UK or, if not, at a point very close in time afterwards.
92.
Mr McNulty submitted that there was no evidence of any physical act done by IA which facilitated or arranged for RB’s travel to the UK. There was evidence that TA had purchased travel tickets and that she had accompanied RB on the flights concerned. As against IA, Mr McNulty said that whilst there may have been evidence of knowledge on IA’s part, and that on the second occasion he had travelled to the airport at the same time as his wife and RB, he had not accompanied them on the journey.
93.
In rejecting the submission, the judge did not demur from the proposition that IA had not made any arrangements personally. He held that it was not necessary for the prosecution to prove that. He said that it was sufficient for the Crown to prove that IA was party to the arrangements or the facilitation. The judge identified a number of pieces of evidence given by RB showing that IA and TA were jointly in control of decisions relating to RB’s travel, including journeys to the UK. Moreover, the evidence of what had happened to RB by way of exploitation before and after the relevant journeys at the home of IA and TA was material from which an inference of joint involvement in the arrangements could be inferred. IA had been in Pakistan immediately prior to RB’s journey on each occasion. He was the head of the family, and at all material times involved in events relating to her treatment.
94.
We consider that there was ample material for a jury to infer from the evidence adduced by the Crown that IA was party to the acts of arrangement or facilitation, which it was acknowledged existed in the case of TA, his wife. We refuse leave and dismiss this ground.
(G) – IA’s complaint about summing-up on Counts 1 & 2
95.
Associated with the preceding ground is an argument that the judge did not properly sum up Counts 1 and 2. Mr McNulty submitted that the judge should have specifically directed the jury that the arrangement or facilitation involved had a nexus with the arrival of RB in the United Kingdom, and that without such a direction, there was a danger that the jury would conclude that the provision of food and a home after arrival in the United Kingdom were sufficient to constitute the actus reus of the offence.
96.
We reject this submission. The case was never put on that basis. In the summing-up the judge specifically put IA’s case on the basis that TA and RB returned to the UK, while he remained in Pakistan for a while. He had not been concerned with RB’s travel arrangements, and had not helped her to travel to the UK, nor had he asked anyone to help her to travel. The judge then pointed out that in TA’s case, she had paid for RB’s flights and accompanied her, so that the elements of arranging and facilitating were satisfied in her case.
97.
He then put IA’s case to the jury on the basis of whether or not he was a party to what his wife was doing. The jury could have been left in no doubt that they had to focus on the travel arrangements and whether IA was party to them. As the judge put it:
“Are we sure that the Defendant was involved in arranging or facilitating the arrival of RB into the United Kingdom…, and that is sure that the Defendant was an active participant in bringing RB back to the UK.”
98.
The matter could not have been more clearly put. We reject this submission. We refuse leave and dismiss this ground.
(H) – IA’s submission of no case on benefit offences
99.
The case against IA on the benefit counts centred on tenancy agreements (Counts 19 and 23) and a change of address form (Count 24) which showed on their face that IA had signed such agreements as landlord of 11 Cromwell Road where RB was, for the purposes of the benefit claims, said to have been a tenant. The change of address form purported to show a change of address back to 11 Cromwell Road from 13 Cromwell Road, an address at which she had never lived. Further, her evidence showed that she was never a tenant at 11 Cromwell Road, albeit she lived there, and knew nothing of the agreements other than she recognised her signature thereon. She had written her signature on many documents at the instigation of TA. She paid no rent and the effect of her evidence was that the tenancy agreements were each a sham to obtain benefits.
100.
The relevant documents had gone before the jury during the course of the trial without any objection. There was nothing in IA’s defence statement to suggest that he had not signed the documents. On their face the documents appeared to bear IA’s signature and contain details entirely consistent with the grant of a tenancy by him. It was admitted that IA was indeed the landlord of a number of properties, including 13 Cromwell Road.
101.
Mr McNulty made no suggestion of any sort during the course of the prosecution case to the effect that IA had not signed the documents which had been placed in evidence without objection. The reason for this became apparent when IA gave evidence. He accepted that the signature on the documents were indeed his, or if not his, had been put there by his wife with his authority as sometimes happened.
102.
In those circumstances the point taken before the judge must have come as a considerable surprise, if not an ambush. The point is entirely technical and devoid of any substantive merit. The judge rejected the submissions, pointing out the absence of any indication to the contrary in the defence statement, and stating that a reasonable jury, properly directed, could properly infer that IA signed all of the documents in question.
103.
Mr McNulty initially submitted to us that the documents were real evidence and not hearsay, but he then submitted that insofar as they purported to be signed by IA, they were hearsay since the Crown wanted to prove that it was true that they had been signed by IA. The Crown accepted before us that in this respect the documents were hearsay. The matter was not fully argued before us, and there was no analysis of the statute or any case law.
104.
We have some doubts as to the correctness of the Crown’s concession (see for example
Pattison v DPP
[2005] EWHC 2938 (Admin)
), but will proceed on the basis that the concession was properly made. It seems to us that the documents were properly admissible under
Section 117(1)
of the
Criminal Justice Act 2003
as business documents. IA did have a business of letting properties and making tenancy agreements. Whilst, of course, the Crown case was that the document was a sham, we consider that the position is no different from any other fraudulent claim in a document made in a dishonest course of business.
105.
Additionally, it seems to us that these documents were admissible under Section 114(1)(c), on the basis of agreement. The document had been served in advance of the trial as part of the prosecution case, the defence were aware of its existence, and prior to the admission of the documents before the jury, no objection whatsoever was taken to their admissibility.
106.
In the light of
Emlyn Williams t/a Williams of Porthmadog v Vehicle and Operator Services Agency
[2008] EWHC 849 (Admin)
the judge was entitled to regard the evidence, if hearsay, as admitted by agreement. Moreover, the Crown had submitted a hearsay notice pursuant to Rule 34.2 of the Criminal Procedure Rules. Such a notice is not necessary for a
Section 117(1)
business document. It is, however, apt to cover an application to admit hearsay pursuant to Section 114(1)(d). No counter-notice was served objecting to the introduction of the hearsay evidence. Rule 34.4(2) provides that in the absence of such counter-notice, the court will treat the evidence as if it were admissible by agreement. Had there been a contested application under Section 114(1)(d), we are confident that in the circumstances the judge would have admitted the evidence.
107.
In our judgment, the judge rightly held that there had been a failure of compliance with
Section 6
A(1)(b) of the
Criminal Procedure and Investigations Act 1996
. In this respect IA had not indicated a significant matter of fact on which he took issue with the prosecution. The consequence of this is that by virtue of Section 11(2)(f)(ii) and Section 11(5)(b) the court or jury may draw such inferences as appear proper in deciding whether the accused is guilty of the offence.
108.
Mr McNulty in response seeks to rely on Section 11(10) which provides that a person shall not be convicted of an offence solely on an inference drawn under subsection (5). We do not consider that this point assists him. The jury had evidence from RB that she did not live at 13 Cromwell Road. She said she did not know what any document she signed was about and that she had signed all documents on instructions.
109.
We are satisfied there is nothing in this point and we refuse leave.
(I) – Admissibility of violence by TA and others
110.
Objection was taken on behalf of TA at the start of the trial to the admissibility of evidence of violence by TA and other named family members towards RB. The judge held that the evidence was admissible at common law by reason of the definition of bad character at
Section 98
of the
Criminal Justice Act 2003
, which provides:
“References in this Chapter to evidence of person’s “bad character” are to evidence of, or a disposition towards, misconduct on his part, other than evidence which –
(a) as to do with the alleged facts of the offence with which the Defendant is charged…”
111.
Ms Wade submitted that the evidence of violence was not sufficiently linked to Count 1 and 2 to bring it within
Section 98
(a). She did not argue that the evidence was irrelevant to the case, but submitted that since it was not covered by
Section 98
(a), it could only have been admissible under Section 101(1)(c) or (d), in relation to which the Crown would have had additional hurdles to surmount.
112.
Counts 1 and 2 require an intention to exploit the victim in the United Kingdom.
Section 4(4)
of
the 2004 Act
provides:
“For the purposes of this section a person is exploited if (and only if) –
(a) he is the victim of behaviour that contravenes Article 4 of the Human Rights Convention (slavery and forced labour)…”
113.
The case was put on this basis rather than other bases within
Section 4(4)
of
the Act
. We have considered
R v K
[2011] 2 Cr App R 34
, where this court examined core elements of Article 4 of the Human Rights Convention, namely “slavery”, “servitude” and “forced or compulsory labour”.
114.
It is clear to us that forced labour can include violence. However, Ms Wade’s submission was that in this case there was insufficient nexus between violence inflicted on RB and the facts of the offences. In the light of
R v Mullings
[2011] 2 Cr App R 2
, which includes a helpful review of authorities in this area, Ms Wade retreated from her written submissions, based on
R v Fox
[2009] EWCA Crim 653
, that the exception in
Section 98
(a) was only wide enough to embrace the actus reus of the offence. In our judgment, she was right to do so; the observations in
Mullings
are properly to be preferred to the obiter comments of the court in
Fox
.
115.
Notwithstanding that concession, Ms Wade’s submission to us remained that the violence was insufficiently connected to the alleged forced labour to satisfy the exception in
Section 98
(a). Moreover, she argued that some of the violence had been committed prior to the acts complained of in Counts 1 and 2, which took place in 2006 and 2009 respectively.
116.
We accept that to come within the exception, the evidence must relate directly to the offence charged, be reasonably contemporaneous with it and be associated closely with it. It is not a requirement that the misconduct involved is essential to proof of guilt; direct relevance will be sufficient.
117.
The Crown’s case was that IA and TA and others had used violence and threats of violence to force RB to work for them over an extended period of time, including the period specified in the indictment. The evidence also covered a timeframe prior to the indictment, but it was part of a continuum of violence related to the exploitation of RB prior to the two offences indicted. The violence was central to the case that RB had been exploited. Violence prior to the two alleged counts was directly germane to the element of an intention to exploit after arrival in the United Kingdom.
118.
The evidence of violence by others was of violence inflicted by TA2, AT and WT. In the cases of TA2 and AT, the violence was part of the picture relating to work which RB had to carry out for the A family, and was inflicted in that context. In the case of WT, the evidence of a link between his violence and the forced labour is less clear. However, the evidence was of a single incident when food was thrown and, if not properly admitted, could have had no material bearing on the outcome of the case.
119.
We are satisfied that the judge’s ruling was correct. We refuse leave and this ground is dismissed.
(J) – FA and severance
120.
Mr Robinson asserts that FA’s case should have been severed from the rest of the case at a point in the trial, during the cross-examination of RB by counsel for IA, when RB said that she had told FA that IA had been having sex with her, and secondly, asserted that FA had physically assaulted her. It was acknowledged at the time by the Crown that both these areas of evidence were irrelevant and inadmissible as against FA. Indeed, prior to the trial the Crown had agreed to edit the ABE interviews to exclude matters in these areas insofar as they affected FA.
121.
Mr Robinson, therefore, applied to the judge for severance and discharge of the jury in FA’s case. The judge declined to do so, saying he could deal with the matter in summing-up. Mr Robinson’s complaint is that in essence the matter could not be properly dealt with in that way.
122.
The offending evidence was given on 13
th
March 2012. We note that the jury did not retire until 25
th
July 2012, some two and a half months later. The inadmissible comments were made in general terms amid a vast amount of detailed evidence given by RB over a period of several weeks of court time, and indeed, over a number of months in real time due to various adjournments.
123.
Nonetheless Mr Robinson argued that this was an attentive jury, and that the inadmissible matters referred to both sex and violence, which were significant features of the case involving IA and TA, but not FA. He argued that the prejudice caused was irredeemable. For understandable reasons Mr Robinson did not cross-examine FA on these points, nor did he adduce evidence from FA in relation to them.
124.
We are not persuaded that there is any arguable point here. The judge gave a clear direction in the summing-up; firstly, as to treating the applicants separately, and secondly, in the case of FA, by telling the jury in the clearest terms that they should only consider the evidence in relation to the benefit counts in looking at the case against her. The jury were provided with in written form, repeated in summing-up, an extremely clear route to verdict document setting out the specific matters which the jury had to consider in FA’s case. The document focused correctly on the issue of dishonesty in her case. The question was whether she had dishonestly signed forms which were to be used in making benefit claims for RB.
125.
It was, moreover, clear to the jury that FA was in a very different position from IA or TA. The case against her was confined to the benefit claims and not in any way based on allegations of violence which lay behind the principal matters IA and TA faced. The episode complained of was relatively brief and, as the judge said, represented passing comment.
126.
We are satisfied that the judge was correct to refuse severance, and that he dealt with the matter appropriately thereafter. In our judgment, there is no tenable argument and refuse leave on this point.
(K) – FA’s submission of no case
127.
The submission to the judge acknowledged that the statements made in the documents signed by FA for the purposes of benefit claims were false in material particulars, for example, as to whether or not RB was working, and as to where she lived. FA acknowledged signing them. She did not merely sign as a witness, but signed in confirmation of the fact that she had as far as possible confirmed with RB that the answers written on the form were correct.
128.
The submission made was that there was no evidence that by so signing FA had been acting dishonestly as the statute requires. Mr Robinson unsuccessfully argued that the mere fact of signature was insufficient to raise a prima facie case.
129.
This was a document which required a degree of verification of the claim made by another person. FA provided that verification, and certified to say that she had checked the relevant information. Had she done so, RB would not have confirmed what it said about her work and place of residence.
130.
In those circumstances we consider that the judge was right to reject the submission. The signing of the document by FA was sufficient to enable a jury to draw an inference from the circumstances that FA could not honestly have signed that document. That is sufficient to dispose of this submission. Other points raised on FA’s behalf, were in reality jury points. We have not been materially assisted by reference to
Flintshire County Council v Reynolds
[2006] EWHC 195 (Admin)
. That case was decided on the basis of evidence given by the defendant in that case. There was no suggestion that, having signed the relevant document, Mrs Reynolds did not have a case to answer.
131.
We refuse leave and dismiss this ground.
Conclusion
132.
For the reasons given in this judgment, all of the various grounds of appeal fail. The appeals against conviction are dismissed. | {"ConvCourtName": ["Crown Court at Manchester"], "ConvictPleaDate": ["7th August 2012"], "ConvictOffence": ["trafficking a person into the United Kingdom for exploitation", "rape", "counts of furnishing or permitting the furnishing of false information to obtain benefit", "false imprisonment", "sexual assault and unlawful wounding"], "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": ["IA and TA are husband and wife", "FA who is the daughter"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["matrimonial home at 11 Cromwell Road, Eccles."], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["trafficking"], "VictimType": ["RB"], "VicNum": ["RB"], "VicSex": ["she"], "VicAgeOffence": ["ten to twelve years of age"], "VicJobOffence": ["ten to twelve years of age"], "VicHomeOffence": ["never a tenant at 11 Cromwell Road, albeit she lived there"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["truthful and honest witness", "she was discovered by the authorities."], "DefEvidTypeTrial": ["sixteen other witnesses gave evidence for the defence", "he had done nothing to arrange or facilitate RB’s arrival"], "PreSentReport": ["data not available"], "AggFactSent": ["controlled through violence.", "with the intention of exploiting"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["three applicants"], "CoDefAccNum": ["IA and TA"], "AppealAgainst": ["against conviction"], "AppealGround": ["(H) – IA’s submission of no case on benefit", "(I) – Admissibility of violence", "many grounds of appeal.", "(A) - The role of Mr Flynn, the intermediary", "(J) – FA and severance", "(G) – IA’s complaint", "(D) – The racist juror", "(C) – RB’s competence", "(K) – FA’s submission of no case", "(F) – IA’s submission of no case", "(E) – Video recording cross-examination", "(B) – The judge’s refusal to exclude RB’s evidence"], "SentGuideWhich": ["Section 111(A) of the Social Security Administration Act 1992.", "Section 4 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004."], "AppealOutcome": ["appeals against conviction are dismissed.", "refuse leave and dismiss this ground."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we consider that the judge was right to reject the submission."]} | {"ConvCourtName": ["Crown Court At Manchester"], "ConvictPleaDate": ["2012-08-07"], "ConvictOffence": ["rape", "false imprisonment", "sexual assault and unlawful wounding", "counts of furnishing or permitting the furnishing of false information to obtain benefit", "trafficking a person into the United Kingdom for exploitation"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["data not available"], "Sentence": ["Don't know"], "SentServe": ["Don't know"], "WhatAncillary": ["data not available"], "OffSex": ["Mixed"], "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": ["10-12"], "VicJobOffence": ["Child"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["truthful and honest witness", "she was discovered by the authorities."], "DefEvidTypeTrial": ["sixteen other witnesses gave evidence for the defence", "Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["controlled through violence.", "Intent"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["2"], "AppealAgainst": ["against conviction"], "AppealGround": ["(K) – FA’s submission of no case", "(J) – FA and severance", "(I) – Admissibility of violence", "(H) – IA’s submission of no case on benefit", "(G) – IA’s complaint", "(F) – IA’s submission of no case", "many grounds of appeal.", "(E) – Video recording cross-examination", "(D) – The racist juror", "(C) – RB’s competence", "(B) – The judge’s refusal to exclude RB’s evidence", "(A) - The role of Mr Flynn, the intermediary"], "SentGuideWhich": ["Section 111(A) of the Social Security Administration Act 1992.", "Section 4 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004."], "AppealOutcome": ["Dismissed-Failed-Refused", "Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we consider that the judge was right to reject the submission."]} | 65 |
Neutral Citation Number:
[2004] EWCA Crim 1025
Case No: 200206679 B5; 200204468 D5; 200204469 D5;200306081 C5; 200400948 B5; 200304202 C4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
29 April 2004
Before :
LORD CHIEF JUSTICE OF ENGLAND AND WALES
LORD JUSTICE JUDGE
MR JUSTICE GAGE
MR JUSTICE ELIAS
AND
MR JUSTICE STANLEY BURNTON
- - - - - - - - - - - - - - - - - - - - -
IN THE MATTER OF:
Attorney General Reference No. 1 of 2004
AND BETWEEN:
Regina
- v -
Edwards
AND BETWEEN
Regina
- v -
Denton & Jackson
AND BETWEEN
Regina
- v -
Hendley
AND BETWEEN
Regina
- v -
Crowley
- - - - - - - - - - - - - - - - - - - - -
Mr David Perry and Ms Adina Ezekiel
for the Crown in the case of Edwards and AG Reference No. 1 of 2004
Mr Neil Hinton
for Edwards
Mr David Holborn
for the applicant in AG Reference No. 1 of 2004
Mr Nicholas Ham
for the Crown in the case of Jackson and Denton
Miss Emma Goodall
for Jackson and Denton
Mr Michael Burrows and Mr Bernard Linnemann
for the Crown in the case of Hendley
Mr Nigel Sweeney QC
for Hendley
Miss Azza Brown
for the Crown in the case of Crowley
Mr Michael Newport
for Crowley
Hearing dates : 23rd, 24th and 25th March 2004
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT
The Lord Chief Justice
This is the judgment of the Court to which each member of the Court has contributed.
Introduction
1.
This judgment relates to a single Attorney General’s Reference and four appeals. Except in the case of Crowley, a preparatory hearing was held in relation to each case and so we take this opportunity to give guidance as to when it is appropriate to hold a preparatory hearing. In addition, in all the cases, the defendants were alleged to have committed offences under legislation that purports to impose upon the defendant the burden of proving certain issues. We refer to these provisions as reverse burdens. In order to determine the Reference and the appeals it is necessary to try to clarify what a court’s approach should be when determining whether a reverse burden contravenes Article 6(2) of the European Convention on Human Rights ("the Convention") and, if so, what should be the consequence of that contravention.
2.
Article 6 of the Convention provides:
"1.
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law… .
2.
Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."
3.
Section 3(1) of the Human Rights Act 1998
("
HRA 1998
") requires the courts to read and give effect to legislation, whenever enacted, in a way which is compatible with the Convention rights (including Article 6). If this is not possible and the legislation is incompatible with a Convention right the court, "may make a declaration of … incompatibility" (
Section 4(2), HRA 1998)
. However, such a declaration "does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given" (
Section 4(6)(a)
,
HRA 1998)
. If primary legislation cannot be read or given effect in a way which is compatible with the Convention, a court will not be acting unlawfully if it gives effect to or enforces the legislation (
Section 6(2)(b)
,
HRA 1998)
.
4.
In relation to each reverse burden in the cases before us, it is necessary to consider first, whether it contravenes Article 6(2) of the Convention and secondly, if so, whether relying on
section 3(1) of the HRA 1998
, it is possible to interpret the legislation in a way that makes it compatible with Article 6, including, if this is possible, reading down the legislation. In practice, as we will explain, this will usually involve determining: (a) whether the particular provision imposing the reverse burden places an evidential burden on the defendant or a legal or persuasive burden (from now on referred to as a "legal burden"); (b) if it does impose a legal burden, whether the legal burden can be justified; and (c) if the legal burden cannot be justified, whether the legal burden can be read down so that it is only an evidential burden.
5.
The defendant is able to discharge an evidential burden by ensuring that there is some evidence before the court, whether as part of the prosecution’s or defence’s case, which could result in a reasonable court or jury determining the issue which is the subject of the reverse burden in the accused’s favour (see Archbold (2004), para 4-382). Once this happens, the onus reverts to the prosecution to satisfy the jury so that they are sure as to that issue, in exactly the same way as they have this responsibility in the case of the remaining matters that have to be established to prove the accused’s guilt. Because of the limited nature of the evidential burden and because the issue can be raised as a result of prosecution evidence alone, it is perhaps misleading to describe the evidential burden as a burden on the defendant at all. However, we will use that term given that it is in common currency.
6.
In the case of a legal burden, the defendant is under an obligation to satisfy a court on the balance of probabilities on the issues that are the subject of the reverse burden. The imposition of an evidential burden is therefore considerably easier to justify than a legal burden. Unlike the position in the case of a legal burden, in the case of the evidential burden there will be no question of a defendant being found guilty if the court is left with a reasonable doubt as to his guilt. The majority of domestic legislation that places a reverse burden on an accused, prior to the
HRA 1998
coming into force, would involve the accused being under a legal burden rather than an evidential burden.
Preparatory Hearings
7.
Part III (sections 28 – 38) of the
Criminal Procedure and Investigations Act 1996
("
CPIA 1996
") extended the system of preparatory hearing where an indictment reveals a "case of such complexity, or a case whose trial is likely to be of such length that substantial benefits are likely to accrue" from such a hearing (
section 29, CPIA 1996)
. There is an appeal to the Court of Appeal from any ruling of a judge at a preparatory hearing as to any question as to the admissibility of evidence or any other question of law relating to the case (
Section 35(1), CPIA 1996)
.
8.
The provisions of the
CPIA 1996
dealing with preparatory hearings are closely related to those which already existed for serious or complex fraud cases under the
Criminal Justice Act 1987
("CJA 1987"). A preparatory hearing under Part IV of the
CPIA 1996
has to be distinguished from statutory pre-trial hearings which enable judges to make binding rulings on points of law before the start of the trial (in accordance with sections 39-43 of the
CPIA 1996)
and non-statutory plea and directions hearings in accordance with the consolidated practice direction (see generally Archbold (2004) para 4-85 – 90).
Why a Five Judge Court?
9.
A five judge court was convened to hear these cases because of the issues as to reverse burdens and preparatory hearings. As to both issues there is a need for guidance. In the case of reverse burdens, there are now a considerable number of authorities from decisions of the European Court at Strasbourg, from courts in other overseas jurisdictions, from this Court and from the House of Lords. In this jurisdiction, rulings have to be made by magistrates and Crown Courts up and down the country. This can involve the citation of a very large number of authorities, many of which conflict in the message which they give. The position is illustrated by the fact that five volumes of authorities were appropriately placed before us to help us determine this issue.
10.
At the time that the hearing of this appeal was arranged, we were unaware that in relation to two recent decisions of this Court, appeals are due to be heard in the House of Lords before the long vacation. When the existence of those appeals was brought to our attention, we decided that we should nonetheless try to simplify the task of lower courts when faced with reverse burdens. It is our opinion that, as Mr Perry who appeared on behalf of the Attorney General submitted, the time has now come when it is possible to attempt to pull together the authorities so as to identify the relevant principles to be applied. In addition, we consider that it could be useful to the members of the House of Lords hearing the forthcoming appeals to know the views of the members of this Court. We have, collectively, considerable experience of the problems that are now arising in the courts because of reverse burdens. We hope that the guidance that we will set out can be readily revised to take into account any views expressed by the House of Lords when deciding the further appeals.
11.
In the case of preparatory hearings, there is a need for clarification as to when it is appropriate to have a preparatory hearing. There is also the need for assistance as to the position of this Court if what is said to be a preparatory hearing takes place without a judge properly considering whether the statutory requirements for a preparatory hearing are fulfilled or if the judge holds a preparatory hearing when the statutory requirements are not fulfilled. So far, a restrictive view has been taken by this Court as to when a preparatory hearing can be held and as to the
jurisdiction
of this Court if a preparatory hearing is inappropriately held. Both situations, in part, give rise to questions of procedure which the House of Lords usually leaves to this Court. As to the jurisdiction of this Court, that issue is unlikely to be able to go on appeal to the House of Lords because, as the authorities stand at present, leave to appeal is unlikely to be given.
Reverse Burdens
12.
Before setting out our guidance as to reverse burdens, it is necessary to review the most important authorities. Although we do so as briefly as possible this is not an insignificant task. The starting point is, of course, the classic statement of Viscount Sankey LC in
Woolmington v Director of Public Prosecutions
[1935] AC 462
at p481:
"Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused."
13.
Viscount Sankey refers to statutory exceptions. The position as to statutory exceptions was considered by the House of Lords in
Sweet v Parsley
[1970] AC 132
. Lord Reid was concerned that the courts were too readily treating serious offences as being absolute offences which therefore did not require the prosecution to prove that the defendant had any specific intent. Lord Reid was at pains to point out that a reverse burden might be preferable to a strict liability offence, that is one not requiring proof of any intent. This is an important point to bear in mind since some of the recent decisions of the courts display a readiness to read down reverse burdens that could result in Parliament increasing the number of absolute offences. To avoid this happening Lord Reid dealt with the matter in this way at p150B-F:
"The choice would be much more difficult if there were no other way open than either mens rea in the full sense or an absolute offence; for there are many kinds of case where putting on the prosecutor the full burden of proving mens rea creates great difficulties and may lead to many unjust acquittals. But there are at least two other possibilities. Parliament has not infrequently transferred the onus as regards mens rea to the accused, so that, once the necessary facts are proved, he must convince the jury that on balance of probabilities he is innocent of any criminal intention. I find it a little surprising that more use has not been made of this method: but one of the bad effects of the decision of this House in
Woolmington v. Director of Public Prosecutions
[1935] A.C. 462
may have been to discourage its use. The other method would be in effect to substitute in appropriate classes of cases gross negligence for mens rea in the full sense as the mental element necessary to constitute the crime. It would often be much easier to infer that Parliament must have meant that gross negligence should be the necessary mental element than to infer that Parliament intended to create an absolute offence. A variant of this would be to accept the view of Cave J. in
Reg. v. Tolson
(1889) 23 Q.B.D. 168
, 181. This appears to have been done in Australia where authority appears to support what Dixon J. said in
Proudman v. Dayman
(1941) 67 C.L.R. 536
, 540:
"As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant’s act innocent affords an excuse for doing what would otherwise be an offence."
It may be that none of these methods is wholly satisfactory but at least the public scandal of convicting on a serious charge persons who are in no way blameworthy would be avoided."
14.
Lord Reid’s observation that the technique of the reverse burden is surprisingly little used, even if true then, is certainly not so now. In a case to which it will be necessary to refer later,
R v Lambert
[2002] 2 AC 545
at p569, Lord Steyn points out that there are 219 statutory offences among the 540 offences triable in the Crown Court which include a reverse burden provision. Mr Perry relied on these figures to demonstrate the scale of the problems that can arise as a result of an aggressive application of Article 6. He reminded us that most of the litigation which has been generated by the European Convention becoming part of our domestic law has involved Article 6. That this should be the position is disturbing because Article 6 does no more than reflect the requirements of fairness which have long been part of English law. However, we can take some comfort from the fact that in other common law jurisdictions where a constitutional requirement such as that contained in Article 6 has been introduced, there have been similar problems to those by which we are faced, in making the European Convention directly enforceable. What is required is that the constitutional provisions of this nature should be applied reasonably and flexibly and in a manner that recognises the interests of democratically elected legislature in answering that the law can be enforced. Thus the Supreme Court of Canada, in
R v Whyte
(1988) 51 DLR (4
th
) 481, upheld a statutory presumption on a charge of having care or control of a motor vehicle while the accused’s ability to drive was impaired by alcohol. The statutory presumption provided that when it is proved that the accused occupied the driving seat he shall be deemed to have the care or control of the vehicle unless he establishes that he did not enter the vehicle for the purpose of setting it in motion. The presumption did not violate the Canadian Charter of Rights and Freedoms. In his judgment Dickson CJ explained his approach to such a presumption by saying (at p495):
"There are two major criteria. First, the objective which the measure responsible for the limit on a right or freedom is designed to serve must be sufficiently important to permit overriding the constitutionally protected right or freedom (Oakes, supra, at p. 354 C.C.C., p. 138 D.L.R.). Secondly, to show that the measures are reasonable and demonstrably justified requires an analysis of the proportionality of the measures (Oakes, supra, at p. 355 C.C.C., p. 139 D.L.R.). There are three components to the proportionality test: the measures must be carefully designed to achieve the objective of the legislation, with a rational connection to the objective. The second component is that the measure should impair the right or freedom as little as possible. Finally, there must be proportionality between the effects of the impugned measures on the protected right and the attainment of the objective."
Later the Chief Justice added:
"The next stage of the proportionality inquiry is to ask whether the impugned measure impairs the right or freedom as little as possible. With respect to s. 237(1)(a), this is the most crucial and difficult aspect of s. 1 analysis. In my view, we must recognize that Parliament was faced with a difficult task in defining drinking and driving offences. The very fact that consumption of alcohol is an element of these offences renders problematic the element of intention. Justice precludes undue reliance upon strict or absolute liability. Social protection precludes undue emphasis upon the mental element to these offences. Parliament has decided to define the offence in terms of "care or control.""
15.
The judgment then refers to the fact that Parliament had adopted a compromise between two alternatives. The wish "to discourage intoxicated people even placing themselves in a position where they can set a vehicle in motion while at the same time providing a way for a person avoiding liability when there was a reason for entering the vehicle other than to set it in motion." There was "an attempt to balance the dangers posed by a person whose abilities to reason are impaired by alcohol with the desire to avoid absolute liability offences".
16.
This approach encourages flexibility and striking a balance. Attention was also drawn to the importance of this in
R v Downey
[1992] 90 DLR (4
th
) 499 at page 466. Curry J pointed out "the proportionality test can and must vary with the circumstances. Parliament is limited in the options which it has at hand to meet or address the problem. Rigid and inflexible standards should not be imposed on legislators attempting to resolve a difficult and intransigent problem".
17.
We would also refer to the decision of the Privy Council in the
Attorney-General of Hong Kong v Lee Kwong-Kut
[1993] AC 951
which again emphasised the need for flexibility so as to allow a balance to be drawn between the interests of the person charged and the State. It was also indicated that if the prosecution retains a responsibility for proving the essential ingredients of the offence it is less likely that an exception would be regarded as unacceptable (See p969 at letter H).
18.
It is now convenient to refer to
Salabiaku v France
(1988) 13 EHRR p379, para 27. In this area
Salabiaku
can be regarded as Strasbourg’s equivalent of
Woolmington v Director of Public Prosecutions
. As
section 2(1) of the HRA 1998
requires our courts to take into account the decisions of Strasbourg, the decisions of that court are highly influential.
Salabiaku
makes it clear that the European Court recognises that the contracting states retain the ability to determine what should be the content of their substantive criminal law. Article 6 is concerned not with substantive law but the fairness of the procedure by which offences against the substantive law are tried:
"As the Government and the Commission have pointed out, in principle the Contracting States remain free to apply the criminal law to an act where it is not carried out in the normal exercise of one of the rights protected under the Convention and, accordingly, to define the constituent elements of the resulting offence. In particular, and again in principle, the Contracting States may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence. Examples of such offences may be found in the laws of the contracting states."
19.
The judgment then turns to consider how offences are proved. Although we are concerned here with reverse burdens, the judgment deals specifically with presumptions. However, for our purposes there is no difference between presumptions and the reverse burden issues which we are considering. The approach of the European Court appears from this passage of the judgment
Salabiaku v France
(1988) 13 EHRR p388, para 28:
"Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law. If, as the Commission would appear to consider, paragraph 2 of Article 6 merely laid down a guarantee to be respected by the courts in the conduct of legal proceedings, its requirements would in practice overlap with the duty of impartiality imposed in paragraph 1. Above all, the national legislature would be free to strip the trial court of any genuine power of assessment and deprive the presumption of innocence of its substance, if the words ‘according to law’ were construed exclusively with reference of domestic law. Such a situation could not be reconciled with the object and purpose of Article 6, which, by protecting the right to a fair trial and in particular the right to be presumed innocent, is intended to enshrine the fundamental principle of the rule of law.
Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence."
20.
The passage of the judgment to which we have just referred makes clear that there is nothing intrinsically indefensible in there being a reverse burden. It will, however, require to be justified. Whether or not it is justified will depend upon its terms and in particular whether it strikes the right balance between the interest of the State at stake and the rights of the defendant.
21.
We can now turn to consider the most important domestic decisions post the
HRA 1998
. The first of these cases is the decision of the House of Lords in
R v DPP ex parte Kebilene
[2000] 2 AC 326
. Although this decision was decided after the
HRA 1998
had come into force, it relates to facts that took place prior to the
HRA 1998
coming into force. However, Lord Hope of Craighead gave some general assistance as to the
HRA 1998
that provides a useful starting point for a consideration of our domestic decision. The first point Lord Hope made is that it is necessary "to identify the nature of the provision which is said to transfer the burden of proof from the prosecution to the accused because various techniques have been adopted and some are more objectionable than others" at (p378 F/G). In particular he identified the distinction between a legal burden and an evidential burden and makes the important point that in the case of an evidential burden:
"If it is put in issue, the burden of proof remains with the prosecution."
He adds,
"They are not incompatible with Article 6(2) of the Convention. They take their place alongside the common law evidential presumptions which have been built up in the light of experience" (at p379 A/C).
22.
Examples of an evidential burden being placed on an accused by our law are not hard to find, a good example being provided by self-defence. However, in the case of statutes which reverse the onus of proof, the accused usually has to meet a legal burden. Lord Hope next turns to statutory presumptions. He classifies them in accordance with submissions which had been made by Mr Pannick, as follows:
"First there is the "mandatory" presumption of guilt as to an essential element of the offence. As the presumption is one which must be applied if the basis of fact on which it rests is established, it is inconsistent with the presumption of innocence. This is a matter which can be determined as a preliminary issue without reference to the facts of the case. Secondly, there is a presumption of guilt as to an essential element which is "discretionary". The tribunal of fact may or may not rely on the presumption, depending upon its view as to the cogency or weight of the evidence. If the presumption is of this kind it may be necessary for the facts of the case to be considered before a conclusion can be reached as to whether the presumption of innocence has been breached. In that event the matters cannot be resolved until after trial.
The third category of provisions which fall within the general description of reverse onus clauses consists of provisions which relate to an exemption or proviso which the accused must establish if he wishes to avoid conviction but is not an essential element of the offence." (at p379 D-G).
23.
As Lord Hope makes clear, the process of classification "is not an exact science". Furthermore, the fact that a provision breaches the presumption of innocence does not lead inevitably to the conclusion that the provision is incompatible with Article 6(2) (at p380 B-D).
24.
Lord Hope also deals with the area of choice left to the executive or the legislature to balance the rights of the individual against the needs of society. As he says:
"In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention. This point is well made at p. 74, para. 3.21 of
Human Rights Law and Practice
(1999), of which Lord Lester of Herne Hill and Mr Pannick are the general editors, where the area in which these choices may arise is conveniently and appropriately described as the "discretionary area of judgment." It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection. But even where the right is stated in terms which are unqualified the courts will need to bear in mind the jurisprudence of the European Court which recognises that due account should be taken of the special nature of terrorist crime and the threat which it poses to a democratic society:
Murray v. United Kingdom
(1994) 19 E.H.R.R. 193
, 222, para. 47." (at p381 B-E)
25.
The fact that there is this need for a balancing between the different interests involved was also emphasised by Lord Bingham of Cornhill in the Privy Council in
Brown v Stott
[2003] 1 AC 681. As Lord Bingham said, "judicial recognition and assertion of the human rights defined in the Convention is not a substitute for the processes of democratic government but a complement to them". (p834H-835A)
26.
We can now move forward to two decisions of the House of Lords which are of the greatest importance in considering the relationship between Article 6 and reverse burdens. The earlier of these two cases is
R v Lambert
[2002] 2 AC 545
. Here, it is the speech of Lord Steyn that requires the most careful attention, although the parts of his speech on which we need to focus were obiter. There is no doubt that his views have influenced many later decisions. Lord Steyn suggests that the legislature in this jurisdiction has "frequently and in an arbitrary and indiscriminate manner made inroads on the basic presumption of innocence" (at p569 B).
27.
Lord Steyn cites the eloquent explanation of Sachs J as to the significance of the presumption on innocence in
The State v Coetzee
[1997] 2 LRC 593
at p677/8, para 220. However, while regarding the logic of Sachs J’s reasoning as inescapable, Lord Steyn still recognises that "limited inroads on the presumption of innocence may be justified". The inroads require justification and must not be greater than necessary. In addition, the principle of proportionality must be observed (570 at F). Lord Steyn is also unimpressed by distinctions between the constituent element of a crime because they "sometimes will be unprincipled and arbitrary …sometimes a matter of which drafting technique is adopted: a true constituent element can be removed from the definition of the crime and cast as a defensive issue when any definition of an offence can be reformulated so as to include all possible defences within it. It is necessary to concentrate not on techniques and niceties of language but rather on matters of substance" (see para 35 at p570/571).
28.
Perhaps the most important part of Lord Steyn’s speech is where he deals with proportionality. Here he considers in detail "the relative merits of the transfer of a legal burden on an important element or issue to the accused, as opposed to the creation of a mere evidential burden" (see para 37-41 commencing p572).
29.
In the context of the prosecution of drug cases, where the relevant facts are usually particularly within the knowledge of the possessor, Lord Steyn explains why, in his opinion, the fears centred on the ability of an accused in a drugs case to manipulate the system are not well founded. He refers to steps which have been taken to strengthen the hands of the prosecution. As a result he considers that the devices which may be attempted should "generally in practice receive short shrift". He finds support for his approach in the decisions in the jurisprudence of Canada and South Africa for a view "that a reverse legal burden is a disproportionate means of addressing the legislative goal of easing the task of the prosecution" in the cases under consideration.
30.
The views expressed by the other members of the House were not as forceful as those of Lord Steyn. Lord Slynn stated:
"If read in isolation there is obviously much force in the contention that section 28(2) imposes the legal burden of proof on the accused in which case serious arguments arise as to whether this is justified or so disproportionate there is a violation of article 6(2) of the Convention rights … in balancing the interests of the individual in achieving justice against the needs of society to protect against abusive drugs this seems to me a very difficult question but I incline to the view that this burden would not be justified under article 6(2) of the Convention rights. (p563 D/F)."
31.
Lord Hope was of the opinion that the burden should be an evidential one; however, he added that, "an evidential burden is not to be thought of as a burden which is illusory. What the accused must do is put evidence before the court which, if believed, can be taken by a reasonable jury to support his defence." The problem with this approach is that in our experience, it is in practical terms difficult to achieve this ‘halfway house’ favoured by Lord Steyn and Lord Hope. A defendant need do no more than raise the issue; indeed, it is only necessary that it should be raised and this may be as a result of evidence adduced by the prosecution. Lord Clyde was also of the opinion that the statutory provision imposed an evidential burden of proof on the accused, though he added, "it is to be noted that the practical effect of the burden on the defendant may not have been very significant". Lord Hutton, who took a different view, considered that the problem could not be "resolved by placing an evidential burden on the defendant and that it is necessary to impose a persuasive burden" (p625 E-G). Earlier he had said "the presumption is neither irrebuttable or unreasonable. To oblige the prosecution to prove that the defendant knew that the substance was a controlled drug in many cases would make it very difficult to obtain a conviction" (p620 D).
32.
Not surprisingly, courts in this jurisdiction have paid considerable attention to Lord Steyn’s assessment of the position but perhaps not sufficient weight has been given to Lord Hutton’s views. A substantial increase in the challenges to all reverse burdens which hitherto in accordance with our general domestic approach have been regarded as creating a legal burden has been generated. The indications are that this is leading us to repeat the experience of both Canada and South Africa as to the number of technical challenges which are being made as to statutory provisions containing reverse burdens.
33.
Lord Steyn did not consider that treating the reverse burdens as imposing merely an evidential burden gave rise to incompatibility. He considered the legislative provision could be read down under Article 3 so that it only imposed an evidential burden. However, reading down the statutory provision in this way has also given rise to difficulty, as we will see later.
34.
As to the difference in approach between Lord Hutton and Lord Steyn on the efficacy of a persuasive burden, it may be of assistance to the Appellate Committee to know that in practice our collective experiences are
the same as Lord Hutton’s. Some of the later decisions suggest a similar reaction by other members of the constitutions of this Court.
35.
The next case to which we should refer is the decision of the House of Lords in
R v Johnstone
[2003] 1 WLR 1736
. Speeches were given by Lord Nicholls of Birkenhead and by Lord Walker of Gestingthorpe. All the other members of the Committee agreed with Lord Nicholls. The case arose out of the charging of the defendant with trademark offences contrary to section 92(1)(c) of the Trademarks Act 1994. The defendant has a defence under section 92(5) of the Act if he can show that he honestly and reasonably believed that there was no infringement of the registered trademark. Again, the decision on the relevant issues was obiter. Section 92(5) imposes on the accused person the legal burden of proving the relevant facts on the balance of probability. On this issue there were conflicting decisions in the Court of Appeal.
36.
To assist the House of Lords to determine what should be the right approach, there was an extensive citation of authority. Having referred to
Coetzee, Kebilene
and Lambert
, Lord Nicholls indicated that:
"A sound starting point is to remember that if an accused is required to prove a fact on the balance of probability to avoid conviction, this permits a conviction in spite of the fact-finding tribunal having a reasonable doubt as to the guilt of the accused: see Dickson CJ in
R v Whyte
(1988) 51 DLR (4
th
) 481, 493. This consequence of a reverse burden of proof should colour one’s approach when evaluating the reasons why it is said that, in the absence of a persuasive burden on the accused, the public interest will be prejudiced to an extent which justifies placing a persuasive burden on the accused. The more serious the punishment which may flow from conviction, the more compelling must be the reasons. The extent and nature of the factual matters required to be proved by the accused, and their importance relative to the matters required to be proved by the prosecution, have to be taken into account. So also does the extent to which the burden on the accused relates to facts which, if they exist, are readily provable by him as matters within his own knowledge or to which he has ready access.
In evaluating these factors the court’s role is one of review. Parliament, not the court, is charged with the primary responsibility for deciding, as a matter of policy, what should be the constituent elements of a criminal offence. I echo the words of Lord Woolf in
Attorney-General of Hong Kong v Lee Kwong-Kut
[1993] AC 951
, 975:
"In order to maintain the balance between the individual and the society as a whole, rigid and inflexible standards should not be imposed on the legislature’s attempts to resolve the difficult and intransigent problems with which society is faced when seeking to deal with serious crime."
The court will reach a different conclusion from the legislature only when it is apparent the legislature has attached insufficient importance to the fundamental right of an individual to be presumed innocent until proved guilty." (p1750, paras 50-51)
37.
Lord Nicholls also pointed out that the offences which he was considering attract a serious level of punishment. However, because those who trade in counterfeit products are aware of the need to be on a guard against counterfeit goods and the defence relates to facts within the accused person’s own knowledge, he came to the conclusion that section 92(5) could appropriately place a legal burden on the accused without contravening Article 6. In doing so, he referred to the fact that in practice, if the prosecution had to prove "that a trader acted dishonestly fewer investigations would be undertaken and fewer prosecutions would take place".
38.
Lord Steyn and Lord Nicholls were considering different statutory provisions and it does not follow that they would have used the language which they did if they were considering other statutory reverse burden provisions. Nonetheless, it does appear there is a significant difference in emphasis between their approaches. In practice, a legal burden is much more likely to have to be reduced to an evidential burden on Lord Steyn’s approach than it is on Lord Nicholls’ approach. Indeed, it is likely that few provisions will be left as imposing a legal burden on Lord Steyn’s approach. Lord Nicholls clearly gives greater weight to the language used by Parliament than does Lord Steyn. In addition, Lord Steyn considers, contrary to our experience, that there is little need to have a legal burden because he considers an evidential burden will suffice to achieve the objective of the reverse burdens. He also considers that to meet the requirement of proportionality a necessity for the legal burden to be imposed has to be shown if it is to survive. The combination of this standard of necessity, coupled with the suggestion that evidential burden will meet the need in most if not all situations leaves virtually no discretion to the legislators as to how to achieve their objective. If an evidential burden would suffice, no greater burden must be imposed. Lord Nicholls’ approach is more flexible. He sees the court as reviewing the choice made by Parliament, although not in a judicial review sense, rather, in a sense that reflects the intent of the
HRA 1998
, which was to achieve a careful balance between the role of Parliament and the courts. Their statements in both speeches were obiter, but Lord Nicholls’ was later in time and unlike Lord Steyn’s speech was endorsed by the other members of the House. We suggest that until the position is clarified by a further decision of the House of Lords, lower courts should follow the approach of Lord Nicholls rather than that of Lord Steyn if they are in doubt as to what should be the outcome of a challenge to a reverse burden.
39.
The remaining authorities to which we should refer are decisions of this Court. We do so because they demonstrate the extent to which Lord Steyn has influenced later decisions in this Court. The first example was in the case of
L v DPP
[2003] QB 137
. In this case the approach of Lord Steyn in
Lambert
[2002] 1 AC 545
was distinguished. In the course of giving his judgment, Pill LJ referred to the views expressed by Lord Steyn and Lord Hope in
Lambert
. He then indicated that an evidential burden "may not in substance be a burden on the defendant at all. Evidence raising the issue will often emerge from the evidence direct and circumstantial called by the prosecution". We agree with this view. A judge when directing a jury must be circumspect not to withdraw an issue that has been raised for a jury’s consideration. The robust approach recommended by Lord Steyn, based on dicta of Lord Lane CJ in a different context, could result in appeals to this Court by defendants as to whether an issue had or had not been raised so as to satisfy an evidential burden. Later Pill LJ said, with regard to a statutory requirement that a defendant should provide "proof", that an evidential burden was not the best example of the use of the word proof. It would deprive the word "proof" as commonly used inside and outside the criminal courts of any meaning.
40.
An example of this Court following the approach indicated in
Lambert
before the decision in
Johnstone
is provided by
R v Carass
[2002] 1 WLR 1714
. (We will refer to this decision when expressing our conclusions as to the Reference and the appeal of
Edwards
.) In
R v S
[2003] 1 Cr App Rep 35, 602, despite the decision in
Lambert
, this Court in relation to section 92 of the Trademarks Act 1994 dismissed an appeal from a decision holding at a preparatory hearing that section 92(5) of the Trademarks Act 1994 imposed a legal burden. The language required the accused "to show that" he had the belief on reasonable grounds that the goods were genuine. The reverse burden was held not to relate to an essential element of the offence and therefore Article 6(2) had no application. In any event, the reverse burden was held by the Court to be necessary, justified and proportionate. It was not unfair.
41.
In contrast there is the decision in
Sheldrake v Director of Public Prosecutions
[2003] 2 WLR 1629
(one of the two cases due to be heard by the House of Lords). It is a decision of the Divisional Court, presided over by Clarke LJ. Henriques J dissented. It demonstrates clearly what can be the consequences of the
Lambert
approach. Like
Whyte
in the Supreme Court of Canada, it was a case where the defendant was accused of being in charge of a motor vehicle after consuming an excessive amount of alcohol, contrary to
section 5(1)(b)
of the
Road Traffic Act 1988. Section 5(2)
of the
Road Traffic Act 1988
provided that:
"It is a defence for a person charged with an offence under subsection (1)(b) above to prove that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle while the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limits."
42.
Clarke LJ applied the approach indicated by Lord Steyn in
Lambert
. He decided section 5(2) had to be read down so it imposed only an evidential burden on the accused. The first of his key points that Clarke LJ identified is in these terms:
"It is to my mind wrong to regard the question whether there was likelihood or otherwise of the accused driving as a defence except in narrow common law terms. It is part of the essence of substance of the offence because the seriousness of the offence itself depends upon the risk of driving. It is driving while over the limit which threatens lives and property on the road." (Para 82(i))
It is true that the burden placed on the prosecution was relatively easily discharged; it was to prove that there was a real risk, as opposed to a fanciful risk, that the defendant would drive. Even so, we question whether this construction was required.
43.
A different approach is certainly possible. Parliament could have intended that because of the risks to the public from a person driving under the influence, a person in charge was to be guilty of an offence on these facts alone, and this was the substance of the offence. However, there was to be an exception, if and only if it was one of the rare cases where a driver could prove there was no likelihood of his driving whilst still over the limit. On this approach Parliament intended to send the message to those in charge of a vehicle when under the influence that they would be found guilty subject to this
limited exception. We do not, as did Clarke LJ, regard the maximum punishment being 3 months as being contrary to this alternative approach.
44.
At the end of his judgment when dealing with this aspect of the situation, Clarke LJ states:
"It is only recently that it has been recognised that, in the context of reverse burdens which derogate from the presumption of innocence enshrined in Article 6(2) of the Convention, the question whether the particular provision should be construed as imposing a legal burden or read down as imposing an evidential burden is whether it was
necessary to impose a legal burden
." (p1653, para 84)
45.
This approach to the use of the word "necessary" obviously reflects Lord Steyn’s approach. It fails to allow for the fact that the primary decision as to what action should be taken to protect the public from drivers who are in charge of vehicles when over the limit is for Parliament. It is not without interest that the Canadian decision in
Whyte
provides no support for this approach.
46.
In his dissenting judgment, Henriques J suggests that "a regime requiring the prosecution to prove that there was a likelihood of driving would be neither workable nor effective" and that "insuperable difficulties could confront the police in the event of an evidential burden" (See para 103). These observations continue to have some, albeit diluted, force even where the burden on the prosecution is only to establish a real risk.
47.
The case of
Sheldrake
was distinguished by this Court presided over by Latham LJ in the
Attorney General’s Reference (No. 4 of 2002
)
[2003] 2 Cr App Rep 22
. Again, the decision in
Lambert
was carefully considered. The section involved was
section 11 of the Terrorism Act 2000
. That section provides:
"1.
A person commits an offence if he belongs or professes to belong to a prescribed organisation.
2.
It is a defence for a person charged with an offence under subsection 1 to prove (a) that the organisation was not prescribed on the last (or only) occasion on which he became a member or began to profess to be a member, and (b) that he has not taken part in the activities of the organisation at any time while it was prescribed. "
48.
The Attorney General referred two questions for the opinion of the Court, the second of which was "does the defence contained in
section 11(2) of the Terrorism Act 2000
impose a legal rather than an evidential burden of proof on the accused and, if so, is such a legal burden compatible with Article 6(2) and 10 of the Convention". This Court came to the conclusion that Parliament intended that a person should be guilty of an offence irrespective of whether or not he had played any active part in the organisation. So, there was no breach of Article 6(2). Alternatively, any infringement of that Article by the imposition of a persuasive burden was justified and proportionate. In distinguishing both
Lambert
and
Sheldrake
, Latham LJ pointed out, on the approach adopted by the respective decisions, that in
Lambert
the gravamen of the offence was knowledge, while in
Sheldrake
the gravamen of the offence was a risk of driving. By contrast, in the case they were considering, it was clearly intended by Parliament that a person should be guilty of an offence irrespective of whether or not he had played any active part in the organisation.
49.
Finally, we refer to
R v Daniel
[2003] 1 Cr App Rep 6
because like the Reference before us and the case of
Edwards
it deals with an offence to which
section 352 of the Insolvency Act 1986
("IA Act 1986") provides "a defence". The judgment of the court was delivered by Auld LJ who presided. The primary ground for the decision was that the
HRA 1998
was not in force at the time of the relevant decision. However, Auld LJ in his judgment dealt with the position as if the
HRA 1998
had been in force and indicates the view that it would have been necessary to read down
section 352
of the IA Act 1986 to give effect to Article 6(2) because the Court was bound by the decision in
Carass
. In doing so, the reasoning of the Court was clearly set out in the following paragraphs:
"In our view, unless it can be distinguished, the reasoning of the Court in
Carass
, albeit on different provisions of the IA Act 1986, is binding on us. The nature of the offence in section 206(1)(a) and (2) and that of the defence, with its reverse burden of proof in section 206(4), and their relationship one with another, are sufficiently similar in form and purpose to the later provisions in the Act that we are considering to make both the context and the reasoning of
Carass
indistinguishable. It, therefore binds us.
But for that conclusion, we could not have construed
section 352
as imposing only "an evidential burden of proof", whatever that may mean, on a defendant. That is because, with respect to their Lordships’
obiter
views in
Lambert
and the Court’s ruling in
Carass
, the words "if he proves" must, as a matter of plain English, mean more than the evidential raising of an issue for the protection to refute beyond reasonable doubt. See Professor Di Birch’s commentary on
R. v Lambert
in [2001] Crim. L.R. 807, especially the last paragraph to that effect on page 809, helpfully drawing attention to the following words of Lord Devlin, giving reasons for the advice of the Board in
Jayasena v R.
[1970] A.C. 618
at 624C-E, PC (seemingly not cited in
Lambert
):
"Their Lordships do not understand what is meant by the phrase ‘evidential burden of proof’. They understand, of course, that in trial by jury a party may be required to adduce some evidence in support of his case, whether on the general issue or on a particular issue, before that issue is left to the jury. How much evidence has to be adduced depends upon the nature of the requirement. It may be such evidence as, if believed and left uncontradicted and unexplained, could be accepted by the jury as proof. It is doubtless permissible to describe the requirement as a burden, and it may be convenient to call it an evidential burden. But it is confusing to call it a burden of proof. Further, it is misleading to call it a burden of proof, whether described as legal or evidential or by any other adjective, when it can be discharged by the production of evidence that falls short of proof. The essence of the appellant’s case is that he has not got to provide any sort of proof that he was acting in private defence. So it is a misnomer to call whatever it is that he has to provide a burden of proof …"
It is true that
section 3(1)
requires courts, through the medium of interpretation, to strive for compatibility, if necessary to reading necessary safeguards into a statute or by giving a provision a meaning that it would not ordinarily bear. But there must be some limit to the extent to which the plain meaning of statutory language can be ignored or simply changed in the cause of securing compatibility. Those who are governed by, and seek to order their conduct according to, statutory words are entitled to a broad measure of certainty as to what they mean, not some contrary or wholly different meaning which a court, if and when the matter reaches it, might or might not consider permissible under
section 3(1)
driven by an imperative to find compatibility at all costs.
In our view, where there is plain incompatibility between the ordinary and natural meaning of statutory words
whatever the context
, and Article 6(2), the courts should take care not to strive for compatibility by so changing the meaning of those words as to give them a sense that they cannot, in the sense intended by
section 3(1)
,
possibly
bear."
50.
We have set out Auld LJ’s reasoning because it is important in relation to the Reference where in view of our conclusions, it will be necessary for us to consider whether we should read down what was intended to be a legal burden so that it becomes an evidential burden. This is a separate topic to which we must now come.
Reading Down
51.
Section 3 of the HRA 1998
requires an interpretative exercise. Auld LJ, dealing with the same section with which we are concerned, namely
section 352
of the IA Act 1986, clearly sets out the difficulties in reading down that section. However, in the same way as Auld LJ would have followed
Carass
on this issue if it had been necessary so to do, we here apply
Lambert
where all their Lordships (except for Lord Hutton, who did not consider the issue) thought the burden could be treated as an evidential one. We also draw attention to the fact that sections involving reverse burdens deal with the onus of proof but make no reference to the standard of proof. This is invariably the case with legislation of this nature. When legislation puts the onus on the prosecution it does not state what is the standard of proof. It is taken for granted. The position is the same when the onus is placed on a defendant. The section is silent as to the standard of proof if this cannot be gleaned from the use of a word such as "proof". The Court then applies the appropriate standard. The exercise might not, therefore, strictly be one of interpretation. Rather, it is a case of Parliament having required a reverse burden and the court being left with the responsibility of applying the appropriate standard of proof according to the circumstances. On this approach, there should be no difficulty in a court deciding that an evidential standard is appropriate. Taking into account
section 3 of the HRA 1998
and the general assumption that Parliament does not intend to legislate in a manner which contravenes Article 6, it is acceptable to treat the same section as requiring the application of a legal burden in one situation and an evidential burden in a different situation when the same statutory "defence" applies to different provisions in the same legislation (see the Reference and
Edwards
).
Guidance to the Crown and Magistrates Courts
52.
We are very conscious that we have discussed the authorities at length. However, we have not done so in an exhaustive manner. Many other authorities could have been referred to. At least our examination provides convincing evidence that the authorities would benefit from being reconciled so as to ease the task of courts of first instance who have to apply reverse burden provisions. The House of Lords will be in a much better position than we are to clarify the position. However, what we can attempt to do is to try to provide the same guidance for lower courts. The guidance is of a general nature and will need to be applied lightly and recognising that it may not be appropriate in all situations, lower courts should be robust and not allow extensive argument. Our hope is that, if courts bear in mind the following general principles, they will not go far wrong.
The General Guidance
A)
Courts should strongly discourage the citation of authority to them other than the decision of the House of Lords in
Johnstone
and this guidance.
Johnstone
is at present the latest word on the subject.
B)
The common law (the golden thread) and the language of Article 6(2) have the same effect. Both permit legal reverse burdens of proof or presumptions in the appropriate circumstances.
C)
Reverse legal burdens are probably justified if the overall burden of proof is on the prosecution i.e., the prosecution has to prove the essential ingredients of the offence, but there is a situation where there are significant reasons why it is fair and reasonable to deny the accused the general protection normally guaranteed by the presumption of innocence.
D)
Where the exception goes no further than is reasonably necessary to achieve the objective of the reverse burden (i.e. it is proportionate), it is sufficient if the exception is reasonably necessary in all the circumstances. The assumption should be that Parliament would not have made an exception without good reason. While the judge must make his own decision as to whether there is a contravention of Article 6, the task of a judge is to "review" Parliament’s approach, as Lord Nicholls indicates.
E)
If only an evidential burden is placed on the defendant there will be no risk of contravention of Article 6(2).
F)
When ascertaining whether an exception is justified, the court must construe the provision to ascertain what will be the realistic effects of the reverse burden. In doing this the courts should be more concerned with substance than form. If the proper interpretation is that the statutory provision creates an offence plus an exception that will in itself be a strong indication that there is no contravention of Article 6(2).
G)
The easier it is for the accused to discharge the burden the more likely it is that the reverse burden is justified. This will be the case where the facts are within the defendant’s own knowledge. How difficult it would be for the prosecution to establish the facts is also indicative of whether a reverse legal burden is justified.
H)
The ultimate question is: would the exception prevent a fair trial? If it would, it must either be read down if this is possible; otherwise it should be declared incompatible.
I)
Caution must be exercised when considering the seriousness of the offence and the power of punishment. The need for a reverse burden is not necessarily reflected by the gravity of the offence, though, from a defendant’s point of view, the more serious the offence, the more important it is that there is no interference with the presumption of innocence.
J)
If guidance is needed as to the approach of the European Court of Human Rights, that is provided by the
Salabiaku
case at para 28 of the judgment where it is stated that "Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires states to confine them within reasonable limits which take into account the importance of what is at stake and maintains the rights of the defence".
Preparatory Hearings
53.
We now turn to consider preparatory hearings. Here it is necessary to distinguish between preparatory hearings under Part III of the
CPIA 1996
and statutory pre-trial hearings under Part IV of the same Act. Both can make a valuable contribution to the effective judicial management of cases, the importance of which is increasing.
54.
The decision to order a preparatory hearing under Part III rather than a pre-trial hearing under Part IV has at least three immediate consequences for the trial itself. First, an order for a preparatory hearing, in effect, starts the trial (
section 30
). As explained in
Re Kanaris
[2003] 1 WLR 443
this impacts on the protection provided by
section 2(2) of the Prosecution of Offences Act 1985
for defendants who are remanded in custody. Further, it establishes the identity of the trial judge who, having ordered and decided the preparatory hearing, should then normally preside over the subsequent trial
(R v Southwark Crown Court ex parte Commissioners for Customs and Excise
[1993] 1 WLR 764
). Third, provided leave to appeal is obtained in the usual way, the decisions of the trial judge at the preparatory hearing may be appealed to this Court. If so, the empanelling of the jury must be postponed until the appeal is determined, or abandoned (
section 35(1)
). Therefore, although the trial is started, there is a simultaneous risk of delay due to the possibility of an interlocutory appeal to this Court. These significant consequences immediately distinguish the statutory regime of a preparatory hearing from the different statutory regime of a pre-trial hearing and ruling.
55.
We must notice two further developments, already enacted in the
Criminal Justice Act 2003
("CJA 2003"), and awaiting implementation. By
sections 309
and
310
of the
CJA
2003, amendments will be made to Part III of the
CPIA 1996
. We shall refer to them in their context. Perhaps more important, by
Part 9
of the
CJA
2003, the prosecution is given a general right of appeal in respect of evidentiary "rulings" made by the judge during or for the purposes of the trial, which include rulings that the defendant has no case to answer. In short, before long, the system of interlocutory appeals will be further extended. This will have implications for the work of this Court, in particular the arrangements for listing and disposing of appeals against conviction as well as sentence, and the organisation of limited resources. There is, therefore, a risk that an increased use of interlocutory appeals could gradually permeate the criminal justice system so that the need for trials to be driven forward to their eventual conclusion will somehow be perceived to be less imperative. As against this risk it needs to be recognised that appeals against preparatory hearings have a real advantage for long or complex cases. They can, for example, avoid the unnecessary quashing of convictions and retrials because of misdirections and they can substantially shorten trials.
56.
It follows that the decision whether to proceed to a preparatory or pre-trial hearing requires an informed judgment, and close attention to the statutory provisions which create the jurisdiction to order a preparatory hearing. By
section 29 of the CPIA 1996
a judge of the Crown Court lacks power to order a preparatory hearing unless:
"(1) … it appears to [him] that an indictment reveals a case of such complexity, or a case whose trial is likely to be of such length, that substantial benefits are likely to accrue from a hearing –
(a) before the jury are sworn, and
(b) for any of the purposes mentioned in subsection (2) …
(2) For the purposes of those of
(a) identifying issues which are likely to be material to the verdict of the jury;
(b) assisting their comprehension of any such issues;
(c) expediting the proceedings before the jury;
(d) assisting the judge’s management of the trial."
57.
The "seriousness" of the case will add to the criteria of complexity and length when the amendments made by
sections 309
-310 of the CJA 2003 come into force.
58.
It is clear that this jurisdiction cannot be vested by agreement between the parties, nor indeed just because a preparatory hearing may, notwithstanding the potential disadvantages already identified earlier in this judgment, be thought useful or beneficial. As Lord Bingham of Cornhill explained in
R v Shayler
[2003] 1 AC 247
at 265:
"… resort to this procedure is only permissible where the case appears complex or likely to lead to a lengthy trial. But in such cases the procedure can be highly beneficial."
59.
Before ordering a preparatory hearing, the judge must therefore identify factors relevant to the criteria, whether complexity, or likely length, or both, bearing in mind the specific, but limited purposes identified in
section 29(2) of the CPIA 1996
. By referring to what may be revealed by the indictment itself, the language of
section 29(1)
differs from that used in
section 7 of the CJA
1987, which refers to "the evidence on an indictment …". In practical terms, however, the judgment cannot be made solely on the basis of a study of the terms or length of the specific indictment, which while likely to reveal something about seriousness (not yet a factor relevant to the judge’s consideration) will provide him with negligible, and at times, positively misleading information about the complexity or potential length of the case. We do not think the enquiry can be so confined, and the statutory provisions in
section 29(2)
and (3) demonstrate that it is not.
60.
Consideration of the indictment on its own cannot assist the judge to evaluate all the purposes which he is expressly required to consider by
section 29(2) of the CPIA 1996
. If his analysis were confined to the indictment alone, in the vast majority of cases the judge would be unable to reflect and make decisions to enhance case management of the trial and its efficient progress before the jury. Moreover,
section 29(3)
requires that where the judge, considering whether to order a preparatory hearing, concludes that the evidence on an indictment reveals a case of fraud which comes within
s 7(1) of the CJA
1987, he may not make an order under
section 29 of the CPIA 1996
but must order the case to proceed under the CJA 1987. It seems to us improbable that the judge should be examining the evidence for this purpose, while he is simultaneously excluded from considering the evidence relevant to complexity or length for the purposes of
section 29(1)
. In these circumstances, notwithstanding the difference in the language between
section 7 of the CJA
1987 and
section 29(1) of the CPIA 1996
, the judge’s decision should be made on a basis which achieves consistency between the two sections. Accordingly, under
section 29(1)
the judge is entitled to consider the evidence which is likely to be called and, having done so, to make his own judgment whether in the particular case he should order a preparatory or pre-trial hearing.
61.
When the judge in the Crown Court has purported to accept jurisdiction, it may be apparent that he misdirected himself by assuming jurisdiction on an impermissible basis, for example, simply that it would be "convenient" for a question of law to be decided, or, without referring to the hearing as a preparatory hearing at all, or because it might be useful for the prosecution to test his ruling on appeal before the trial (
R v Ward & ors
[2003] 2 Cr App Rep 315). If, however, the judge has addressed the issues of complexity and length, in the context of the declared purposes of any preparatory hearing, and decided to proceed on the basis that the potential advantages outweigh the disadvantages, this Court will be reluctant to set aside what under the section and, on the facts of the individual case, is a matter for judicial assessment and decision by the trial judge.
62.
There will be cases which obviously fit within the relevant statutory criteria and purposes. There will be others where these issues are not as clear-cut. The judge may, for example, decide to start the investigation on the basis that he has in mind to make a pre-trial ruling under Part IV, and then, during the course of the argument, decide that on analysis the relevant criteria are established. As a matter of jurisdiction we see no reason why, having heard from both sides and exercising his discretion, the judge may not conclude that a preparatory hearing should be ordered and start then and there.
63.
If there is no relevant material on which the judge can properly conclude that the case fell within
section 29(1)
, there is no jurisdiction to make an order for a preparatory hearing under
section 29
and unless the House of Lords concludes otherwise, this Court similarly lacks jurisdiction. This appears to follow from a consistent line of authority in relation both to
section 7 of the CJA
1987 and
section 29 of the CPIA 1996
, of which
R v Ward & ors
provides an illuminating recent example. In
R v Ward & ors
, again consistent with authority, the court declined to hear any argument on the substantive point raised in the appeal. However, it does not necessarily and inevitably follow that this Court is precluded from inviting argument and making observations about the substantive issue for the assistance of the Crown Court, if it sees fit. Not to do so could lead to grave inconvenience if, for example, a case then as a result proceeded on a wrong understanding of the law.
64.
The present appeals provide a good example. The reverse burden of proof and the possible application of Article 6(2) of the European Convention of Human Rights, arise in different circumstances. It has been helpful to our decision of principle to hear and consider argument in each of the cases which raised different aspects of the same problem. Having done so, we can see no reason why we should, and practical reasons why we should not, decline to make any observations about the impact of the reverse burden of proof in every one of these cases, even where the trial judge failed to distinguish between a preparatory and a pre-trial ruling, or even where none of the necessary criteria for a preparatory hearing in fact existed. On any view, in each of these cases an important and potentially controversial point of law needed decision, or at the very least, analysis and discussion, and even if persuaded that the criteria for a preparatory hearing may not have been established in one or other of them, to the extent that we think appropriate, we are entitled to express our views on these issues as they impact on each case.
65.
It is convenient if we now turn to the facts of the individual cases and then set out our conclusions in respect of each case. However, we will begin combining our conclusions in respect of the Reference and
Edwards
as they involve a consideration of the same statutory provisions.
Attorney General No. 1 of 2004
66.
Section 353(1) of the IA Act 1986 provides that a bankrupt shall be guilty of an offence if:
"… (b) He does not inform the official receiver or the trustee of any disposal of any property which but for the disposal would be so comprised, stating how, when, and to whom and for what consideration the property was disposed of."
67.
Section 357(1) of the IA Act 1986 provides for a further offence by a bankrupt who,
"… makes or causes to be made, or has in the period of five years ending with the commencement of the bankruptcy made or caused to be made, any gift or transfer of, or any charge on, his property."
68.
Section 352
of the IA Act 1986 provides that, among others, the offences identified in section 353(1) and 357(1) shall not apply to the bankrupt who:
"… proves that, at the time of the conduct constituting the offence, he had no intent to defraud or to conceal the state of his affairs."
69.
This Reference by the Attorney General under
section 36 of the Criminal Justice Act 1972
seeks this Court’s consideration and opinion on two points of law:
(1) Does
section 352
of the Act read with sections 357(1) and 353(1) of the Act breach Article 6 if interpreted as imposing a legal burden on the defendant?
(2) If so, can
section 352
be interpreted, applying
section 3 of the HRA 1998
, so as to impose a merely evidential burden on the defendant?
70.
The relevant facts can be summarised very briefly. On 12 November 1999, UCB Home Loans Corporation Ltd had presented a petition in bankruptcy against the defendant. Her deficiency was estimated at £17,600. The defendant was declared bankrupt on 6 January 2000.
71.
On 21 January 2000 she attended the office of the Official Receiver. She therefore made a narrative statement and completed form B40.01. She stated that she had no cash held by anyone for her and that she had not in the previous five years transferred, sold or given away any of her possessions or assets for less than their value/cost. She declared that she had been the joint owner, with her brother, of three properties in Beech Station Road, but stated that she had received only £3,547 from the sale of these properties, and that she had repaid some of her debts from the proceeds of sale.
72.
The defendant failed to disclose that in the five years prior to her bankruptcy she owned a four bedroom detached property in Tomline Road which she sold on 17 August 1998 for £96,500. This formed the basis of the alleged contravention of section 353(1) of the IA Act 1986. The defendant also failed to disclose that a few days later, on 20 August 1998, she transferred £82,000 of the proceeds to her then partner of five years. This transaction formed the basis of the alleged contravention of section 257(1).
73.
Not long afterwards, on 4 September 1998, this sum was used to purchase another property at South Hill which became the home of the defendant, her partner and her young son which was sold in February 2001. Thereafter the relationship between the defendant and her partner broke down. His whereabouts is currently unknown. The official receiver was unable to recover any of the £82,000.
74.
When interviewed, the defendant explained that the transfer of the £82,000 had taken place when her partner promised to take care of her son should she die. At the time of the transfer she was suffering from depression. In evidence at trial, the defendant stated that she had been diagnosed with cancer in November 1997, and that following operative treatment, she recovered in January 1998.
75.
On 8 May 2003, at Ipswich Crown Court, before Mr Recorder Hamblen QC, at a pre-trial hearing, the trial judge ruled that
section 352
of the IA Act 1986, read with sections 357(1) and 353(1) imposed a legal burden on the defendant to prove the lack of intent to defraud or to conceal on the balance of probability, but that the imposition of such a legal burden unjustifiably interfered with the presumption of innocence guaranteed under Article 6. Accordingly, these sections should be read down under
section 3 of the HRA 1998
so as to impose no more than an evidential burden on the defendant.
76.
Following that ruling, the case proceeded as a trial before the jury. The defendant gave evidence. She was acquitted.
R v Edwards
77.
This is an appeal from a decision by HHJ Hooton at Winchester Crown Court on 21 October 2002 on a hearing treated by him as a preparatory hearing under
section 29 of the CPIA 1996
. During the course of that hearing he considered the same issue as Mr Recorder Hamblen QC in relation to section 357(1) of the IA Act 1986, and the reverse burden of proof in
section 352
.
78.
The defendant is charged on an indictment alleging six counts relating to the fraudulent transfer of property in the five years before her bankruptcy in 2000. The allegation is that she spent money on holidays and gifts while owing money to her creditors. She pleaded not guilty on the basis that she had no intention to defraud her creditors at the time when she was disposing of her property. In essence, she admits that she was bad at managing her financial affairs, but asserts that she was not dishonest.
79.
After hearing argument, Judge Hooton concluded that in due course he would "direct the jury that the defendant has the burden of proving on the balance of probabilities that she had no intention to defraud or conceal the state of her affairs." He could see no incompatibility with Article 6. He gave permission to appeal. When Mr Hamblen gave the ruling which has resulted in the present Reference by the Attorney General, he was not aware of Judge Hooton’s ruling.
Conclusions as to Attorney General’s Reference No. 1 of 2004 and R v Edwards
80.
Insolvency offences have long been regarded as subject to special rules. The
Debtors Act 1869
created a number of offences on the part of bankrupts, and in several cases the onus was placed on the defendant to prove that he had no intent to defraud. So did the
Bankruptcy Act 1914
. The
Companies Act 1948
included a similar code in relation to offences committed by those involved in insolvent companies. The Report of the Cork Committee into Insolvency Law and Practice of 1982 (Cmnd. 8558), which led to the enactment of the IA Act 1986, stated that the Law Commission considered that insolvency offences should continue to be dealt with outside the general criminal law because:
"being a bankrupt … justifies the imposition of more stringent criminal liability than would be appropriate for solvent citizens."
81.
The reasons for this are not difficult to see. The law gives those involved in the affairs of a company the benefit of its corporate personality and in the case of most companies the additional very great benefit of limited liability. In the case of individual insolvency, the law relieves the bankrupt of personal liability for his debts, which are met out of his estate. These benefits drastically affect the rights and remedies of creditors. The proper working of our insolvency law depends on the inclusion in the assets of an insolvent company and in the estate of a bankrupt of all the assets that should be comprised in them. It can be tempting for those involved in the management of a company or a bankrupt to conceal or to dispose of such assets to the disadvantage of creditors. Furthermore, such concealment or disposals may be done by a person alone and in private: a failure to record or to disclose an asset, or a disposal of stock at an undervalue or the making of a disposal for nil consideration, may be known only to those involved in the transaction. There may well be no independent witnesses to the act in question. Whether there has been fraud will often be known only to the individual or individuals who are alleged to have committed the fraud.
82.
In our judgement, these considerations will normally justify the imposition on a defendant, who is proved to have deliberately acted in a manner that gives rise to an inference that he sought to defraud his creditors, of the burden of proving, on a balance of probabilities, that he did not intend to do so. In such cases, we bear in mind that Parliament might have created an offence to which fraud was irrelevant. It will be less easy to justify a reverse burden of proof in other cases: such offences must be considered individually.
83.
In
R v Carass
this Court held that in order to avoid incompatibility with the Convention section 206(4) of the IA Act 1986 must be read as imposing only an evidential burden on the defendant, i.e., that the imposition of a legal burden of proof was unjustified and would infringe Article 6(2). The Court did not refer to the special considerations that apply to insolvency offences referred to above. That case was decided before the decision of the House of Lords in
Johnstone
. In
Carass
, Waller LJ, giving the judgment of the Court, said, at [60]:
"Furthermore, what we would glean from
R v Lambert
is that albeit it
may
be possible to justify imposing a legal or persuasive burden, the onus on those seeking to persuade the court that that is necessary in any case is a high one."
84.
However, as appears above, the House of Lords has moved on since
Lambert
. The Court in
R v Daniel
was understandably doubtful as to the correctness of
Carass
. We think that the Court in
Carass
would have reached a different conclusion if it had adopted the approach subsequently expressed in
Johnstone
. It follows that the decision in
Carass
cannot stand with
Johnstone
, and must be treated as impliedly overruled.
85.
We turn to consider the offences that are the subject of the Attorney General’s Reference, beginning with that created by section 357(1) of the IA Act 1986. Notwithstanding the drafting of that provision, it is clear that fraud is an integral constituent of the offence. We say this not only because of the side note "Fraudulent disposal of property" (as to the relevance of which see the observations of the House of Lords in
R v Schildkamp
[1971] AC 1
) and the description of the offence in Schedule 10 to the IA Act 1986 ("Bankrupt fraudulently disposing of property"), but because, more importantly, it is unlikely that Parliament would have wished to render criminal and punishable with up to two years’ imprisonment a disposition of property made innocently up to five years before the commencement of the bankruptcy. Moreover, unless fraud is an integral constituent of the offence, the effect of bankruptcy is retrospectively to render criminal a disposition that was innocent when made.
86.
Section 352
of the IA Act 1986 in its ordinary meaning imposes a persuasive or legal burden of proof on the defendant to disprove that (in relation to section 357) he had an intent to defraud. The question therefore arises whether that is justified.
87.
The ambit of section 357 of the IA Act 1986 is very wide indeed. It applies to disposals of property made long before the commencement of bankruptcy, and possibly at a time when there was no indication of insolvency. The prosecution does not have to prove that the bankrupt was aware of the possibility of his insolvency when he made the gift or disposal. There is no time limit on prosecutions. They cannot be brought until the insolvent has been made bankrupt, and are unlikely to be brought until a significant time afterwards. There is no minimum value of the gift or transfer for which the bankrupt may be called to account. The prosecution does not have to establish anything unusual or irregular in relation to the gift or disposition.
88.
We have seen nothing to indicate that Parliament addressed these characteristics of the offence when imposing a reverse burden of proof. There was no similar offence in the
Bankruptcy Act 1914
. The Cork Committee referred to that Act, and stated, in paragraph 1888:
"Under section 157(1)(c), an offence is committed by a bankrupt who fails to account for the loss of any substantial part of his estate incurred within a period of one year prior to the presentation of the petition. We recommend that this period should be increased to two years and that there should be an obligation to account for any depreciation of assets as well as for any loss of assets. A similar amendment was made by section 265(1)(h) of the Australian Bankruptcy Act 1966, following the recommendations of the Clyne Committee."
89.
That recommendation was of a far more limited offence than that created by section 357 of the IA Act 1986. The Committee did not recommend the creation of that offence. Parliament did not implement this recommendation: see section 354(3) of the IA Act 1986.
90.
In our judgement, to require the bankrupt against whom it is proved only that he has made a gift or other disposal or created a charge within 5 years before his bankruptcy to prove that he had no intent to defraud is not justified and infringes Article 6(2).
91.
Mr Perry suggested that the fact that by virtue of section 350(5) no prosecution may be brought under Chapter VI of the IA Act 1986 except by the Secretary of State or by or with the consent of the Director of Public Prosecutions is relevant to the compatibility of the provisions of that Chapter with Article 6. We disagree. Article 6 is concerned with the procedure relating to the trial of a criminal offence. The decision whether or not to prosecute is not the subject of Article 6. The appropriateness of a reverse burden, like the fairness of the trial, cannot depend on who decides whether there should be a prosecution.
92.
Section 352
of the IA Act 1986 applies to a number of offences under Chapter VI of the Bankruptcy Act. In the light of
Lambert
, we accept that in appropriate cases it may be read down as imposing no more than an evidential burden of proof. Its effect within Chapter VI depends on the context of its application. In section 357(1), it has to be so read.
93.
We turn to consider section 353(1)(b). It is subject to subsection (2):
"Subsection (1)(b) does not apply to any disposal in the ordinary course of a business carried on by the bankrupt or to any payment of the ordinary expenses of the bankrupt or his family."
94.
In order to bring a defendant within section 353(1)(b), therefore, the prosecution must prove:
i.
that the bankrupt failed to inform the official receiver of a disposal of property that but for the disposal would be comprised in his estate; and
ii.
that the disposal was not in the ordinary course of business or made in payment of his ordinary living expenses.
95.
It would be a normal inference from the failure to inform the official receiver of an unusual disposal that the bankrupt intended to defeat the claims of creditors or to conceal the state of his affairs. We see nothing unreasonable for a bankrupt against whom the above facts have been proved beyond reasonable doubt to have to establish on a balance of probabilities that when he failed to inform the official receiver of the disposal he did not intend to defraud or to conceal the state of his affairs. The intention of the defendant when he failed to inform the official receiver of the unusual transaction will be peculiarly within his knowledge, and he will know what his motive was. We do not think it apparent that the legislature attached insufficient importance to the fundamental right of an individual to be presumed innocent until proved guilty. Accordingly, we hold that section 353(1)(b) read together with
section 352
is compatible with Article 6(2).
96.
In the case of
Edwards
, when HHJ Hooton decided that the hearing before him was a preparatory hearing, he did not refer to the requirements of
section 29 of the CPIA 1996
and therefore made no finding whether they were satisfied. The material before us does not justify the conclusion that the case was complex or that the trial, which would have lasted only a matter of days was likely to be long. In these circumstances, despite the apparent convenience of the course he took, the judge should not have treated the hearing before him as a preparatory hearing. The trial should have proceeded and the issue as to the correctness of his ruling taken on appeal in the event of a conviction.
97.
However, it follows from our conclusions that the decision of HHJ Hooton in the case of
Edwards
was incorrect. The jury should be directed to the effect that the defendant only bears the burden of establishing that there is an issue as to whether the defendant intended to defraud (that being the intent alleged by the prosecution, as appears from the case summary), and that the prosecution then bears the burden of proving that in making the gifts and transfers referred to in her indictment, she intended to defraud her creditors.
98.
In the Attorney General’s reference, Mr Recorder Hamblen QC came to the right conclusion and correctly directed the jury in relation to the offence charged under section 357(1), but to the wrong conclusion in relation to section 353(1). His direction under that section was unduly favourable to the defendant.
99.
We answer the questions of law that are the subject of the Attorney-General’s reference as follows:
i.
Section 352
of the IA Act 1986 read with section 357 of the Act does breach Article 6 of the European Convention on Human Rights if interpreted as imposing a legal burden on the defendant.
ii.
Section 352
of the IA Act 1986 read with section 353(1) of the IA Act 1986 does not breach Article 6 of the European Convention on Human Rights if interpreted as imposing a legal burden on the defendant.
iii.
Section 352
can be interpreted, in its application to section 357(1), so as to impose a merely evidential burden on the defendant.
We allow the appeal in
Edwards
.
R v Denton & Jackson
100.
Denton and Jackson are charged with an offence of unlawful eviction, contrary to
section 1(2) of the Protection from Eviction Act 1977
. This provides:
"If any person unlawfully deprives the residential occupier of any premises of his occupation or the premises or any part thereof, or attempts to do so, he shall be guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises."
101.
On 25 July 2002, HHJ Carroll sitting at Woolwich Crown Court concluded that the burden of proving the statutory defence was not in conflict with Article 6(2).
102.
Leave to Appeal was granted by the single judge on the basis that this decision followed a preparatory hearing, under
section 29(1) of the CPIA 1996
, and that the correctness of the judge’s ruling should be considered by the Court of Appeal Criminal Division.
103.
For the purpose of this ruling, the relevant facts were not in dispute. In February 2001, the appellants let a property at 8 Greyfriars House, Colerain Road, Blackheath, London SE3 to Natalie Sands on an assured shorthold tenancy for a period of six months, beginning on 23 February 2003. A deposit of £1,000 was paid, and rent of £800 was payable monthly in advance.
104.
Ms Sands moved into the property on 23 February 2001. Shortly afterwards she made a number of complaints about items requiring repair. Communications with both defendants, and an employee of the estate agents who had secured the tenancy, broke down. This led Ms Sands to request an early release from the tenancy agreement. She was told that this course would not be acceptable to Mr Denton. In advance of the payment due on 23 April 2001, Ms Sands cancelled the standing order for payment of rent, stating that she did this with the intention that payment should take account of the problems of disrepair.
105.
On 25 April, when Ms Sands arrived at the premises at 6.45pm she found that her key would not fit the door. The door was opened by Ms Jackson, who, among other things, told Ms Sands that she no longer lived at the premises. She was ordered to remove her belongings and leave. A short struggle then developed between Ms Jackson and Ms Sands, and, after Ms Sands had called the police, in their presence she was permitted to remove some of her property from the flat. The appellants were present throughout. Thereafter Ms Sands spent the night in a hotel, and the remaining items of her property were delivered to the offices of the estate agent. In short, the appellants had deprived her of the occupation of the flat.
106.
The defence case was that Ms Sands had left the premises before 25 April and she only returned to the property on that evening to collect her belongings. At the door to the flat she had behaved aggressively towards Ms Jackson. The police had simply acted as mediators while she removed her property. The appellants had not deprived her of the premises. In any event, the appellants believed and had reasonable cause to believe that she had ceased to reside at the flat.
Conclusion as to Denton & Jackson
107.
For convenience we set out again
section 1(2) of the Protection from Eviction Act 1977
:
"If any person unlawfully deprives the residential occupier of any premises of his occupation or the premises or any part thereof, or attempts to do so, he shall be guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises."
108.
There is no dispute that the natural meaning of the words "unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises" is to impose a burden on the defendant to establish his reasonable belief on the balance of probabilities. The prosecution, however, has to prove beyond reasonable doubt the other elements of the offence.
109.
In order for there to be a lawful eviction it is necessary for the landlord to obtain a possession order and, if necessary, a warrant of execution. Parliament has clearly taken the view that an attempt to circumvent these procedures ought to be visited by criminal sanctions and that the potential for abuse and exploitation by landlords justifies this step. But the defence allows the landlord to escape criminal liability even where he unlawfully deprives the occupier of the premises if he reasonably believed that the premises were free to be occupied.
110.
Miss Goodall for the appellants submitted that as in
Lambert
and
Carass
it could properly be said that the gravamen of the offence was that the landlord should know that the victim was still occupying the premises, otherwise the mischief of the legislation was not advanced. Accordingly, this should be a matter which the prosecution ought to establish in the usual way. Moreover, she asserted that even if she were wrong about this, the circumstances were not such as to justify the reverse burden as a proportionate response to difficulties facing the prosecution. This was not a case where the matter to be established was solely within the knowledge of the defendant. The victim’s evidence would be likely to be highly relevant in determining whether the landlord’s alleged belief was reasonable. The problems of proof did not therefore warrant the imposition of the reverse burden.
111.
Miss Goodall also referred to the decision of this Court in
R v Phekoo
[1981] 1 WLR 1117. In that case the defendant was charged with doing acts calculated to interfere with the peace and comfort of residential occupiers so as to cause them to give up their occupation contrary to
section 1(3)(a)
of the
Protection from Eviction Act 1977
. The defendant contended that he did not know that the person harassed was a residential occupier, and that accordingly he could not be liable unless the prosecution proved that he did. The Court upheld this contention and accepted that once the issue was raised, it was necessary for the Crown to prove that the defendant did not honestly believe that the victim was a residential occupier.
112.
We reject these submissions for the following reasons. First, in our view the essence of the offence is unlawfully depriving the occupier of his occupation of the premises. The defence is available only if the defendant can bring himself within a narrow class of exceptions. As we have said, it will be a very rare case where the reverse burden is not justifiable in such circumstances.
113.
Second, the circumstances relied upon by the defendant are peculiarly within his own knowledge. Only he knows what his belief was, and this in our view reinforces the justification for framing the defence in this way. It would be burdensome and often impracticable for the prosecution to have to prove negatively that he did not have that belief, or reasonable cause for that belief.
114.
Third, the imposition of a criminal penalty is designed to regulate conduct, here the conduct of landlords, in the public interest, a factor which both Lord Steyn and Lord Clyde recognised in
Lambert
may justify a reverse burden (see paras 35 and 154 of the judgment respectively). There is clearly a strong public interest in deterring landlords from ejecting tenants unlawfully and to the extent that the provision infringes Article 6, there is in our view a manifest justification for it so doing.
115.
As to the
Phekoo
case, that was concerned with a different statutory provision, and moreover the Court in reaching its conclusion expressly had regard to the fact that
section 1(2)
was differently formulated from
section 1(3)
(see p93h).
116.
We have no doubt that in imposing a reverse burden, this subsection strikes a proper balance between the general interest of the community and the protection of the fundamental rights of the individual. Any infringement of Article 6(2) is both very limited and wholly justified. Accordingly, the appeals in this case fail.
117.
It is not necessary to say anything as to the appropriateness of holding a preparatory hearing in this case.
R v Hendley
118.
Ian Hendley is charged with murdering Jennifer Parish on 25 March 2002. They were not married, but lived together. On the night of 24/25 March 2002, they were together in the bedroom of a hotel in the West Midlands. At about 8.45am hotel reception was telephoned by the defendant, who said that his wife was dead. When ambulance staff arrived, Mrs Parish was found lying on a bed. She was obviously dead. The appellant told them that they had injected themselves with insulin: "it’s a suicide pact".
119.
The Crown alleges that the defendant injected Mrs Parish with a huge overdose of insulin, but had used only a minor dose on himself. The defence will be that he survived the implementation of a suicide pact.
120.
Section 4(1) of the Homicide Act 1957
("HA 1957") provides:
"It shall be manslaughter, and shall not be murder, for a person acting in pursuance of a suicide pact between him and another to kill the other or be a party to the other … being killed by a third person."
121.
Section 4(2)
of the HA 1957 provides:
"Where it is shown that a person charged with the murder of another killed the other it shall be for the defence to prove that the person charged was acting in pursuance of a suicide pact between him and the other."
122.
At a preparatory hearing under
section 29
of the HA 1957, Douglas Brown J considered whether the reverse burden of proof created a legal or persuasive burden or an evidential burden and concluded that if the defendant wished to raise the suicide pact defence, "the persuasive burden … is upon him to prove it on the balance of probabilities."
123.
The judge then gave leave to appeal to this court.
Jurisdiction
124.
At the hearing before the judge, counsel for both the prosecution and the defendant, at the outset, submitted that it was an appropriate case for a preparatory hearing under
section 29 of the CPIA 1996
. In his ruling, Douglas Brown J stated that he agreed with the submissions and thereafter conducted a preparatory hearing. He did not state the basis on which it appeared to him to be a proper case for a preparatory hearing but it can be assumed that it was on the basis of complexity. In the circumstances, in our view, the matter having been considered by counsel and the judge, the hearing can properly be described as a preparatory hearing and both the judge and this court have jurisdiction to deal with it as a preparatory hearing held pursuant to
section 29
.
Reverse Burden of Proof in Hendley
125.
In ruling that the reverse burden of proof in
section 4(2)
of the HA 1957 created a legal burden, Douglas Brown J adopted the formulation of the four central questions put to him by Mr Nigel Sweeney QC, counsel for the defendant. He ruled that
section 4(2)
made inroads on and derogated from Article 6(2), but that the prosecution could easily satisfy the burden of justifying its use. In respect of proportionality he asked himself the three questions referred to in the speech of Lord Hope in
ex parte Kebilene
(the Pannick questions) and resolved each in favour of the prosecution. In paragraph 44 of his ruling the judge set out the five factors which persuaded him to reach his conclusion. They were:
"1. The Crown must prove beyond reasonable doubt that a defendant killed the other or was a party to the killing before the need for any defence arises.
2. The defendant has to establish the suicide pact and the other elements only on a balance of probabilities.
3. The facts necessary to establish these matters will almost always lie within the defendant’s sole knowledge.
4. Society has a legitimate interest in requiring that the grave offence of murder is only reduced to manslaughter after evidence has been adduced which can be tested in court.
5. The reverse or persuasive burden is necessary to provide some protection for society, particularly its vulnerable members, from murder disguised as a suicide pact killing."
126.
In this court Mr Sweeney QC submits that the judge, having asked himself the correct questions, reached the wrong conclusions. He submits that where a defendant charged with the grave offence of murder raises a
section 4
defence it is contrary to Article 6(2) to place upon him the obligation of a legal burden of proof in respect of that defence. His submission is that the court should rule that the burden is only an evidential one.
127.
Mr Sweeney QC reminded this court of the historical background leading up to the enactment of the HA 1957 and the
Suicide Act 1961
. He points to the fact that before the HA 1957 a survivor of a suicide pact would be guilty of murder. This applied even if the deceased died by his own hand rather than the hand of the survivor (see
R v Croft
[1944] KB 295
).
128.
Against this background in support of his principal submission Mr Sweeney QC makes a number of subsidiary submissions which in summary are as follows:
i.
Society and the courts now take a more humane and sympathetic approach to suicide and the survivors of a suicide pact.
ii.
By requiring a defendant to prove a
section 4
defence, society risks the possibility of a survivor of a suicide pact being convicted of murder on less than the criminal standard of proof.
iii.
The argument that the prosecution is faced with the obstacle of proving a negative in a situation where only one person survives does not, in modern times, bear scrutiny. Advances in science have provided the prosecution with many tools which enhance its ability to negative such a defence.
iv.
The circumstances in which the prosecution is faced with the task of negativing defences where the defendant is the sole witness to a killing, commonly occur in murder cases. Defences of self-defence, provocation, lack of intent and automatism have not in the past proved insuperable hurdles to the prosecution obtaining convictions for murder where only one person survives as a witness to the killing.
v.
The
section 2
defence (diminished responsibility) is of a different character and can be distinguished from the
section 4
defence. The fact that the former has been found to be compliant with Article 6(2) affords no support for the proposition that the
section 4
defence involves the legal burden of proof.
129.
Mr Sweeney QC relied on dicta in
Lambert, Johnstone and Sheldrake
to support his argument that
section 4(2)
should be read down so as to reduce the defendant’s obligation to that of an evidential burden.
Conclusion as to Hendley
130.
Powerful as Mr Sweeney QC’s arguments are, we are unable to accept them. It is quite clear that the
section 4
defence is one which only arises once the prosecution has proved by evidence or admissions all the elements which constitute the offence of murder. In such circumstances, as we have indicated earlier in this judgment, the burden on the prosecution to justify the reverse burden of proof and show that it is proportional is more readily discharged. We recognise that the mandatory penalty for murder is the harshest that the court can impose, but there can be no doubt that Parliament in the HA 1957 singled out the defences of diminished responsibility and suicide pact as ones which required proof by a defendant. In our judgment, the history leading up to the passing of the HA 1957 shows that, in respect of a survivor of a suicide pact, Parliament was only prepared to reduce the offence of murder to manslaughter if the survivor proved the existence of such a pact. In doing so, no doubt it had in mind the fact that in many cases the only evidence of such a pact would emanate from the survivor. As Douglas Brown J pointed out in his ruling, not only will the facts necessary to establish the defence lie within the defendant’s knowledge but also the reverse legal burden provides protection for society from murder disguised as a suicide pact killing.
131.
Further, in our judgement, any differences between the defence of diminished responsibility and the
section 4
defence are not so significant as to lead us to distinguish between the two. The former has been declared by this Court to be compliant with Article 6(2) (see
R v Lambert, Ali and Jordan
[2001] Cr App Rep 14) and by the European Commission of Human Rights (
Robinson v UK Application Number 20858/92
unreported, 5 May 1993).
132.
In the circumstances, in our judgement, the ruling of the judge was correct and the appeal must be dismissed.
R v Crowley
133.
On 23 April 2003 in the Crown Court at Snaresbrook before Mr Recorder Popat, this appellant pleaded guilty on re-arraignment to racially aggravated harassment, and on 14 May she was sentenced to twelve months imprisonment. Arising from these proceedings, she was charged with an offence of battery (count 2) and also with witness intimidation contrary to
section 51(1) of the Criminal Justice and Public Order Act 1994
("CJPOA 1994") (count 1). Before trial she pleaded guilty to battery, and on 4 July, in the Crown Court at Snaresbrook before HHJ Bing and a jury, she was convicted of witness intimidation. She was sentenced to a total term of 9 months imprisonment, to run consecutively to the order made by Mr Recorder Popat. She now appeals against conviction with leave of the single judge.
134.
Section 51(1)
of the CJPOA 1994 provides:
"A person commits an offence if
(a) he does an act which intimidates, or is intended to intimidate another person;
(b) he does the act knowing or believing that the victim is assisting in the investigation of an offence or is a witness or potential witness or a juror or a potential juror in proceedings for an offence; and
(c) he does it intending thereby to cause the investigation or the course of justice to be obstructed, perverted or interfered with."
135.
Section 51(7)
of the CJPOA 1994 further provides:
"If, in proceedings against a person under subsection (1) above it is proved that he did an act falling within paragraph (a) with the knowledge or belief required by paragraph (b), he shall be presumed unless the contrary is proved, to have done the act with the intention required by paragraph (c) of that subsection."
136.
The essential facts giving rise to this prosecution began as a dispute between neighbours which culminated in a complaint by the appellant’s neighbour of harassment. Criminal proceedings were started, and are due to be heard in April 2004.
137.
On 17 March, while the appellant was awaiting trial, she assaulted her neighbour, the complainant and chief prosecution witness, in the street.
138.
During the course of their encounter, the appellant took hold of the neighbour by the wrists, calling her a "fucking bitch" and asking, "what have you done to me?". The neighbour alleged that she was then pushed against a parked car, an allegation denied by the appellant. An off-duty police officer was able to intervene and separate the two women. The neighbour said that during the incident she felt sick and was frightened for her life. The appellant’s account of the incident was that she had approached her in order to apologise for what had happened earlier and to try and resolve the original dispute. When she asked, "what have you done to me?", she was referring to the fact that she and her children had been forced to move out of their home, which had caused her to be upset. On the occasion of the incident she had been drinking, but had not intended to intimidate her neighbour.
139.
The judge concluded that
section 51(7)
of the CJPOA 1994 imposed a legal burden on the defence, and rejected an application that the proceedings should be stayed as an abuse of process following the appellant’s plea of guilty to count 2, an allegation which was said to arise from precisely the same circumstances as the witness intimidation alleged in count 1.
140.
The judge’s direction to the jury on the "reverse burden of proof", after accurately analysing the factual ingredients of the matters which required proof by the prosecution, continued, that if sure of those matters,
"You must consider whether the defendant has proved to you that she did not have the intention of obstructing or perverting the investigation. The law is that it is a matter for her to prove on all the elements and all the evidence, but whenever the law requires a defendant to prove something, she does not have to make you sure of it, she only has to show that it is more probable than not that she only had the intention – in this instance – of harassing Mrs Tang and not of intimidating her as a witness. … if you decide that probably she did only have the motive of harassment rather than of obstructing justice, then find her not guilty. It is only if she has failed to prove, on the balance of probabilities, that she had no intention of obstructing justice, that you can find her guilty, providing, of course, the other elements of the offence are made out."
141.
This direction logically followed the judge’s interpretation of
section 51(7)
of the CJPOA 1994 and the circumstances in which the burden of proof was imposed on the defendant, and plainly if that interpretation was wrong, his direction was similarly flawed.
142.
Leave to appeal was given by the single judge.
Conclusions as to Crowley
143.
The defendant appeals against conviction on two grounds. Those grounds are first that the judge’s direction to the jury on the reverse burden of proof was wrong in law; and secondly that he was wrong to reject a submission that to permit the prosecution to proceed on count 1, the defendant having pleaded guilty to count 2, was an abuse of process. We need say little about the second ground. The answer to it is contained in the skeleton argument of Miss Azza Brown, counsel for the prosecution. Although the facts relied on by the prosecution in respect of count 2 are the same as those relied on in respect of count 1, the essential ingredients of the two offences are different. There was, therefore, no bar to the prosecution proceeding on count 1 (see
Connelly v DPP
[1964] AC 1254
at page 1324). Mr Michael Newport, counsel for the defendant, wisely, in our view, did not press this ground.
144.
As to ground 1, before the summing-up, the judge heard submissions from both counsel and gave a ruling. It is implicit in his ruling that
section 51(7)
of the CJPOA 1994 engaged Article 6(2) and amounted to a derogation from it. Having referred to
L v DPP
and
ex parte Kebilene
he went on to conduct a balancing exercise coming down in favour of the prosecution. He said (ruling transcript page 3G):
"Pausing there, the whole issue of the fairness of trial depends upon witnesses willingly and freely coming forward and giving their evidence without fear and, therefore, the general overriding and overarching policy objective of a state preventing witness intimidation appears to me to strike the balance in favour of the state on the balancing test set out by Lord Hope."
145.
Mr Newport submits that
section 51(7)
should be read down so as to impose on the defendant an evidential burden rather than a legal one. He contends that the presumption in
section 51(7)
goes to the heart of the offence. He points to the fact that the prosecution only has to prove the matters set out in
section 51(1)(a)
and (b) for the final element of the offence in
section 51(1)(c)
to be presumed, unless the contrary is proved. In the circumstances this is an offence which renders the defendant liable to be convicted on something less than the criminal standard of proof. He submits that such a construction is neither fair to a defendant nor justified; and it does not satisfy the test of proportionality.
146.
In our judgement the judge’s ruling and his direction to the jury were correct. We accept Mr Newport’s submission that the reverse burden of proof in
section 51(7)
is one which involves an ingredient of the offence and not one which provides a special defence. However, in our view imposing a legal burden of proof in respect of this offence is both justified and proportional.
147.
Witness and jury intimidation represents a very serious threat to the proper administration of criminal justice. It is the experience of all the members of the court that such intimidation has in the recent past substantially increased and continues to do so. In our opinion, it is quite understandable that Parliament by legislation should wish to take strong measures to stamp out such conduct. In our view, once it is proved that a person does an act which intimidates or is intended to intimidate another person; and he does so knowing or believing that the victim is a potential witness or juror, it is entirely reasonable that the burden of proving that he had no intention to pervert or interfere with the course of justice, should rest with him. In carrying out the balancing exercise between the potential detriment to a defendant caused by the imposition of the legal burden imposed by
section 51(7)
and the mischief which Parliament is seeking to eradicate, like the judge, we are of the opinion that the balance comes down firmly in favour of the prosecution. We have no hesitation in concluding that for this offence the legal burden of proof imposed on a defendant is both justified and proportional. We reach this conclusion despite Mr Newport’s valiant efforts to persuade us otherwise.
148.
For these reasons the appeal of the defendant against conviction must be dismissed. | {"ConvCourtName": ["Woolwich Crown Court", "Winchester Crown Court", "Crown Court at Snaresbrook"], "ConvictPleaDate": ["25 July 2002", "21 October 2002", "23 April 2003"], "ConvictOffence": ["battery", "unlawful eviction", "murdering", "fraudulent transfer of property", "witness intimidation"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["on re-arraignment"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Woolwich Crown Court", "Winchester Crown Court", "Crown Court at Snaresbrook"], "Sentence": ["9 months imprisonment", "twelve months imprisonment"], "SentServe": ["consecutively"], "WhatAncillary": ["data not available"], "OffSex": ["Her"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["property at South Hill which became the home of the defendant"], "OffMentalOffence": ["depression"], "OffIntoxOffence": ["drinking"], "OffVicRelation": ["appellants let a property", "not married, but lived together."], "VictimType": ["Natalie Sands"], "VicNum": ["Natalie Sands", "murdering Jennifer Parish"], "VicSex": ["Ms"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["property at 8 Greyfriars House, Colerain Road, Blackheath, London SE3"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["completed form B40.01"], "DefEvidTypeTrial": ["denied by the appellant", "admits that she was bad at managing her financial affairs, but asserts that she was not dishonest."], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Attorney General"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["on a hearing treated by him as a preparatory hearing"], "AppealGround": ["he was wrong to reject a submission that to permit the prosecution to proceed on count 1, the defendant having pleaded guilty to count 2, was an abuse of process", "the correctness of the judge’s ruling should be considered by the Court of Appeal Criminal Division", "the judge’s direction to the jury on the reverse burden of proof was wrong in law", "in all the cases, the defendants were alleged to have committed offences under legislation that purports to impose upon the defendant the burden of proving certain issues"], "SentGuideWhich": ["section 51(1) of the Criminal Justice and Public Order Act 1994", "Bankruptcy Act 1914", "section 5(1)(b) of the Road Traffic Act 1988. Section 5(2)", "Criminal Justice Act 1987", "section 1(2) of the Protection from Eviction Act 1977", "Section 3(1) of the Human Rights Act 1998", "The Companies Act 1948", "section 352 of the Insolvency Act 1986", "section 11 of the Terrorism Act 2000", "section 2(2) of the Prosecution of Offences Act 1985", "Article 6(2) of the European Convention on Human Rights", "The Debtors Act 1869", "Criminal Procedure and Investigations Act 1996"], "AppealOutcome": ["dismissed", "We allow the appeal in \n Edwards", "Accordingly, the appeals in this case fail."], "ReasonQuashConv": ["His direction under that section was unduly favourable to the defendant."], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["the ruling of the judge was correct and the appeal must be dismissed.", "In our judgement the judge’s ruling and his direction to the jury were correct."]} | {"ConvCourtName": ["Crown Court At Snaresbrook", "Woolwich Crown Court", "Winchester Crown Court"], "ConvictPleaDate": ["2003-04-23", "2002-10-21"], "ConvictOffence": ["witness intimidation", "battery", "murdering", "unlawful eviction", "fraudulent transfer of property"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["on re-arraignment"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Snaresbrook", "Woolwich Crown Court", "Winchester Crown Court"], "Sentence": ["Crowley"], "SentServe": ["Consecutively"], "WhatAncillary": ["data not available"], "OffSex": ["All Female"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Had mental health problems"], "OffIntoxOffence": ["Yes-drinking"], "OffVicRelation": ["Acquaintance", "Stranger"], "VictimType": ["Individual person"], "VicNum": ["1", "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"], "DefEvidTypeTrial": ["Offender denies offence", "Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Attorney General"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Conviction"], "AppealGround": ["he was wrong to reject a submission that to permit the prosecution to proceed on count 1, the defendant having pleaded guilty to count 2, was an abuse of process", "the judge’s direction to the jury on the reverse burden of proof was wrong in law", "the correctness of the judge’s ruling should be considered by the Court of Appeal Criminal Division", "in all the cases, the defendants were alleged to have committed offences under legislation that purports to impose upon the defendant the burden of proving certain issues"], "SentGuideWhich": ["section 51(1) of the Criminal Justice and Public Order Act 1994", "section 1(2) of the Protection from Eviction Act 1977", "The Companies Act 1948", "Bankruptcy Act 1914", "The Debtors Act 1869", "section 2(2) of the Prosecution of Offences Act 1985", "section 352 of the Insolvency Act 1986", "section 11 of the Terrorism Act 2000", "section 5(1)(b) of the Road Traffic Act 1988. Section 5(2)", "Criminal Justice Act 1987", "Criminal Procedure and Investigations Act 1996", "Section 3(1) of the Human Rights Act 1998", "Article 6(2) of the European Convention on Human Rights"], "AppealOutcome": ["Dismissed-Failed-Refused", "Dismissed-Failed-Refused", "We allow the appeal in \n Edwards"], "ReasonQuashConv": ["His direction under that section was unduly favourable to the defendant."], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["In our judgement the judge’s ruling and his direction to the jury were correct.", "the ruling of the judge was correct and the appeal must be dismissed."]} | 283 |
Neutral Citation Number:
[2021] EWCA Crim 439
Case Nos: 202000110 B5
202000115 B5
202000030 B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK
HHJ Patricia Lees
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 26/03/2021
Before :
LORD JUSTICE SINGH
MRS JUSTICE WHIPPLE DBE
and
HER HONOUR JUDGE DEBORAH TAYLOR, THE RECORDER OF
WESTMINSTER
- - - - - - - - - - - - - - - - - - - - -
Between :
(1)
HENRY DUNN
(2)
CHRISTIAN JAMES KING
Appellants
- and -
REGINA
Respondent
(Transcript of the Handed Down Judgment.
Copies of this transcript are available from:
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7414 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr John FitzGerald
(instructed by
Reeves & Co Solicitors
) for the
1
st
Appellant
Mr James Scobie QC
(instructed by
Metro Law Solicitors Ltd
) for the
2
nd
Applicant
Ms Claire Harden-Frost and Mr Thom Dyke
(instructed by
the Crown Prosecution
Service
) for the
Respondent
Hearing date: 4 March 2021
Judgment As Approved by the Court
Crown copyright ©
Lord Justice Singh :
Introduction
1.
There are three matters before the Court. The first is an appeal against conviction by Henry Dunn, brought with the leave of the single judge, although the application for an extension of time (of 77 days) has been referred to the Full Court. The second is a renewed application for leave to appeal against sentence by Dunn, together with an application for an extension of time (of 4 days): these applications will of course only arise if the appeal against conviction is dismissed. The third is a renewed application for leave to appeal against sentence by Christian King.
2.
At the hearing before us we heard submissions from Mr John FitzGerald on behalf of Dunn; Mr James Scobie QC on behalf of King; and Ms Claire Harden-Frost on behalf of the Respondent. We are grateful to them all for their written and oral submissions.
3.
On 25 March 2019, in the Crown Court at Snaresbrook, Dunn (then aged 39) was convicted of participating in the criminal activities of an organised crime group. This was the subject of Count 2 on the indictment at what we will call the first trial.
4.
On 23 September 2019 he was convicted, after a retrial, of conspiracy to facilitate the commission of a breach of the United Kingdom’s immigration laws: this was the subject of Count 1 at the first trial, on which the jury were then unable to agree and was the only relevant count at the second trial.
5.
On 5 December 2019 Dunn was sentenced by HHJ Lees to nine years’ imprisonment on Count 1. No separate penalty was imposed on Count 2.
6.
At the first trial, on 25 March 2019, King (then aged 38) was convicted of conspiracy to facilitate the commission of a breach of the UK’s immigration laws: Count 1
.
On Count 2, which was treated as an alternative count, the jury were discharged from giving a verdict.
7.
On 5 December 2019 King too was sentenced by the Judge to nine years’ imprisonment on Count 1.
8.
Counts 3 and 4 were ordered to lie on the file against both Dunn and King in the usual terms.
9.
Another co-defendant, Christopher Griffin,
was acquitted on both counts at the first trial.
10.
Earlier, on 1 March 2019, James Davis had
pleaded guilty
.
He was sentenced on 5 December 2019 to four years and six months imprisonment.
11.
For completeness we should mention that another man, Thomas Saddington, had been dealt with for related offences in France.
Factual background
12.
Between 31 October 2017 and 7 November 2017 there was a conspiracy, involving the above five named individuals and others unknown, to bring four Vietnamese nationals to the UK who had no lawful entitlement to be here.
13.
On 6 November 2017, a rigid hull inflatable boat (“RHIB”), without navigational and safety equipment, was piloted by Davis, who had no formal qualifications, across the English Channel from Dymchurch beach, Kent to France. It was an agreed fact at the trial that there was fuel which would have enabled a voyage of at least 230 nautical miles.
During the launch King’s vehicle got stuck in the sand. Dunn travelled to Kent and gave King a lift to Dymchurch before returning to Essex
.
14.
The four young Vietnamese men, wearing unsuitable clothing and without lifejackets, were bought back, in the RHIB, to the Kent coast, arriving very early on the morning of 7 November 2017. The young men were collected by Griffin but the vehicle was intercepted by the police on the M20
.
15.
The prosecution case was that the accused were guilty of both counts on the indictment. It was alleged that telephone
and surveillance evidence demonstrated that King engaged in significant planning and reconnaissance. This included determining the best site to land and that he had made a practice run on 4 November 2017. King was responsible for providing the RHIB, recruited Davis and provided the technical boating expertise. Dunn recruited Griffin, to collect the young men from the beach on landing.
16.
The accused were interviewed under caution. King exercised his right to silence in the first interview and in the second he gave a prepared statement: that he had sold the RHIB to Davis and had assisted with its launch on 6 November for a fishing trip. Davis had provided him with a phone. Dunn exercised his right to silence in both interviews.
17.
The defence case
for Dunn was that he was unaware of a plan. Initially he denied going to Dymchurch but in evidence he said
that his brother, Matthew, had agreed to go to the coast as a favour to Dunn’s driver (it was an agreed fact that Dunn was disqualified from driving),
who had broken down on route to pick up a friend. He had introduced his driver to Griffin.
The first trial
18.
At the first trial there were, so far as material, two counts on the indictment against King, Griffin and Dunn. Count 1 alleged conspiracy to facilitate the commission of a breach of the UK’s immigration’s laws, contrary to
section 1(1)
of the
Criminal Law Act 1977
. Count 2 alleged participation in the criminal activities of an organised crime group, contrary to
section 45(1)
and (9) of the
Serious Crime Act 2015
(the “2015 Act”).
19.
Section 45(1)
of
the 2015 Act
makes it an offence for a person to participate in the criminal activities of an organised crime group.
20.
Subsection (3) provides that “criminal activities” are activities within subsections (4) or (5) that are carried on with a view to obtaining (directly or indirectly) any gain or benefit. Subsection (6) defines “organised crime group”.
21.
Subsection (2) provides that, for this purpose, a person participates in the criminal activities of an organised crime group if the person takes part in any activities that the person knows or reasonably suspects (a) are criminal activities of an organised crime group, or (b) will help an organised crime group to carry on criminal activities.
22.
Under subsection (9) the maximum penalty for this offence is a term of imprisonment of five years. In contrast, the maximum penalty for an offence of conspiracy to commit an offence under the immigration laws is 14 years.
23.
In the first trial (and the retrial) the issues for the jury on Count 1 were whether: (1) there was an agreement to bring the four illegal immigrants into the UK (admitted by the accused), (2) the defendant joined the agreement, (3) the defendant knew what he was agreeing to and (4) when he joined the agreement, the defendant intended that he or some other party to it should carry the agreement out. If the jury returned a not guilty verdict they would be asked to consider Count 2.
24.
On Count 2, the issues for the jury
were: (1) whether the defendant took part in any activities, (2) which he knew or reasonably suspected were either (a) the criminal activities of an organised crime group (other than the criminal activities of less than three people) or (b) would help an organised crime group to carry on criminal activities
.
25.
At the first trial counsel for King submitted
that the jury should only be invited to return a verdict on Count 1 alone. He submitted that the prosecution case against King was that he was at the heart of the activity and, if that was proven, this amounted to a conspiracy. There was therefore no need for Count 2
.
The essence of the criminality was covered by Count 1 and there was no rational basis on which a jury could convict on Count 1 and not Count 2.
It was submitted that the purpose of
section 45
of
the 2015 Act
was to criminalise activity that could not easily be prosecuted under existing law and, in particular, the offence of conspiracy. It was argued that the offence is not designed to be a replica of the liability that is covered by the offence of conspiracy, but rather, it was introduced to cover activity that is alternative to, and distinct from, such liability
.
26.
Counsel for the prosecution responded
that it was possible for the jury to return different verdicts on each count and the inclusion of Count 2 was potentially important for the purposes of sentencing
.
It was accepted that there was “considerable overlap” between the criminality alleged by Counts 1 and 2 but it was submitted that it was appropriate that both counts should be left to the jury
.
27.
The Judge decided
that both counts should remain on the indictment. There was an important distinction: there was a lesser
mens rea
on Count 2. There was also the element of whether there was an organised crime group, which the jury would have to decide on Count 2. Nevertheless, the judge said that: “The reality is in my judgement … that the factual scenario of bringing in the immigrants is the same for each, and Count 2 should be an alternative in those circumstances to Count 1”
.
28.
The Judge directed the jury in those terms in her summing up at the first trial: see in particular page 7E. She told the jury:
“… You will be asked for a verdict on count two in respect of any defendant you found not guilty of count one.”
29.
After the jury had been in retirement they passed a note to the Judge which made it clear that they were having difficulty in reaching agreement on Count 1 in respect of Dunn. After discussing the matter with counsel, the Judge discharged the jury from reaching a verdict on Count 1 and invited them to retire to consider Count 2: see page 94B-C. The jury then returned to court five minutes later and a verdict was taken: it was a unanimous verdict of guilty.
The second trial
30.
At the retrial of Dunn there was now only one relevant count, which had been Count 1 at the first trial. The Judge was invited to stay the prosecution on the ground that it was an abuse of process. She refused that application. Her reasons for doing so were set out in a written ruling dated 16 October 2019, which recorded the arguments advanced on behalf of Dunn as follows:
“(i) Counts 1 and 2 were so similar that they should not both have been on the same Indictment either as separate or alternative Counts.
(ii)
The jury should not have been invited to consider Count 2 in the circumstances which arose, namely their inability to reach a verdict of at least 10 in respect of Count 1 and/or
(iii)
The prosecution should not be permitted to retry Mr Dunn on Count 1 because he has been convicted of Count 2, on the basis relied on in (i) above – namely, it is founded on the same facts and because to permit a retrial of the more serious charge would offend not just the public perception of justice but should offend the court’s sense of justice and propriety amounting to an abuse of the process by reason of convicting him twice of a single crime.”
31.
In dismissing each of those arguments, she stated:
“In respect of (i):- in my judgment there is an important difference between Counts 1 and 2; the mental element and so the degree of criminal responsibility. The facts upon which each Count is based are largely the same but there is an important difference between the mental element required for each. That must also be why there is a significant difference as between the two offences as regards sentencing maxima. In any event, as the Crown rightly point out, this matter has already been ruled upon by this Court following an application made on behalf of Christian King. This Court has ruled that the Indictment containing two Counts is valid for the reasons provided at that time but that the Counts would be left to the jury as alternatives, with Count 2 only to be considered after finality had been reached in respect of Count 1.
It is accepted by Mr FitzGerald that these are not statutory alternatives and must therefore fall into the category of ‘forensic alternatives’ as referred to in
R v Nelson
[2016] EWCA Crim 1517
.
In respect of (ii):- It was my stated view that the approach to be adopted was the approach ultimately taken. Counsel were given the opportunity to research that view overnight and submissions were invited. The prosecution research revealed that approach was a course approved in
R v McEvilly
[2008] EWCA Crim 1162
, especially at paragraphs Q100-105. As Miss HardenFrost and Mr Dyke set out, in Mr Dunn’s case, finality was reached on Count 1 by discharging the jury from reaching a verdict as there was no realistic prospect of their agreeing. Having discharged the jury on Count 1, the Court was entitled to allow the jury to go on to consider Count 2. No submission to the contrary was received.
In respect of (iii):- it is as much in the interests of justice to ensure that the guilty are convicted as the innocent walk free. It is in my judgment also in the interests of justice for a court to know on what basis a person guilty of criminal activity should be sentenced. In this case complaint is made that Mr Dunn would, if convicted of Count 1, have two convictions. That is true, as it is for Mr Davis in respect of whom the prosecution required guilty pleas to both Counts. As I said when that was aired during legal submissions at the first trial, it is open to me when sentencing to reflect that fact and ensure fairness by for example passing concurrent sentences.”
Submissions for the Appellant
32.
On behalf of Dunn it is submitted by Mr FitzGerald that the Judge should have allowed the application to stay Count 1 as an abuse of process, since the Appellant had been convicted of the “lesser alternative” and there was a “single wrong”
.
33.
Mr FitzGerald submits that, at the first trial, the prosecution case was that all the accused were guilty of both counts; Count 2 was not a lesser alternative
.
After submissions that Count 2 should be removed from the indictment because the only material difference was the mental element and this was minimal, the Judge ruled that Count 2 would be left to the jury as a lesser alternative in the event that they found the accused not guilty of Count 1
.
Mr FitzGerald submits that there are two possibilities:
(a)
If Counts 1 and 2 are significantly different, then it is an abuse of process to prosecute the more serious offence, the jury having convicted the Appellant of the less serious offence. Whilst they are not statutory alternatives, they are genuine alternatives.
(b)
If Counts 1 and 2 are so similar that any difference is
de minimis
, the two counts ought not to have been on the indictment together.
Submissions for the Respondent
34.
On behalf of the Respondent Ms Harden-Frost observes that, in the first trial, it was accepted that there was an overlap between the two counts but submits that the Crown has a wide discretion when drafting an indictment; no application had been made that the indictment was bad for duplicity, nor was there an application to stay on the grounds of abuse of process; and it had been conceded by the defence that the
actus
reus
and
mens rea
were different. Count 2 was an important aggravating factor for the purposes of sentencing and there was no prejudice to any of the defendants
.
She also observes that the jury in the second trial were not told about the earlier conviction on Count 2.
35.
She further submits that:
(a)
At the first trial the counts were left to the jury as forensic alternatives only, not as legal alternatives
.
(b)
Counts 1 and 2 “cover similar ground but are different offences with significantly different mental elements to them”; the difference in the statutory maximum penalties illustrates the distinction.
The appeal against conviction
36.
There can be no question in the present case of there being any plea in bar (such as
autrefois convict
) which would have prevented the second trial against Dunn. The two offences with which he was charged are clearly not the same as a matter of law. The fact that he had been convicted on Count 2 did not mean that he could not be tried later on Count 1.
37.
Secondly, the principle in
R v Elrington
(1861) 1 B & S 688 did not apply in this case either. That principle was explained by Hughes LJ in
R v Bayode
[2013] EWCA Crim 356
, at paras. 22-23:
“22.
R v Elrington
(1861) 1 B & S 688 has given its name to a principle which was only partly in issue in the case but which was articulated by Cockburn CJ. The defendant was indicted on three alternative counts of (1) assault causing grievous bodily harm, (2) assault causing actual bodily harm and (3) common assault. But he had previously been tried before the justices for the same assault and acquitted. There was a statutory bar on the subsequent prosecution provided by section 28 of the Offences against the Person Act 1828 (Lord Lansdowne’s Act) but additionally the Chief Justice invoked a wider common law rule:
‘…we must bear in mind the well-established principle of our criminal law that a series of charges shall not be preferred, and, whether a party accused of a minor offence is acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form.’
As Lord Morris pointed out in
Connelly
(at 1315), this is clearly a reference to charges preferred after a previous one has been disposed of rather than to a series of charges in the same indictment, which latter course is perfectly proper. In the same case,
Connelly
, Lord Hodson aptly described the
Elrington
principle as a rule against ‘an ascending scale’ of charges. A good modern illustration is afforded by
R v Beedie
(supra). There a landlord failed to maintain a tenant’s gas fire, resulting in the death of a tenant. He was prosecuted and convicted of offences under the
Health and Safety at Work Act 1974
, the death being proved as an aggravating feature of the offence. Later he was indicted for gross negligence manslaughter in respect of the same omission to maintain. This court held that the indictment ought to have been stayed on the
Elrington
principle. The Crown must ordinarily decide once and for all what charges are appropriate to alleged criminal misconduct and must prefer them. It is not normally open to it to proceed first for a minor offence and then later to charge a more serious one arising from the same facts.
23. In
Connelly
this principle was endorsed by Lords Morris, Hodson, Devlin and Pearce and there is no doubt that it represents good law. Lords Morris and Hodson regarded it as a modest extension of the pleas in bar of autrefois convict and acquit, but at that time (1963) the law relating to the limited power of a criminal court to stay a prosecution for abuse of process was in an early stage of development; this was long before the analysis in
R v Horseferry Road Magistrates Court ex p Bennett
[1994] 1 AC 42
and Attorney-General’s Reference (No 1 of 1990)
[1992] QB 278
– and see now
Warren v Attorney General for Jersey
[2011] UKPC 10
;
[2012] 1 AC 22
. Lord Devlin’s speech in Connelly itself contains an early and powerful enunciation of the existence of the power to control vexatious (or abusive) prosecutions, and he treated the
Elrington
principle as an aspect of it. As he observed, this is the better way to analyse the principle, because unlike the pleas in bar it does not provide an absolute bar to proceeding, but rather depends on the justice of the case. That is demonstrated by the long-standing exception to the principle where there has been a trial for an offence of violence, but the victim subsequently dies; in such a case a subsequent prosecution for murder has always been regarded as proper. For the same reasons, this court in
Beedie
treated the
Elrington
principle as an aspect of the (limited) abuse jurisdiction, and we agree that this is the best way to regard it in the modern context.”
38.
As in the case of
Bayode,
so here, the
Elrington
principle does not assist the Appellant because this was not a case of the Crown first preferring a minor charge and then later a major charge. The major charge had been preferred from the outset.
39.
Having cleared those principles out of the way, we can turn to the main basis on which Mr FitzGerald contends that it was an abuse of process for the Appellant to be tried on Count 1 when he had already been convicted on Count 2: this is that they were alternative charges. This was the basis for this Court’s decision in
Bayode
itself.
40.
In that case the defendant was tried for murder but the jury could not agree on that charge. An alternative count of manslaughter was then added to the indictment. The jury were discharged from having to give a verdict on the murder charge and returned a verdict of guilty on the charge of manslaughter. Initially the trial judge was of the view that there was nothing to prevent the prosecution from then bringing a charge of murder but later, having had the opportunity to consider the matter in more detail, the judge ruled that it would be an abuse of process to do so. The Crown then appealed against that termination ruling but that appeal was dismissed by this Court. As Hughes LJ explained, at para. 33:
“… whether there is one count or two, there cannot be convictions for both of two offences which are properly mutually exclusive alternatives. If there were two counts, and no plea of guilty, the jury would try the defendant on both, but would not be permitted to return verdicts of guilty on more than one. In our view, the course now proposed by the Crown in this case would offend against this fundamental concept of alternative charges.”
41.
It is clear from that passage that, when Hughes LJ spoke of alternative charges, he was referring to “properly mutually exclusive alternatives.” The reason why the offence of manslaughter is properly to be regarded as a true alternative to murder is that, as a matter of law, the elements of the two offences (dealing here only with unlawful act manslaughter and leaving aside gross negligence manslaughter) are identical save for the different mental element which is required. The
actus reus
in a case of unlawful act manslaughter is identical to the
actus reus
for murder.
42.
The concept of true alternatives of that type was distinguished by this Court from “forensic alternatives” in
R v Akhtar
[2015] EWCA Crim 176
;
[2015] 1 WLR 3046
. In that case the defendant was charged with having an article, namely a petrol bomb, with intent to destroy or damage property, contrary to
section 3
of the
Criminal Damage Act 1971
. He was also charged with possession of an offensive weapon, namely a petrol bomb, contrary to
section 1(1)
of the
Prevention of Crime Act 1953
. The jury convicted him on the second count but could not agree on the first count. The defendant was convicted at his retrial on the first count. He appealed on grounds which included that the second trial should not have been permitted because he had already been convicted at the first trial of one of two counts which were alternatives. This Court rejected that argument in a judgment given by Sir Brian Leveson P. The Court distinguished the case of
Bayode
in the following terms at paras. 34-35:
“34. But were these offences (possessing an article with intent to cause damage and possession of an offensive weapon) truly alternatives? As a matter of strict law, Mr Bennathan conceded that they were not, but argued that the effect of the way in which the case had been opened and left to the jury (with the prosecution asserting in opening and the judge directing that they were alternatives) meant that they had to be treated as such. At best, they were ‘forensic’ alternatives: if the jury convicted on count 1, the prosecution did not require consideration to be given to count 2. As Mr Heywood submitted, they were certainly not ‘mutually exclusive alternatives’ because they were not precisely the same in factual or legal description or in the mischief to which they were directed.
35. Possession of an offensive weapon can be and is a complete offence prior to any formation of the intention to cause damage and the two offences can be considered as separate in time: the offensive weapon offence was complete when the petrol and wicks were put into the bottles whereas the intention to cause damage need only have been formed later. Similarly, the two counts are totally different from classic mutually exclusive alternatives (such as theft and handling stolen goods) and different from murder and manslaughter (which was the subject of
R v Saunders
[1988] AC148 and
R v Bayode
[2013] EWCA Crim 356
) because both depend on the same act, namely the killing, without any potential for a subsequent intent. Finally, they were not related to each other as a lesser included offence (whether at common law or by operation of
section 6(2)
or 6(3) of the
Criminal Law Act 1967
).”
43.
The Court concluded on this issue, at para. 42, that:
“In our judgment, a different approach is entirely justifiable between those cases which are true alternatives (such as
R v Bayode
[2013] EWCA Crim 356
) and those cases, described as forensic alternatives, which are not even though they are presented by the prosecution (and by the judge reflecting that approach) to the jury as such. In the circumstances, we conclude that although Judge Carr could have discouraged the prosecution from pursuing a retrial on count 1 (requiring further consideration of the public interest in the light of any comment he might have chosen to make), there was no impediment in law to the course which he took. In those circumstances, the appeal against conviction in relation to count 1 is also dismissed.”
44.
In the present case, it is clear that the two counts were not true alternatives. As a matter of law they have distinct elements. First, the mental element (or
mens rea
) is different. In the case of an offence under
section 45
of
the 2015 Act
, what is required is only a “reasonable suspicion”. Mr FitzGerald sought to persuade us that the distinction between this and a belief was so slight as to be
de minimis
. We do not accept that submission. It is well established in law that there is a crucial distinction between a belief and a mere suspicion. For example, in a civil case concerning an action for wrongful arrest by the police,
Buckley v Chief Constable of Thames Valley
[2009] EWCA Civ 365
, Hughes LJ said, at para. 6:
“Suspicion is a state of mind well short of belief and even further short of a belief in guilt or that guilt can be proved.”
In that context Hughes LJ referred to the requirement in
section 24(6)
of the
Police and Criminal Evidence Act 1984
that a police officer should have reasonable grounds for suspecting that a person has committed an arrestable offence in order to have the power to arrest that person. The distinction between suspicion and belief is also to be found in other statutory contexts.
45.
Secondly, the other elements of the two offences charged in this case are different as a matter of law. Under Count 1 there had to be a conspiracy, in other words an agreement, and the jury had to be sure that the particular defendant whose case they were considering was a party to that conspiracy. In a conspiracy the offence consists of the agreement itself and nothing more need have been done to implement the agreement. In contrast, the charge in Count 2 did not require proof that the Appellant was a party to any agreement. It required only that he took some part in the activities of an organised criminal group.
46.
Furthermore, it is clear that the jury at the first trial were sure that the Defendant had done something to make him guilty of Count 2 but could not agree on Count 1. Before this Court Mr FitzGerald suggested that the only explanation for that must be that the jury were acting perversely by being unable to agree on Count 1. We do not accept that submission. The Appellant faces a high hurdle in making that submission. It could only be accepted if there was no reasonable basis on which the jury’s verdict could be explained. As Ms Harden-Frost explained to this Court, having been trial counsel for the prosecution, it is not necessary to conclude that there was no reasonable basis for the jury’s inability to agree on Count 1. At the trial it was common ground that whoever controlled two “dirty phones” was a party to the conspiracy. Dunn’s defence was that he did not have possession of those phones. Given the evidence before the jury at the first trial, it is possible that the jury were not agreed that Dunn had possession of the two “dirty phones”, whilst being satisfied, on
the basis of other evidence, that he had participated in the activities of an organised crime group for the purposes of Count 2. This would explain the verdict at the first trial.
47.
Finally in this context, the Judge was not only entitled, but was correct, to say that the difference between the two counts was a significant one because Parliament has decided that the maximum sentence for each offence shall be different. The maximum sentence on Count 2 is five years’ custody, whereas the maximum sentence on Count 1 is 14 years.
48.
For those reasons, we have reached the conclusion that this was not a case of true alternatives but rather was a case of forensic alternatives. As in
Akhtar
, the legal position is that the prosecution were not prevented from pursuing Count 1 at a retrial on the ground that it was an abuse of process. As the Judge recognised, any potential injustice caused by the two convictions could be avoided by sentencing accordingly. We note that, in the event, she imposed no separate penalty on Count 2.
49.
For the reasons we have given the appeal against conviction by Dunn is dismissed.
Sentence
50.
Dunn was born on 8 August 1981 and was aged 37 at the date of his conviction. He had 15 convictions for 46 offences, spanning the period from 2002 to 2019. King was born on 8 January 1981 and was aged 38 at the date of his conviction. He had 16 convictions for 30 offences, spanning the period from 1997 to 2014.
51.
In passing sentence the Judge said that this was a carefully planned, sophisticated conspiracy involving reconnaissance work and a practice run. It was not simply a trip across the Channel and back. The telephone evidence made clear that Dunn and King had devised the plan and organised its execution and were in contact with the other conspirators. The culpability was greater for King, who recruited Davis as the RHIB driver, and Dunn, who recruited Griffin to transport the young men once they were in the UK
.
52.
They had ruthlessly placed the lives of the four young men in jeopardy; the RHIB was in poor condition, without any safety equipment either for navigation or in the event of an emergency, and Davis was unqualified. The passengers had no lifejackets and wore unsuitable clothing. Davis wore a lifejacket that would have given him 23 hours survival time
.
They showed no regard for these strangers and they were motivated by financial gain. The uncontested evidence of DI McSheffrey was of a recognised prevalence of this type of offence on the Kent coast and it was significantly higher than in other areas of the country, such that it could be described as exceptional
.
The offences therefore warranted deterrent sentences
.
53.
In mitigation, the Judge recognised that the duration of the conspiracy was short and did not involve the trafficking of these four young men. Each defendant had personal mitigation and had no similar previous convictions.
54.
Finally, the Judge was satisfied, having heard evidence through the trial, that Serious Crime Prevention Orders were necessary to protect the public.
The decision of the Single Judge in the case of Dunn
55.
When refusing leave to appeal against sentence Freedman J’s reasons included the following:
“…
The relevant law and principles are set out at paragraphs 9-15 of the [Respondent’s] Note. The applicable aggravating features are set out at paragraph 14 of the Note to which the Judge had regard. She set out the matter particularly clearly in her sentencing remarks at pages 2H – 4F. She had regard to the mitigation at pages 4G-5D.
Contrary to the submissions in the Advice and Grounds of Appeal, the Judge was entitled to regard you at the top of the conspiracy, involved with Mr King in the devising of the plan and organising its execution. That evaluation followed among other things from the detailed analysis of the information on your phones and the whereabouts of the use of your phones connected with your home, your movements and your frequent and significant contact with Mr King and Mr Davis. It also followed from your recruitment of Mr Griffin as the driver. The Judge had the benefit of being able to assess the matter, having heard your two trials in which the precise details of your telephone conversations were the subject of painstaking analysis. The Judge had the benefit of hearing you give evidence twice. The Judge took into account the short duration of the conspiracy.
The Judge also referred to the need for deterrent sentences and took into account the evidence provided by Detective Inspector McSheffrey about the recognised prevalence of similar offending in the Kent area: see sentencing remarks at page 4EF. DI McSheffrey referred to the level of harm there being significantly higher than elsewhere due to the short Channel crossing, and the increase in illegal crossings being exceptional. This amounted to exceptional local circumstances which might influence sentencing levels: see
R v Bondzie
[2016] 1 WLR 3004
at paragraph 11.
The grounds of failing to give adequate weight to the mitigation are not well made out. The Judge considered your family circumstances, but balanced this against the knowledge that commission of serious crime puts family life at risk. The Judge took into account the absence of similar previous convictions. The seriousness of the offence was such despite this, it is not arguable that the sentence of 9 years was manifestly excessive or wrong in principle, nor does an appeal merit the
consideration of the full Court.”
Renewed application for leave to appeal against sentence by Dunn
56.
The maximum sentence for an offence under
section 25
of the
Immigration Act 1971
was 7 years custody until 13 February 2000, when it was increased to 10 years. It was increased again from 9 February 2003 to the current maximum of 14 years. The fact that Parliament has thought fit to double the maximum sentence must be borne in mind when considering earlier decisions of this Court, in particular
R v Le and Sark
[1999] 1 Cr App R (S) 422
, which was decided at a time when the maximum sentence was 7 years. Nevertheless, it is common ground that the guiding principles which were set out in that case by Lord Bingham of Cornhill CJ, at page 425, remain relevant. It is also common ground that no guidelines for offences of this type have been issued by the Sentencing Council. Finally, we should mention that Mr
FitzGerald placed particular reliance on
R v Oliveira
[2012] EWCA Crim 2279
;
[2013] 2 Cr App R (S) 4
, which was considered by this Court in
Attorney General’s References (Nos 49 and 50
of 2015) (Bakht)
[2015] EWCA Crim 1402
;
[2016] 1 Cr App R (S) 4
.
57.
By reference to the various factors which have been mentioned in the authorities as potentially aggravating offences of this kind, Mr FitzGerald emphasised the following points. First, this was an isolated offence, which was not refuted. Secondly, its duration was relatively short, lasting 6 days. Thirdly, there was no exploitation or pressure placed on others. Fourthly, Dunn does not have previous convictions for similar offences. While Mr FitzGerald accepts that this was a commercial enterprise, not a humanitarian one, and accepts that the immigrants concerned were strangers to the Applicant rather than family members, he submits that it was not a large scale or particularly sophisticated enterprise. For example, no passports were issued to the four Vietnamese migrants concerned. Finally, Mr FitzGerald emphasises the personal mitigation which is available to the Applicant, in particular that his daughter has ADHD; and that his son has autism and has found it particularly difficult to be separated from his father.
58.
Although it is possible to envisage offences of this kind which would be more serious than the present one, we bear in mind that the sentence passed by the Judge after trial was nine years’ imprisonment, which is well below the statutory maximum of 14 years. We are not persuaded that the sentence was either wrong in principle or manifestly excessive or even arguably so. We agree with the Single Judge that leave to appeal should be refused for the reasons which he gave.
The decision of the Single Judge in the case of King
59.
When refusing King leave to appeal against sentence Freedman J gave reasons which included the following:
“…
The relevant law and principles are set out at paragraphs 9-15 of the Note. The applicable aggravating features are set out at paragraph 14 of the Note to which the Judge had regard. This included the clear danger to lives of the Vietnamese youths and the disregard for their safety, the fact that their entry had been facilitated by strangers as opposed to members of their family, the significant amount of planning and the potential for significant financial gain in the enterprise. She set out the matter in her sentencing remarks at pages 2H – 4F. She had regard to the mitigation at pages 4G-5D.
The matters set out at paragraph 1 of the Draft Grounds of Appeal against Sentence do not provide a different perspective. The Judge was entitled to regard you (and Mr Dunn) at the top of the conspiracy and particularly in view of your supply of the boat and recruitment of Mr Davis. That was not the limit of your involvement. At the trial, there was detailed consideration of the telephone evidence particularly between you and Mr Dunn, showing your frequent and significant contact with Mr Dunn and Mr Davis. This took place with the use of what were described in the prosecution note on sentence as “‘dirty’ phones to maintain a sterile corridor between co-conspirators”. The Judge had the benefit of being able to assess the matter following your trial and to reach the conclusion which she did. The Judge took into account the short duration of the conspiracy.
The Judge also referred to the need for deterrent sentences and took into account the evidence provided by Detective Inspector McSheffrey about the recognised prevalence of similar offending in this part of Kent: see sentencing remarks at page 4E-F. DI McSheffrey referred to the level of harm there being significantly higher than elsewhere due to the short Channel crossing, and the increase in illegal crossings being exceptional.
The ground of failing to give adequate weight to the mitigation is not well made out. The Judge considered your family circumstances but balanced this against the knowledge that commission of serious crime puts family life at risk. The Judge took into account the absence of similar previous convictions and certificates demonstrating achievements in custody and your working to reduce violence by others in custody. The seriousness of the offence was such that despite these points of mitigation, it is not arguable that the sentence of 9 years was manifestly excessive or wrong in principle nor does it merit the consideration of the full Court.”
Renewed application for leave to appeal against sentence by King
60.
On behalf of King, Mr Scobie made similar submissions to those of Mr FitzGerald, which he adopted. We have taken into account everything that can be said on behalf of King, including information which has been provided to this Court since the refusal of leave by the Single Judge, as to how well he has done in prison. Nevertheless, we are not persuaded that the sentence of nine years imposed on him was either wrong in principle or manifestly excessive or even arguably so.
61.
Mr Scobie also complains about the terms of the Serious Crime Prevention Order (“SCPO”).
62.
An SCPO may be imposed under
section 19
of the
Serious Crime Act 2007
where the court has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales. It may contain such terms as the court considers appropriate for that purpose.
63.
Mr Scobie complains about the impact of the SCPO on King after his release from prison because the reference to “any water going vessel” is too wide. He submits that it should be restricted to “sea water going vessel” in view of the circumstances of this case. He submits that the work which King does on internal waters is 24 hours a day; and can be last minute, so that advance registration of vessels may well not be practicable.
64.
We are not persuaded by that submission. As Ms Harden-Frost has submitted, the index offence involved King providing a boat for use in a criminal conspiracy. The circumstances of this case illustrate how a boat that is wholly unsuitable for a Channel crossing may nevertheless come to be used to smuggle illegal immigrants into this country. There is plainly a risk that the Applicant might be tempted to offer the use of a boat that is designed for internal waters for such an operation in the future. In any event, the Judge was entitled to conclude that it was appropriate to include any water going vessel to be registered with the police in order to protect the public from his involvement in serious crime. It is not arguable that the scope of the Order was disproportionate.
65.
For those reasons, as well as those given by the Single Judge, we refuse the application for leave to appeal against sentence.
Applications for extension of time
66.
Given the conclusions we have reached, no practical purpose would be served by granting the extensions of time which are required. We therefore also refuse those applications. | {"ConvCourtName": ["Crown Court at Snaresbrook"], "ConvictPleaDate": ["25 March 2019"], "ConvictOffence": ["participating in the criminal activities of an organised crime group", "conspiracy to facilitate the commission of a breach of the United Kingdom’s immigration laws"], "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": ["King too was sentenced by the Judge to nine years’ imprisonment", "nine years’ imprisonment on Count 1. No separate penalty was imposed on Count 2"], "SentServe": ["data not available"], "WhatAncillary": ["Serious Crime Prevention Orders"], "OffSex": ["he"], "OffAgeOffence": ["39"], "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": ["telephoneand surveillance evidence"], "DefEvidTypeTrial": ["he was unaware of a plan. Initially he denied going to Dymchurch but in evidence he saidthat his brother, Matthew, had agreed to go to"], "PreSentReport": ["data not available"], "AggFactSent": ["sophisticated", "15 convictions for 46 offence", "financial gain", "significant planning"], "MitFactSent": ["duration of the conspiracy was short", "family circumstances"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellants"], "CoDefAccNum": ["five named individuals"], "AppealAgainst": ["application for an extension of time", "appeal against conviction"], "AppealGround": ["the Judge should have allowed the application to stay Count 1 as an abuse of process"], "SentGuideWhich": ["section 24(6) of the Police and Criminal Evidence Act 1984", "section 1(1) of the Criminal Law Act 1977", "section 45(1) and (9) of the Serious Crime Act 2015"], "AppealOutcome": ["appeal against conviction by Dunn is dismissed", "refuse the application for leave to appeal against sentence", "leave to appeal should be refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["We are not persuaded that the sentence was either wrong in principle or manifestly excessive or even arguably so"]} | {"ConvCourtName": ["Crown Court At Snaresbrook"], "ConvictPleaDate": ["2019-03-25"], "ConvictOffence": ["conspiracy to facilitate the commission of a breach of the United Kingdom’s immigration laws", "participating in the criminal activities of an organised crime group"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Snaresbrook"], "Sentence": ["King too was sentenced by the Judge to nine years’ imprisonment", "nine years’ imprisonment on Count 1. No separate penalty was imposed on Count 2"], "SentServe": ["data not available"], "WhatAncillary": ["Serious Crime Prevention Orders"], "OffSex": ["All Male"], "OffAgeOffence": ["39"], "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 evidence"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["financial gain", "sophisticated", "15 convictions for 46 offence", "significant planning"], "MitFactSent": ["family circumstances", "duration of the conspiracy was short"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["3"], "AppealAgainst": ["Other", "appeal against conviction"], "AppealGround": ["the Judge should have allowed the application to stay Count 1 as an abuse of process"], "SentGuideWhich": ["section 24(6) of the Police and Criminal Evidence Act 1984", "section 45(1) and (9) of the Serious Crime Act 2015", "section 1(1) of the Criminal Law Act 1977"], "AppealOutcome": ["Dismissed-Failed-Refused", "Dismissed-Failed-Refused", "Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["We are not persuaded that the sentence was either wrong in principle or manifestly excessive or even arguably so"]} | 85 |
No.
2007/02336/A8
Neutral Citation Number:
[2007] EWCA Crim 2322
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Wednesday 5 September 2007
B e f o r e:
LORD JUSTICE HUGHES
MR JUSTICE MITTING
and
MRS JUSTICE COX DBE
- - - - - - - - - - - - - - -
R E G I N A
- v -
DARREN MARTIN FLINTON
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Miss Ruth Cranidge
appeared on behalf of the Appellant
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J U D G M E N T
Wednesday 5 September 2007
LORD JUSTICE HUGHES:
I will ask Mr Justice Mitting to give the judgment of the court.
MR JUSTICE MITTING:
1. This appellant is aged 22. On 12 March 2007, in the Crown Court at York, he pleaded guilty to one offence of assault occasioning actual bodily harm and one offence of common assault. On 13 April 2007, he was sentenced to nine months' imprisonment suspended for two years with a 200 hour unpaid work requirement. There is no appeal against that element of the sentence. He was ordered to pay £1500 compensation to the victim of the assault occasioning actual bodily harm, Ian Grant, and £500 compensation to the victim of the common assault, Anita Cooper, at the rate of £50 a week. He appeals against the first only of those orders. There is no question of his ability to pay. The only question is whether the judge was right to assess compensation in that sum.
2. The appellant pleaded guilty on a defined basis. There was no
Newton
hearing. He was therefore entitled to be sentenced on the basis of his plea. The compensation order formed part of the sentence and it, too, should therefore have been based on the basis of his plea.
3. The circumstances were as follows. On 15 October 2006, the appellant was the victim of an unprovoked punch to his lower back by Ian Grant while standing in the bar of a public house in Malton. This prompted the appellant to punch Grant and to throw him to the floor twice. On the second occasion he kicked him. He also pushed Miss Cooper, who fell over Grant on to the floor.
4. The court is empowered to order compensation of "such amount as [it] considers appropriate" (
section 130(4) of the Powers of Criminal Courts (Sentencing) Act 2000)
. Plainly it should not exceed the sum which would be awarded by a court in civil proceedings.
5. Miss Cranidge submits that the award of £1500 compensation to Ian Grant did so. He lost consciousness and vomited twice. He had a headache, sore elbows, a sore and bruised back, and pain in his jaw and face which restricted movement. Both elbows were grazed and there was tenderness and limited movement in his left shoulder. He was prescribed analgesics. He said that he was off work for nine days pursuant to his doctor's certificate, but he produced no evidence of wage loss. It does not appear to us that the judge made any assessment in the award of compensation in respect of wage loss. If he did do so, he would not have been right to do so because it required evidence of loss to justify the making of an award on that account. The photographs of the injuries which we have seen demonstrate that Grant was injured in at least three places on his face, suggestive of kicks to his face. The assertion that he suffered at least momentary concussion and vomiting is accordingly plausible.
6. Although he had clearly been on the receiving end of quite a severe kicking, it seems to us that an award of £1500 was greater than any award which would have been made in civil proceedings. The largest award which we can conceive being made on a full liability basis -- and indeed the proper award for the injuries which we have described -- is in our view £1,000.
7. Miss Cranidge makes a further point: because Grant started the incident, his compensation should be reduced. She does not cite, and we are unaware of, any authority of this court in which the point has been considered. The answer of the civil courts to such a proposition is uncertain. In
Lane v Holloway
[1968] 1 QB 379, the Court of Appeal was emphatic and unanimous in holding that compensatory damages for assault could not be reduced on account of provocation by the victim. But in
Murphy v Culhane
[1977] QB 94, damages were reduced on that account. The editors of the well-known textbooks, McGregor and Clerk & Lindsell, take opposite views about the appropriateness of a reduction.
8. The Criminal Injuries Compensations Scheme provides in paragraph 13:
"A claims officer may withhold or reduce an award where he considers that:
....
(d)
the conduct of the applicant before, during or after the incident giving rise to the application makes it inappropriate that a full award or any award at all should be made; ...."
Limited guidance can be derived from the words of that scheme because it is the taxpayer and not the assailant who is being required to provide compensation to the victim.
9. The guidance given to magistrates when making compensation orders contains the following:
"The amount of compensation should be determined in the light of medical evidence, the victim's sex and age, and any other factors which appear to the court to be relevant in the particular case."
That guidance seems to us to be well-founded. The words of the enabling statute "such amount as it considers appropriate" is plainly wide enough to encompass that guidance. It is also in our view plainly wide enough to encompass the reduction of an award on account of the unlawful conduct of the victim of an assault, at least where that conduct contributes to the occurrence of the assault.
10. The judge did not consider this question. We accordingly may do so afresh. In our view, on the basis upon which the appellant was sentenced, Grant's conduct should have led to a reduction in the amount of compensation ordered to be paid in respect of his injuries. But for his unprovoked assault, the incident would not have occurred. However, it did not begin to justify the kicking which he received. A balance must be struck between the two factors. In our view justice would be achieved if the sum of £1,000, which would otherwise have been appropriate, is reduced by one-quarter to £750.
11. There remains one final matter. When passing sentence, the judge stated that he would not accede to the prosecution application for costs in the sum of £380 because he was making compensation orders in sums totalling £2,000. Now that we have reduced the award in respect of Grant, Miss Cranidge concedes that there is no reason why this court should not do that which the judge decided not to do, namely to order the appellant to pay the costs of the proceedings, £380.
12. We accordingly allow this appeal by reducing the compensation payable to Grant to £750, but order the appellant to pay the prosecution costs below in the sum of £380. The total impact of the sentence upon him is not more severe and we are not prohibited from adjusting the order in that way. | {"ConvCourtName": ["Crown Court at York"], "ConvictPleaDate": ["12 March 2007"], "ConvictOffence": ["assault occasioning actual bodily harm", "common assault"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at York"], "Sentence": ["nine months' imprisonment suspended for two years with a 200 hour unpaid work"], "SentServe": ["with"], "WhatAncillary": ["unpaid work requirement.", "£500 compensation to the victim", "ordered to pay £1500 compensation"], "OffSex": ["he"], "OffAgeOffence": ["aged 22"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["the victim"], "VicNum": ["victim of the common assault", "victim of the assault"], "VicSex": ["him", "Miss"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["to punch Grant and to throw"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant", "appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against the first only of those orders"], "AppealGround": ["whether the judge was right to assess compensation"], "SentGuideWhich": ["(section 130(4) of the Powers of Criminal Courts (Sentencing) Act 2000)."], "AppealOutcome": ["allow this appeal by reducing the compensation"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["balance must be struck between the two factors."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Crown Court At York"], "ConvictPleaDate": ["2007-03-12"], "ConvictOffence": ["common assault", "assault occasioning actual bodily harm"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At York"], "Sentence": ["nine months' imprisonment suspended for two years with a 200 hour unpaid work"], "SentServe": ["Concurrent"], "WhatAncillary": ["£500 compensation to the victim", "ordered to pay £1500 compensation", "unpaid work requirement."], "OffSex": ["All Male"], "OffAgeOffence": ["22"], "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", "1 of 2"], "VicSex": ["Mixed"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Witness /victim testimony"], "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": ["whether the judge was right to assess compensation"], "SentGuideWhich": ["(section 130(4) of the Powers of Criminal Courts (Sentencing) Act 2000)."], "AppealOutcome": ["allow this appeal by reducing the compensation"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["balance must be struck between the two factors."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 242 |
Case No:
201104701 B2
Neutral Citation Number:
[2012] EWCA Crim 1185
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE THORNTON QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
01/06/2012
Before :
LORD JUSTICE STANLEY BURNTON
MRS JUSTICE THIRLWALL
and
THE RECORDER OF PRESTON
(sitting as a Judge of the Court of Appeal Criminal Division)
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Between :
JAMES JOE SAUNDERS
Appellant
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THE QUEEN
Respondent
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Orland Pownall QC
(instructed by
Edward Hayes & Co
) for the
Appellant
A A Jafferjee QC
and
Duncan Atkinson
(instructed by
the CPS
) for the
Crown
Hearing date : 11 May 2012
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Judgment
Lord Justice Stanley Burnton:
Introduction
1.
On 14 July 2011 in the Central Criminal Court before the Recorder of London His Honour Judge Beaumont QC, James Saunders was convicted of the murder of Moses Devall. He was sentenced to imprisonment for life, and the period of 20 years was specified as the minimum term under
section 269(2)
Criminal Justice Act 2003
.
He was also sentenced to 24 months imprisonment concurrent for an offence of inflicting grievous bodily harm, having been convicted of that offence on 1 February 2011. He appeals against his conviction for murder with leave of the single judge.
2.
The sole ground of appeal relates to the hearsay evidence that was the only evidence that it was the appellant who murdered Moses Devall.
The undisputed facts
3.
On 30 October 2009, Moses Devall was involved in a fight with the appellant’s brother,
4.
That night, Sarah Schock, the partner of Moses Devall, was at the Priory Tavern in Orpington with her daughter, Sarah Girl, and her friends, Wendy Roberts and Laura Phillips. Sarah Schock was in a fight with the appellant’s sister, Laura Coates. She was attacked by the appellant, his brother John Saunders, his sister Charmaine Coates and her husband Levi Coates. All of them, other than the appellant, had pleaded guilty to a section 20 assault on Sarah Schock at an earlier trial. The appellant was subsequently also convicted of participation in that assault.
5.
As a result of the injuries she suffered, Sarah Schock was taken to hospital. She wanted to contact her husband Moses Devall. Wendy Roberts got through to a neighbour, Jane Buckley, and asked her to take her, Jane Buckley’s, phone to Moses, who was at their home at 26 Swallowtail Close. Jane did so. Wendy gave her phone to Sarah and she spoke to Moses. She told him that she was injured and was at the hospital. The call was timed at 00.24.
6.
While Sarah Schock was on the telephone to Moses, he was stabbed. A telephone call to emergency services was timed at 00.29. It overlapped with the call between Moses and Sarah. Moses died from his wound.
7.
The prosecution case was that it was the appellant who stabbed Moses.
The hearsay
8.
As mentioned above, the only significant evidence that it was the appellant who stabbed Moses was hearsay. The evidence may conveniently be divided into two: first, what Moses was alleged to have said to Sarah on the telephone immediately after the stabbing; and secondly, the statements that it was alleged that Jane Buckley made to Wendy Roberts and Betsy Devall, Moses’ mother.
(a) The evidence of Moses’ dying statement
9.
Sarah Schock said that while she was on the phone to Moses from the hospital he made an “aah” sound. She asked if he was OK. He said “No, I’ve just been stabbed.” She asked who by and he said “Jimmy Saunders”. Her daughter, Sarah Girl, said that she had been with her mother when the telephone call took place, and that she had heard Moses say that he had been stabbed by the appellant.
(b) The evidence of what Jane Buckley saw
10.
Wendy Roberts’ evidence was that on Thursday 5 November she and Jane Buckley met at Wendy’s house. Jane gave details of what she had seen the previous Saturday. She was outside Moses’ gates holding her little boy. The appellant appeared from nowhere and struck Moses who was inside the gates and on the phone. She thought he had been punched but then saw him stagger back and fall into the door. The appellant said, “What did you beat my brother for?” The appellant was with a girl who told him to run. Henry (Devall) came out of Moses’ kitchen and said he had been stabbed. Dave Hook was also in his house at the time. Wendy said she had heard Jane shouting out the postcode. Jane was very upset whilst giving this account and told Wendy that she was not going to tell the police. Wendy tried to persuade her many times but she would not do so. According to Wendy, Jane, a single mother of two children, was scared of the Saunders family, who, like her and the Devall family, were members of the local Traveller community.
11.
Betsy Devall’s evidence was that having seen Sarah at the hospital she went to get Moses to take him to the hospital because she thought from his earlier phone call to her that he had been drinking and would not drive. She got to 26 Swallowtail Close and parked her van. There were a few people, including Jane, about. Two paramedics were tending to Moses in the hallway. Betsy collapsed and sat on the kerb. Jane Buckley came over and cuddled her. She said, “Aunty Betsy, I saw all what happened. Jimmy Saunders did it. He came from the side of the wall to the front gate and did it like that.” She demonstrated a stabbing action, but said she thought at first it was only a punch. Jane said that the appellant had said “That’s for kicking my brother up and down.” A girl in a pink top was with him and she told him to run. Jane was in a state of shock and a bit traumatised. After 5 or 10 minutes someone came and gave Betsy a cup of tea and a cigarette. Then she went home. Betsy Devall spoke later to Jane Buckley about why she wouldn't tell the police what she had seen. Miss Buckley's response was that she would love to do right by Moses but she had two little boys and she was on her own with no husband, making it clear that she would not speak to the police because she was in fear.
The judge’s hearsay ruling
12.
At the beginning of the trial, before any evidence had been called, the prosecution applied to adduce both Moses’ accusation and the Jane Buckley hearsay. The application in respect of Moses’ accusation of the appellant was based on the common law principle described in
Ratten v The Queen
[1972] AC 378
, 391:
“hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.”
That principle has been preserved and codified by
section 118
of the
Criminal Justice Act 2003
:
“(1)
The following rules of law are preserved.
Res gestae
Any rule of law under which in criminal proceedings a statement is admissible as evidence of any matter stated if—
(a) the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded,
…”
13.
The appellant was represented at the trial by Mr Grunwald QC and Ms R Darby. Mr Grunwald accepted that Moses’ statement, if he made it, was admissible evidence, but that there were such doubts as to whether or not he had made it that the judge should exclude the evidence under the power conferred by
section 78
of the
Police and Criminal Evidence Act 1984
. It was submitted that there were strong doubts as to whether Moses had accused the appellant. Sarah Schock had not mentioned it to the staff of the hospital where, at the time of receiving the phone call, Sarah was awaiting examination for the injuries that she had sustained. Nor did she tell the police who saw her at that hospital.
14.
The prosecution sought to adduce the Jane Buckley evidence under
section 114(2)
(d) of the
Criminal Justice Act 2003
. The judge knew that Jane Buckley denied having seen the stabbing or having said what was attributed to her, since she had given evidence to that effect at an earlier trial. The judge went through the mandatory considerations listed under
section 114(2)
of
the 2003 Act
. For present purposes, it is sufficient to set out the following extract from his ruling:
“I am satisfied that both the accounts that I have summarised, assuming them to be true, have a considerable probative value in relation to a matter in issue in the proceedings; namely proof that it was the defendant who killed Moses Devall, and that it has value for the understanding of other evidence in the case, namely the dying declaration by Moses Devall.
Thus subsections (a) and (c) are met.
I am also satisfied that even if no other eye witness account exists ‘other evidence’ can be given about how the statements came to be made, with both sides relying on the chronology that was rehearsed before me in terms of the contact by the witnesses concerned with the police, and the content of their logs. Thus subsection (b) is met.
As to (e) and (f), the so-called reliability subparagraphs, Mr Jafferjee has satisfied me in the light of other free-standing evidence, some of which is derived from telephone evidence, some from the statement of Danielle White, as well as from Jane Buckley's acceptance in the evidence that she has given thus far as to the events, that is to say, the surrounding circumstances of the meetings in which Betsy Devall and Wendy Roberts describe seeing and speaking to Jane Buckley; that the makers and the making of the hearsay statements are reliable.”
15.
The judge then turned to paragraphs (g), (h) and (i). Mr Grunwald submitted that it would be wrong for the Crown to call the hearsay evidence of Betsy Devall and Wendy Roberts but not Jane Buckley, and that to permit the prosecution to do so would be to fly in the face of all the safeguards in
the 2003 Act
. The judge accepted this submission. He decided that he would permit the Jane Buckley evidence to be adduced by the prosecution if she was called, but not otherwise. He considered that, if she was called, “the safeguards put in place by to paragraphs (g), (h) and (i) are met”. He said:
“Oral evidence of the matter stated in the hearsay statements could be given, in the sense of Jane Buckley explaining why she could not see what Betsy Devall and Wendy Roberts both say she said she did see, as well as being able to say that she did not tell them that she did; the prosecution not merely calling Miss Devall and Miss Roberts, but relying on evidence from Danielle White to set the scene outside the deceased's house, and thus providing the jury with all the evidence they would need to be sure of the truth of the hearsay statements.
As part of that process, the defence have the ability to challenge it and furthermore to do so in a manner which presents no difficulty likely to prejudice the defendant's case, or even to prejudice the presentation of it.”
The evidence
16.
For the purposes of this appeal, it is unnecessary to summarise all of the very considerable evidence called at the trial.
17.
Sarah Schock and her daughter Sarah Girl gave evidence substantially as anticipated by the judge, confirming that on the telephone Moses had accused the appellant of stabbing him.
18.
Wendy Roberts and Betsy Devall testified that Jane Buckley had said to them that she saw the stabbing but would not give evidence to that effect because she was in fear of the appellant and his family.
19.
Jane Buckley was called by the judge, and cross-examined on behalf of the appellant and the prosecution. She said that she had lived at 9 Swallowtail Close for over 11 years and had known Moses. Wendy Roberts was her best friend. Jane was at home on the evening of 30 October and the view from her house enabled her to see Moses’ house and the adjoining grass slope. At 23 49 she called Wendy. The call lasted 5 minutes. Jane denied that she called to tell Wendy that she had seen a fight outside number 26 and wanted to tell Sarah what had happened to Moses. Although she was in her front room she did not hear any noise or words from that direction. Wendy told her that Sarah had been badly beaten up and mentioned an ambulance. Jane texted Danielle White at number 6 Swallowtail Close. (She did not mention it to the police 3 days later when she was interviewed.) Danielle rang and asked if she had a spare nappy. She said she did and Danielle came to collect it just as she was leaving to take her phone to Moses. She left Levi, her 2 year old son, who was asleep on the sofa, and took the phone to Moses’ house. She called Moses, gave him the phone and left him speaking to Sarah. She heard Levi crying so she went into her house and changed his nappy and gave him a bottle. Then she went back to get her phone carrying the child. Moses must have been stabbed when she was dealing with Levi. She saw Moses lying in his hallway. Dave Hook called the ambulance and she called out the postcode. Her phone was by the front door as if it had just been dropped. She called Danielle and asked her to take Levi home.
20.
The police and ambulance came. Betsy Devall arrived but was not allowed into the house. Jane and Betsy sat on the pavement together. Jane was not crying and did not tell Betsy that she had seen what happened to Moses. She was comforting Betsy. She told her she thought Moses had been stabbed. The police told them he was dead. If she had told Betsy who had killed Moses, Betsy would have told the police then. A number of people were there talking about what had happened and Betsy did not say that Jane knew what had happened because she saw it. After about 20 minutes Jane went home.
21.
Jane Buckley said that she next saw Betsy when she went to the caravan site to pay her respects. No one told her she had to tell the police what she saw. If she had seen who stabbed Moses she would have told the police. Later Betsy came to see her and asked if she had seen what had happened to Moses. She said she had not. Betsy did not say she had heard that Jane did not want to tell the police and she did not say she would love to tell them but she had no husband and 2 boys.
22.
Jane saw Wendy and Danielle at McDonalds. She was upset about what had happened and Wendy comforted her. She never told Wendy that she had seen what happened to Moses and Wendy did not try to persuade her to tell the police that she had.
23.
Jane had not set out to help the appellant or his family. They put no pressure on her and she was not frightened of anyone but it had turned into a nightmare for her. All she did was do a favour for a friend by taking a phone to another friend. She did not see Moses being stabbed and never told anyone that she did.
24.
Danielle White gave evidence that she was a neighbour of Sarah and Moses, Jane and Wendy. On the night of 30 October 2001 her friend Amanda was at her house with her child. Danielle received a text from Jane Buckley asking if Wendy had told her what happened to Sarah. Danielle rang Jane who told her about the fight at the Priory Tavern. Danielle asked if she had a spare nappy for Amanda’s 2-year-old. Jane said she had, so Danielle went round to collect it. Jane was trying to call Wendy. Then Wendy got through and asked Jane to take the phone to Moses so that Wendy could tell him how Sarah was. Jane gave Danielle the nappy and they left the house: Danielle went home and Jane went over to number 26. Initially, Danielle said in evidence that she could not remember whether Jane took Levi with her. However, she was referred her to her witness statement made on 1 December, in which she had said that Jane did take her son Levi with her. Danielle said that if she had said it then, she must have meant it, but she could no longer be sure about it. Jane called Danielle and told her that Moses had been stabbed and asked her to come to Moses’ house to collect Levi from her. Danielle went straightaway. The police and ambulance service were there. Danielle took Levi to her home.
25.
A few days later Danielle and Wendy met Jane at McDonalds. Jane got upset and started crying. Danielle went to the counter to place their order and could not hear what Wendy and Jane were saying but Wendy was comforting Jane. Wendy told Danielle that Jane was present when Moses was stabbed. Danielle did not know where Wendy got the information from; there were a lot of rumours. Jane did not tell Danielle how Moses was stabbed and Danielle never asked Jane about it, but she knew that Jane did not want to make a statement and maintained that she did not see anything. Jane never said she was in fear.
26.
No submission was made on behalf of the appellant at the conclusion of the prosecution case (and the evidence of Jane Buckley). The appellant did not give evidence.
The submissions before the Court of Appeal
27.
Mr Pownall accepted that reliable evidence that Moses had accused the appellant of his stabbing immediately after it occurred would have been admissible in evidence. However, he submitted that the evidence that Moses had accused the appellant was so doubtful that it should not have been admitted. In essence, he submitted that it was inconceivable that, if Sarah Schock and her daughter had learned during the telephone call that the appellant had stabbed Moses, they would not have mentioned it to anyone at the hospital, including their supporters, medical staff and police. To the contrary, at the hospital Sarah Devall was asking what was wrong with her father, an inquiry that was inconsistent with her having heard what had happened on the telephone. Similarly, it was inconceivable that they would not have mentioned it when the Family Liaison officers attended Betsy Duvall’s home in the afternoon of 31 October 2009, yet the officers had no record of any accusation being made. It was not until Sarah Schock and Sarah Child were interviewed by the police that evening that they first mentioned the telephone call at the hospital. This had the hallmarks of Moses’ partner and daughter seeking to create evidence against the appellant whom they believed to have been responsible for his death.
28.
Mr Pownall, in his cogent submissions, similarly contended that the evidence of Wendy Roberts and Betsy Devall was too unreliable to be admissible. Neither was independent, and both had a motive to create or to improve the evidence against the appellant, if they believed him to have been responsible for the death of Moses. Their evidence was contradicted by Jane Buckley herself. It was not until 6 November 2009 that Betsy Devall told police that Jane Buckley had seen the stabbing, and told her that she had done so when she, Betsy, turned up at the scene, but was too frightened to say anything to the police. Yet on the previous day, 5 November, she had told the police that a girl with a pink top was with the appellant when he stabbed Moses, and that the stabbing happened at the small gate to Moses’s home. This information was stated in the police report to have come, not from Jane Buckley, but from a person not yet interviewed, believed to be Michael Roberts, who had been standing in his upstairs bedroom watching the incident. Betsy Devall’s account of being approached by Jane Buckley shortly after the stabbing and identifying the appellant was the murderer was not given to the police until 27 January 2010.
29.
Wendy Roberts specifically denied to the police on 8 November 2009 that anyone had told her that they had seen the stabbing. It was not until the end of January 2010 that she alleged that Jane Buckley had told her that she had witnessed the murder. It was not credible that if Wendy Roberts had been told by Jane that she had witnessed the murder, she, Wendy, would not have mentioned that to friends and to the police at a much earlier date. Again, the inference was that her evidence was intended to incriminate the person they believed to have been responsible for Moses’ death.
30.
For the prosecution, Mr Jafferjee QC submitted that the hearsay evidence had been properly admitted under the applicable provisions of the
Criminal Justice Act 2003
, and that in effect the appellant was seeking to go behind the verdict of the jury.
Discussion
31.
We think it necessary to analyse what was the procedural position at different stages of the trial.
32.
When the application was made by the prosecution to the Recorder, the proposed evidence as to what Moses was alleged to have said on the telephone to his wife immediately after he was stabbed was plainly admissible under the common law rule restated in paragraph 4 of
section 118(1)
. Admissibility under those provisions is not subject to the provisions of
section 118(2)
or 116, but the judge has power to exclude it under
section 126
of
the 2003 Act
and/or
section 78
of PACE. The judge refused to exclude this evidence. In his judgment, he said:
“I am not going to [exclude this evidence in the exercise of my discretion] because, looking at all the circumstances, including why Sarah Schock was at the hospital in the first place, what had happened to her, who she was with, and the whole sequence of events which, in my judgment, can be fully and fairly examined in cross-examination, including any explanation that Sarah Schock may wish to make before the jury, and the jury left to decide whether they can be sure that the words were said and relayed in the circumstances that they can act on the truth of what was said.”
33.
We see no error in the Recorder’s reasons, and no basis on which this Court could interfere with his decision.
34.
As mentioned above, Mr Pownall did not submit that the evidence as to what Jane Buckley was alleged to have said was not capable of falling within
section 114((1)
(d) of
the 2003 Act
. This provision, conferring power on the Court to allow hearsay evidence to be admitted if “the court is satisfied that it is in the interests of justice for it to be admissible”, is drafted in vague terms and is an unruly horse. There is considerable authority to the effect that this paragraph must be cautiously and narrowly construed and applied: see, e.g.,
R v Z
[2009] EWCA Crim 20
[2009] 1 Cr App R 34
. The prosecution case was that Jane Buckley would not tell the Court what she had seen because she was in fear for herself and her children. She was willing to testify, but would not tell the whole truth out of fear. This case was therefore not within section 116(2)(e), because Jane Buckley was willing to, and did give, evidence. The prosecution case was that her evidence would be false, or incomplete, because through fear she would not incriminate the appellant. We accept that if this case is made out, the prosecution were entitled to seek to adduce the evidence of what Jane Buckley had said under
section 114((1)
(d). The difference between a case in which it is alleged that a witness is unwilling to give evidence at all (section 116(2)(e)) and that in which it is alleged that a witness is willing to give evidence, but through fear is unwilling to give truthful evidence or a complete account of what he or she saw or heard, may not be substantial, and it would be curious if in such a case the witness’s previous statements could not, in an appropriate case, be adduced in evidence.
35.
The appellant’s case is, however, that this evidence should not have been admitted because it was inherently unreliable, given the circumstances in which it had first appeared and the fact that the witnesses who alleged that Jane Buckley had made statements incriminating the appellant were not impartial or independent.
36.
It was necessary for the Recorder to consider the factors listed in
section 114(2)
. He did so. For present purposes, the most important paragraphs were (e), (f), (g), (h) and (i). The Recorder considered all of these. As to (e) and (f), he said:
“As to (e) and (f), the so-called reliability subparagraphs, Mr Jafferjee has satisfied me in the light of other free-standing evidence, some of which is derived from telephone evidence, some from the statement of Danielle White, as well as from Jane Buckley's acceptance in the evidence that she has given thus far as to the events, that is to say, the surrounding circumstances of the meetings in which Betsy Devall and Wendy Roberts describe seeing and speaking to Jane Buckley; that the makers and the making of the hearsay statements are reliable.”
37.
This was a conclusion that the Recorder was entitled to reach on the basis of the material before him. He proceeded to consider paragraphs (g) to (i) and said that provided Jane Buckley was called to give evidence, either by the prosecution or himself, the safeguards envisaged by those paragraphs would be met, and the jury would have all the evidence before them with which to assess whether or not the alleged hearsay statements were true. We see no error in that decision or in that approach. It follows that we do not consider that the Recorder’s decision to allow the prosecution to admit the Jane Buckley hearsay was one with which we should interfere.
38.
However, once the prosecution had closed its case, the defence could at that stage have made a
Galbraith
submission that, for the reasons so cogently put forward by Mr Pownall, the evidence identifying the appellant as the person who stabbed Moses was not such that the jury could properly convict. However, it is significant that no such application was made.
39.
We of course do not know whether the jury accepted both the evidence of what Moses was alleged to have said when he was stabbed and that ascribed to Jane. So far as the latter is concerned, however, it is plain that it was open to the jury to accept that she was a witness to the stabbing. The telephone call between Moses and Sarah on Jane’s telephone coincided with the 999 call. Jane’s explanation for her not being present when the stabbing took place was that she had returned home because she had left her son there and he was crying. However, she was apparently present when the call was begun, having brought her telephone for the purpose. She was also present when the 999 call was made: she was heard giving the post code of the crime scene. There was relatively little time between her taking her telephone to Moses and the 999 call. Her evidence was that she had had time to return home, pick up her son and return to Moses’ home. Her explanation for her absence when the stabbing took place was contradicted by Danielle White’s original witness statement. If the jury concluded that Danielle White’s evidence that Jane had her son with her when she took her telephone to Moses was true, it was a very small step to conclude that Jane’s denial of having witnessed the stabbing was untrue, and that she was too frightened tell the truth. If so, the jury could accept that she did tell Jane Buckley and Betsy Devall what she had seen and heard.
40.
No complaint is made as to the Recorder’s summing up to the jury. He pointed out to them the matters now relied upon by the appellant as affecting the credibility of the hearsay evidence to which objection had been taken. There was evidence before the jury entitling them to conclude that the hearsay statements on which the prosecution relied, or at least one or more of them, had been made and were reliable. The appellant might have testified and contradicted that hearsay. He did not do so. His failure to do so would have weighed heavily with the jury.
41.
In these circumstances we have concluded that the appellant’s ground of appeal is not made out. His appeal will be dismissed. | {"ConvCourtName": ["Central Criminal Court"], "ConvictPleaDate": ["14 July 2011", "1 February 2011"], "ConvictOffence": ["murder", "grievous bodily harm"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Central Criminal Court"], "Sentence": ["imprisonment for life, and the period of 20 years was specified as the minimum term", "24 months imprisonment concurrent"], "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": ["Moses Devall"], "VicNum": ["the murder of Moses Devall."], "VicSex": ["him"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["home at 26 Swallowtail Close"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["telephone call", "witness statement", "Sarah Girl gave evidence"], "DefEvidTypeTrial": ["evidence should not have been admitted because it was inherently unreliable"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["conviction"], "AppealGround": ["ground of appeal relates to the hearsay evidence"], "SentGuideWhich": ["Criminal Justice Act 2003,"], "AppealOutcome": ["dismissed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["hearsay statements on which the prosecution relied, or at least one or more of them, had been made and were reliable."]} | {"ConvCourtName": ["Central Criminal Court"], "ConvictPleaDate": ["2011-02-01", "2011-07-14"], "ConvictOffence": ["grievous bodily harm", "murder"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Central Criminal Court"], "Sentence": ["24 months imprisonment concurrent", "imprisonment for life, and the period of 20 years was specified as the minimum term"], "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": ["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": ["telephone call", "witness statement", "Witness"], "DefEvidTypeTrial": ["evidence should not have been admitted because it was inherently unreliable"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["conviction"], "AppealGround": ["ground of appeal relates to the hearsay evidence"], "SentGuideWhich": ["Criminal Justice Act 2003,"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["hearsay statements on which the prosecution relied, or at least one or more of them, had been made and were reliable."]} | 186 |
No:
2004/04867/A7
Neutral Citation Number:
[2005] EWCA Crim 392
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Friday, 18 February 2005
B e f o r e:
LADY JUSTICE SMITH
MR JUSTICE BUTTERFIELD
and
MR JUSTICE GRIGSON
- - - - - - - - -
R E G I N A
- v -
S. D. R.
- - - - - - - - -
Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - - - -
MISS G MILSOM
appeared on behalf of
THE APPELLANT
- - - - - - - - -
J U D G M E N T
Friday, 18 February 2005
LADY JUSTICE SMITH:
I will ask Mr Justice Butterfield to give the judgment of the court.
MR JUSTICE BUTTERFIELD:
1.
On 22 July 2004, at the Crown Court at Inner London, S.R. was sentenced to life imprisonment for one offence of rape and a separate offence of attempted kidnapping, to both of which offences he had pleaded guilty at an earlier hearing. The sentencing judge, His Honour Judge Stone QC, ordered that he should serve a minimum of seven years' imprisonment before consideration was given to his release on parole. He now appeals against that sentence by leave of the single judge.
2.
The only issue arising on this appeal is whether the judge was wrong to impose a sentence of life imprisonment instead of imposing upon the appellant a Hospital Order under section 37 of the Mental Health Act, with a restriction without limit of time under section 41. Miss Milsom, who appears for the appellant, as she did in the court below, accepts that if this court considers that it was not appropriate to make a Hospital Order then the sentence of life imprisonment and the recommended period of detention before consideration is given to parole are both wholly appropriate.
3.
The appellant is now 30 years of age. He has a formidable criminal history. He began to offend when he was 15 and since then has amassed a total of 17 convictions for offences of violence, dishonesty and possession of drugs. In particular he has five separate convictions for robbery or attempted robbery, in respect of the last of which he was sentenced to a total of five years' imprisonment. He has also been convicted of a number of offences relating to his failure to comply with bail, community orders and licence conditions.
4.
The appellant was first admitted to a psychiatric hospital in December 2001. His mental state was assessed as not floridly abnormal. He was prescribed anti-psychotic medication and on discharge in January 2002 diagnosed as suffering from "an insidiously evolving paranoid psychosis possibly exacerbated by heavy cannabis use, although there were elements suggestive of mania".
5.
The appellant was re-admitted to hospital in 2002, having been observed prior to admission exposing himself. He was diagnosed as suffering from schizophrenia on this occasion, but discharged in July 2002. He was re-admitted again in March 2003, reporting that he felt paranoid and that people were going to kill him. He had not been taking his prescribed medication and quickly responded to that medication once in hospital. He was discharged on 16 May 2003.
6.
The appellant committed the rape in the early hours of the morning of 22 July 2003, about ten weeks later. His victim was a 19 year old girl, a visitor to this country, who was waiting at a bus stop at about 1am. She was a total stranger to the appellant. He went up to her, told her he had a knife, grabbed the scarf she was wearing and twisted it tightly around her neck so that she could not breath. He then punched her to the face and knocked her to the ground, where he punched her again. He dragged her by the scarf around her neck to behind some bushes, pulled down her trousers and underwear and raped her. Having done so, he picked up his victim's handbag and, despite her pleas not to take her personal possessions, he did just that, making off with the bag and its contents.
7.
The police were alerted and the victim was medically examined. She had extensive bruising and swelling to her neck, shoulder and ear. She suffered considerable pain in the course of the rape, the experience of violent sex against her will, and severe psychological trauma inevitably following such an attack.
8.
The attempted kidnap was committed about 16 hours later on the afternoon of the same day. The appellant's victim this time was a 14 year old girl -- again, as with his rape victim, a complete stranger to him. He followed her to her home for some considerable distance, both on foot and by train. The girl tried to shake the appellant off, but to her increasing fear he persisted in following her despite her efforts. As she reached her home, the appellant still nearby, she took out her keys. At that point the appellant demanded her keys from her. She refused to hand them over and asked for help from a woman nearby. When the woman confronted the appellant and demanded to know what was going on, he pretended that he was going to take the girl to her mother's. The woman told the appellant to leave the girl alone, but his response was to grab hold of the girl by her arm and try forcibly to drag her off. The woman to whom the girl had turned for help tried to hold on to the girl. A tug of war developed, with the girl shouting and crying in her understandable, considerable distress and fear. Another passer-by joined in. With the girl herself resisting as hard as she could, eventually the appellant gave up and made off. A man in the vicinity, who had seen what was happening and telephoned the police, followed the appellant in his van as he left the scene, thereby enabling the police to arrest him nearby.
9.
The mounting fear and distress which the young girl experienced requires no further elaboration from this court.
10.
After his arrest the appellant was seen and assessed by the doctor who had been responsible for his treatment when he had been admitted to hospital on earlier occasions. That doctor could find no evidence of psychotic symptoms, merely noting that the appellant was irritable.
11.
In interview the appellant made no comment to all questions asked on him.
12.
On admission to prison on remand, the appellant was noted to be stable and compliant with his medication. No overt psychotic symptoms were apparent. However, over the following months his condition appeared to deteriorate. He was eventually transferred to the Shaftesbury Clinic at Springfield University Hospital in South West London, where he remained until sentence.
13.
The sentencing judge concluded that in his attempt to kidnap the 14 year old girl the appellant intended serious harm to her, and that in consequence other young females could be similarly at risk from him. The judge found that the appellant posed a serious danger to the public, and particularly to women -- a serious danger which was likely to continue for a long time. In the light of that conclusion, which Miss Milsom accepts, as did the doctors, was entirely appropriate, the choice facing the sentencing judge was one of life imprisonment or a Hospital Order without limit of time.
14.
To resolve that issue the judge heard evidence from two consultant psychiatrists, Dr Browne for the prosecution, a retired psychiatrist with 30 years experience as a consultant, who examined the appellant on two occasions; and Dr Sarkar, an experienced psychiatrist who had been a consultant for about one year and who had had the day-to-day charge of the appellant since his admission to the Shaftesbury Clinic.
15.
Consequent upon the order of the single judge this court has had the advantage of reading the transcripts of the evidence that each consultant psychiatrist gave before the sentencing judge. In the opinion of Dr Sarkar the appellant suffered from paranoid schizophrenia. He had seen no symptoms when examining the appellant, but he relied on nursing staff who informed him that the appellant had shown such symptoms on other days. Dr Sarkar considered that the appellant fell into that category of schizophrenics who were well between psychotic episodes, but he accepted that detecting faking by patients was not an easy area. He further agreed that cannabis use may have been a significant factor in the appellant's case. Dr Sarkar recommended a Hospital Order, but accepted that drug therapy would be the main component of any treatment, and that such treatment would be equally available to him in prison. In his oral evidence Dr Sarkar urged the merits of a Hospital Order, principally on the basis that a restriction order would enable supervision of the appellant in the community on release, which he envisaged taking place between three and eight years from the date of sentence. Dr Sarkar did not appear to have a great understanding of the role of the Parole Board and licence conditions imposed when life sentence prisoners are released.
16.
In contrast, Dr Browne did not consider that a Hospital Order was appropriate. He pointed out that on previous admissions to hospital the appellant had made a rapid recovery from his symptoms. Further, when Dr Browne saw the appellant in prison he appeared to have total gross amnesia; he could remember nothing about anything. Dr Browne considered that such a condition was a very unusual presentation, not consistent with schizophrenia and much more consistent with offenders who wish to avoid punishment for what they have done and deceive their doctors. Put another way, Dr Browne thought that the appellant was faking. Dr Browne found that the appellant was not psychotic and thought that such behaviour as could properly be described as unusual or odd was likely to be attributable to his abuse of cannabis.
17.
The sentencing judge heard the evidence from both doctors over a period of about two hours. He plainly gave their evidence very careful consideration. Having done so, he concluded:
"Having heard the evidence of the doctors, I share Dr Browne's concerns about your case and I find that his opinion more closely accords with the available evidence about you. I prefer his opinion.
The evidence I have heard, therefore, does not satisfy me that your mental disorder is of a nature or degree which makes it appropriate for you to be detained in a hospital, the test required by section 37(a)(i) of the Mental Health Act.
Further, I am not of the opinion that a hospital order is the most suitable method of disposing of your case, the test required by section 37(b) of the Mental Health Act."
18.
Miss Milsom seeks to rely on
R v Howell
7 Cr App R(S) 360, in which this court held that, where medical opinions are unanimous and a bed is available in a secure hospital, a Hospital Order should be made. However, as the sentencing judge pointed out, this case is very different. The doctors were not unanimous. It was therefore a matter for the judge to resolve in the light of the evidence he heard and all the circumstances of the case.
19.
Miss Milsom submits that the judge was wrong to prefer the evidence of Dr Browne, in particular because he had not seen the appellant since April 2004. She makes other criticisms of his evidence, which we have also considered with care.
20.
This court would pay tribute to the careful and scrupulously fair way in which the sentencing judge approached this important and difficult issue. He had the benefit of seeing both doctors give evidence over a substantial period. In our judgment there is nothing within the transcripts or the sentencing remarks which gives us the slightest reason to dissent from the conclusions which he reached.
21.
We have little, if any, information on the appellant's progress in custody over the past seven months, but observe that if there had been any significant deterioration of his condition requiring hospital treatment, there is power to transfer him as a convicted prisoner to a psychiatric hospital for receipt of such treatment as the doctors may advise. Such a transfer can be achieved, as the evidence before the sentencing judge shows, within a matter of hours if there is any urgency about the situation. Indeed, in the event, a few days before the hearing of this appeal the appellant was transferred back to the Shaftesbury Clinic under
section 48 of the Mental Health Act 1983
, presumably because of an episode requiring treatment in a psychiatric hospital. No doubt when he has recovered sufficiently, which in the light of his previous history is not likely to take very long, he will be returned to prison.
22.
In the circumstances we are quite satisfied that the judge was correct in the conclusions he reached and the order he made. Accordingly, this appeal is dismissed. | {"ConvCourtName": ["Crown Court at Inner London"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["attempted kidnapping", "rape"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["at an earlier hearing"], "RemandDecision": ["prison on remand"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Inner London"], "Sentence": ["life imprisonment"], "SentServe": ["life imprisonment"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["paranoid psychosis"], "OffIntoxOffence": ["cannabis use"], "OffVicRelation": ["total stranger"], "VictimType": ["19 year old girl"], "VicNum": ["His victim", "victim this time"], "VicSex": ["19 year old girl"], "VicAgeOffence": ["14 year old girl", "19 year old"], "VicJobOffence": ["14 year old girl"], "VicHomeOffence": ["her home"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["woman nearby", "medically examined", "man in the vicinity"], "DefEvidTypeTrial": ["consultant psychiatrists"], "PreSentReport": ["data not available"], "AggFactSent": ["criminal history", "severe psychological trauma"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["APPELLANT"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against that sentence"], "AppealGround": ["whether the judge was wrong to impose a sentence of life"], "SentGuideWhich": ["Mental Health Act"], "AppealOutcome": ["appeal is dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we are quite satisfied that the judge was correct in the conclusions"]} | {"ConvCourtName": ["Crown Court At Inner London"], "ConvictPleaDate": ["Don't know"], "ConvictOffence": ["attempted kidnapping", "rape"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["at an earlier hearing"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Inner London"], "Sentence": ["life imprisonment"], "SentServe": ["Concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Had mental health problems"], "OffIntoxOffence": ["Yes-drugs"], "OffVicRelation": ["Stranger"], "VictimType": ["Individual person"], "VicNum": ["1 of 2", "2 of 2"], "VicSex": ["All Female"], "VicAgeOffence": ["14", "19"], "VicJobOffence": ["Don't know", "Child"], "VicHomeOffence": ["Don't Know", "Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Eye-witness testimony", "Medical"], "DefEvidTypeTrial": ["consultant psychiatrists"], "PreSentReport": ["Don't know"], "AggFactSent": ["severe psychological trauma", "criminal history"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against that sentence"], "AppealGround": ["whether the judge was wrong to impose a sentence of life"], "SentGuideWhich": ["Mental Health Act"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we are quite satisfied that the judge was correct in the conclusions"]} | 326 |
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No:
201800364 A2
Neutral Citation Number:
[2018] EWCA Crim 1473
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 22 May 2018
B e f o r e
:
LADY JUSTICE HALLETT DBE
VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION)
MR JUSTICE STUART-SMITH
MR JUSTICE MARTIN SPENCER
- - - - - - - - - - - - - - - - - -
R E G I N A
v
MICHAEL RONALD CURTIS
- - - - - - - - - - - - - - - - - -
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 Longstaff
appeared on behalf of the
Applicant
- - - - - - - - - - - - - - - - - -
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.
1.
MR JUSTICE MARTIN SPENCER: On 12 January 2018, the applicant was sentenced to a term of 2 years' imprisonment at Manchester Crown Court by His Honour Judge Leeming for two offences of supplying a class A controlled drug, contrary to section 4(1) of the Misuse of Drugs Act 1971.
2.
The applicant had pleaded guilty before the Magistrates' Court at the first reasonable opportunity and had been committed to the Crown Court for sentence. He was thus entitled to the full discount of one third to take account of his guilty plea.
3.
The arrest and conviction of the applicant arose out of Operation Tightrope, which was a police operation to investigate the supply of drugs in the Whalley Range area of Manchester during 2017.
4.
On 5 May 2017, an undercover officer attended the Grandale Street area, where he saw the applicant in a wheelchair being pushed by another male. The officer approached the applicant to ask about the supply of drugs. He was asked to take over the pushing of the applicant's wheelchair and was directed to an address on Shotton Walk. The officer was told to wait around the corner whilst the applicant attended an address there. He overheard the applicant asking a female for cocaine and heroin. The applicant was told that she would have no cocaine for 30 minutes. The applicant then returned to the officer and gave him his money back. The officer observed the applicant had two small pieces of white substance in his hands. After a further conversation, the applicant agreed to obtain heroin for the officer from another source in return for £3. The applicant, the officer and another male then went to Claremont Road and the applicant was supplied with a single wrap of heroin of 0.19 grams with a purity of 14 per cent, which he then passed on to the officer.
5.
The second offence occurred on 21 June 2017, when the same undercover officer was on Thurlow Street. He spoke to a male and asked for the drug dealer known as "Spar". The male then directed the officer to the applicant. The officer asked the applicant for the number of "Spar" but the applicant offered instead to call another dealer called "Locks". He gave that dealer's number to the officer, who called the number and then handed the telephone to the applicant. The officer heard the applicant order a wrap of cocaine and a wrap of heroin. After a couple more calls, they were directed to a car park behind a block of flats on Thurlow Street. A number of males arrived and the applicant went over to them. He then returned to the officer and indicated to him he could have some of the drugs that he had ordered. He pulled some powder out of a bag to give to the officer. The deal was 0.6 grams of heroin with the purity of 55 per cent.
6.
At the end of Operation Tightrope the applicant was arrested and interviewed on 16 November 2017. He could not recall the incidents in question.
7.
In sentencing the applicant, the learned judge referred to the applicant's previous convictions, observing that he is a prolific and persistent offender with 91 convictions for 222 offences since August 1986, when he was aged 15, for which he had been dealt with in a variety of ways.
8.
The learned judge observed that the applicant is no stranger to custody and had a number of drug offences recorded against him, including two offences of being concerned in an offer to supply cocaine, and a further offence of being concerned in an offer to supply heroin, for which he was dealt with in 2012 and made the subject of a community order for 12 months. However, that order failed to work, his offending continued and he has a history of non-compliance with court orders and sentences generally. The learned judge observed:
"It seems that the majority of your offending has involved acquisitive crime to fund your drug addiction."
9.
The learned judge took full account of the pre-sentence report prepared on the applicant's behalf, which referred to his life having been blighted by his drugs addiction and to the applicant having been a user for 30 years with concurrent alcohol dependence and total immersion at times in the drug culture. The applicant told the probation officer that he had acted as a go-between between the officer and the drug dealers higher up the chain. His leg had been amputated in 2011 as a result of damage caused by the injection of drugs.
10.
The learned judge recorded that Mr Longstaff, who represented the applicant in the court below and again before us today, had invited him to sentence the applicant on the basis that this was activity at the lowest level of the guideline, "that you were a go-between, or a conduit, between the officer and the dealer, this was not direct selling on your part". Mr Longstaff has repeated that submission before us. Having been reminded by Mr Longstaff of the low value of the drugs in question and their low purity, the judge remarked:
"But this is street dealing and so the quantity and the value are secondary factors."
11.
The judge sentenced the applicant by reference to the definitive guideline for drug offences, categorising the offence as category 3, lesser role, with a starting point of three years' custody and a sentencing range of between two and four and a half years' imprisonment.
12.
Taking the aggravating factors into account, those being the applicant's previous convictions, the impact on the community and the fact that these being two separate transactions 6 weeks apart did not represent isolated behaviour, and taking also the mitigating factors into account, the learned judge stated that the least sentence he could impose would be one of 3 years' imprisonment as a starting point, to which he applied the full one-third discount for plea, resulting in the sentence of 2 years' imprisonment, which he imposed concurrently on each count.
13.
Mr Longstaff, on behalf of the applicant, both in his initial application for permission to appeal and again before us today, has argued that the learned judge erred in categorising this case as one of street dealing and has therefore misapplied the guideline. He submits that the relevant category ought to have been a category 4 offence with a lesser role with a lower starting point and a lower sentencing rage.
14.
He further, as his second submission, submitted that the starting point of 3 years' imprisonment is manifestly excessive, arguing that the learned judge paid insufficient regard to the mitigating features in the case.
15.
Finally, he submitted that the sentence of imprisonment should not have been immediate but should have been suspended.
16.
In regard to both the second and third submissions, he submitted that the impact of the sentence was disproportionately great on this offender, who was trying to address his addiction and for whom accommodation has been kept open pending this appeal.
17.
In refusing permission to appeal, the single judge gave the following reasons:
"I do not accept that the judge fell into error into his categorisation of the two offences as street dealing within the guideline (Level) 3. However, even if he did and he should have categorised the offences as level 4 his starting point sentence of 3 years after a trial was not manifestly excessive given (a) that sentence is the upper limit for level 4 and (b) the Applicant's previous convictions were very serious aggravating features.
I also am of the view that for the reasons so cogently expressed by the judge he was entitled to conclude that the sentence imposed should not be suspended. The applicant's history of non-compliance with non-custodial orders was highly material to this issue and, to repeat, the judge was entitled to reach the view that it was not appropriate to suspend the sentence."
18.
This application to renew the application for permission to appeal was received 44 days out of time. However, the applicant's solicitors have provided to the court a letter dated 8 March 2018 which they say was sent to the Criminal Appeal Office with the signed renewal notice attached and that letter would only have been 2 days out of time. However, it was never received by the Criminal Appeal Office.
19.
We have no reason to believe that the letter of 8 March was not genuinely sent and somehow lost and therefore being only 2 days out of time we grant an extension of time to renew this application for permission to appeal.
20.
However, despite Mr Longstaff's attractive argument before us today on behalf of the applicant, for which we are extremely grateful to him, we consider that the single judge was correct for the reasons that he stated. In our judgment, this was clearly street dealing meriting categorisation of these offences as category 3. In any event, we also agree with the single judge that the aggravating factors justified placing these offences at the top end of category 4 and we consider that it is not arguable that the sentence was manifestly excessive.
21.
We consider the sentence of immediate imprisonment of 2 years was wholly justified and for those reasons we refuse permission to appeal.
22.
THE VICE PRESIDENT: Thank you, Mr Longstaff. Giving credit to your submissions, we have decided not to make a loss of time order in this case.
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": ["data not available"], "ConvictPleaDate": ["12 January 2018"], "ConvictOffence": ["supplying a class A controlled drug"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["first reasonable opportunity"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Manchester Crown Court"], "Sentence": ["2 years' imprisonment"], "SentServe": ["concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["addiction"], "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": ["undercover officer"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["impact on the community", "prolific and persistent offender", "91 convictions for 222 offences", "two separate transactions", "history of non-compliance"], "MitFactSent": ["discount of one third to take account of his guilty"], "VicImpactStatement": ["data not available"], "Appellant": ["Applicant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["sentence was manifestly excessive."], "AppealGround": ["the learned judge paid insufficient regard to the mitigating", "learned judge erred in categorising this case as one of street dealing"], "SentGuideWhich": ["definitive guideline for drug offences", "Misuse of Drugs Act 1971."], "AppealOutcome": ["refuse permission to appeal."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["immediate imprisonment of 2 years was wholly justified"]} | {"ConvCourtName": ["data not available"], "ConvictPleaDate": ["2018-01-12"], "ConvictOffence": ["supplying a class A controlled drug"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["first reasonable opportunity"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Manchester Crown Court"], "Sentence": ["2 years' imprisonment"], "SentServe": ["Concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "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 testimony"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["two separate transactions", "impact on the community", "history of non-compliance", "91 convictions for 222 offences", "prolific and persistent offender"], "MitFactSent": ["discount of one third to take account of his guilty"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Sentence (is unduly excessive)"], "AppealGround": ["the learned judge paid insufficient regard to the mitigating", "learned judge erred in categorising this case as one of street dealing"], "SentGuideWhich": ["definitive guideline for drug offences", "Misuse of Drugs Act 1971."], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["immediate imprisonment of 2 years was wholly justified"]} | 159 |
Case No:
2002/02921/X3
Neutral Citation Number:
[2004] EWCA Crim 2237
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BRADFORD CROWN COURT
HIS HONOUR JUDGE HULL
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
Thursday, 26
th
August 2004
Before :
THE RIGHT HONOURABLE LORD JUSTICE MAY
THE HONOURABLE MR JUSTICE GRAY
and
THE HONOURABLE MRS JUSTICE HALLETT DBE
- - - - - - - - - - - - - - - - - - - - -
Between :
R W PRIESTLEY
Appellant
- and -
R
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)
- - - - - - - - - - - - - - - - - - - - -
D NATHAN QC
for the
APPELLANT
G KEARL QC and N EDWARDS
(instructed by
THE CROWN
) for the
RESPONDENT
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice May:
Introduction
1.
On 16
th
April 2002, the appellant, who is aged 62 or thereabouts, pleaded guilty in the Crown Court at Bradford before His Honour Judge Hull to counts 2, 5 and 11 of an indictment containing 15 counts. Each of these counts alleged conspiracy to sell or distribute goods which bore a sign likely to be mistaken for a registered trade mark contrary to
section 1(1) of the Criminal Law Act 1977
. The conspiracies were to contravene
section 92(1)(b)
of the
Trade Marks Act 1994
. For count 2, the offending articles were bottles of perfume and fragrance; for count 5, bottles of Moet & Chandon champagne; and for count 11, a quantity of clothing. The other 12 counts were left on the file. The period during which the appellant was alleged to have committed the offences in each of the three counts to which he pleaded guilty was between 1
st
January 1996 and 4
th
November 2000.
2.
On 17
th
April 2002, the appellant was sentenced to 18 months imprisonment on count 2, 9 months imprisonment concurrent on count 5, and 4 months imprisonment concurrent on count 11. His total sentence of imprisonment was thus 18 months.
3.
On 17
th
December 2002, Judge Hull made a confiscation order against the appellant of £2,290,907.52. The judge fixed the period to be served in default of payment as 10 years, wrongly understanding that he was obliged to impose that as the alternative sentence. Mr Kearl QC, for the Crown, accepts that he mistakenly so submitted – see
R v Szrajber
(1994) 15 Cr. App. R. 821 at 824. The judge also ordered the appellant to pay £30,000 towards the prosecution costs.
4.
The appellant appeals, by leave of the full court, against the amount of the confiscation order, the period of imprisonment in default and the costs order.
5.
As the amount of the confiscation order indicates, the appellant was engaged with others in a counterfeiting operation of factory proportions. The prosecution case summary had described a police operation in Huddersfield in November 2000 and a Trading Standards operation in Leeds in November 1999. These operations identified a warehouse premises used for the production of counterfeit champagne in the Leeds area and three premises in the Huddersfield area used for the production of counterfeit perfumes. All or most of the major perfume houses and their products, together with the respective registered trade marks, were counterfeited on a massive scale. The police investigation suggested that the illicit operation had been running since 1996. It had been operated on a grand scale for the two years up to November 2000 from these premises. It was said that the scale of the operation had undoubtedly resulted in the loss of millions of pounds of revenue to both the perfume houses and the exchequer. The appellant was arrested on 3
rd
November 2000. He was charged with others, but his major role in the operation gave rise to the confiscation proceedings in his case. The main subject of the confiscation proceedings was counterfeit perfume and fragrance.
The confiscation proceedings
6.
The procedural history of the confiscation proceedings is relevant. It is as follows.
7.
The appellant was arrested on 3
rd
November 2000. On 29
th
January 2001, Maurice Kay J made a restraint order prohibiting him from dealing with or disposing of his assets except as authorised by the High Court.
8.
The appellant was sentenced on 17
th
April 2002. On that day, there was produced a document headed “Proposed Basis of Plea”. This was a 19 paragraph document which asserted an understanding that the main focus of the offending concerned the distribution of some 230,000 bottles of perfume and other fragrances. It was suggested that the majority of these had been sold abroad in Spain or Hungary, and that only some 37,000 bottles had been sold within the United Kingdom, being the territorial extent of the 1994 Act – see section 106 of that Act. It was suggested that the appellant had charged between £2.75 and £3.50 per bottle and that, where the charge was £3.50, 50p per bottle was retained by an associate. Broadly speaking, the judge sentenced the appellant on this basis. But Mr Nathan QC, who appears for the appellant on this appeal, accepts that the prosecution had made clear that they did not accept this basis of plea for the purpose of the confiscation proceedings.
9.
On 17
th
April 2002, the defendant was ordered to provide by 15
th
May 2002 an affidavit in response to questions set out in a schedule provided to him asking for details of his income, bank and building society accounts and property. No affidavit was received by that date.
10.
On 13
th
June 2002, the prosecution served its statement under
section 73 of the Criminal Justice Act 1988
in accordance with the timetable set out by the court. On 25
th
June 2002, the case was mentioned at the crown court at the request of the prosecution. The appellant was again ordered to provide an affidavit, and also a response to the prosecutor’s statement, by 23
rd
July 2002. No sworn affidavit was received or filed at the court by that date. A short unsworn affidavit was received on 31
st
July 2002.
11.
Because the defence had failed to respond to any of the court orders, the prosecution again had the case listed for mention on 9
th
September 2002. On that day, a response to the prosecutor’s statement was provided, but still no sworn affidavit had been received. An explanation was given for this. The court ordered that the defendant’s affidavit should be served within 7 days and that the defence were to provide details of any accountancy evidence to be relied on within 7 days. No accountant’s report was served. No sworn affidavit was received.
12.
On 30
th
September 2002, the hearing of the confiscation proceedings began. The judge considered a submission on behalf of the appellant that the confiscation should relate only to counterfeit goods sold within the United Kingdom, the territorial extent of the 1994 Act. The judge rejected this submission. There was a ground of appeal to this court to the effect that this ruling was wrong. But Mr Nathan did not pursue this ground orally before the court in the face of the obvious facts that the conspiracy took place within the jurisdiction and all the counterfeit goods were at least distributed within the jurisdiction for the purposes of
section 92(1)(b)
of the 1994 Act. Also on 30
th
September 2002, DC Whittleston gave evidence. He adopted the contents of the prosecutor’s statement which he had compiled and was cross-examined by Mr Nathan.
13.
On 3
rd
December 2002, the defendant was again ordered to answer the schedule of questions served by the Crown and to serve a sworn affidavit. No sworn affidavit was received.
14.
Applications to adjourn the proceedings further were made by the defence on 10
th
December and 16
th
December 2002. By this time, the appellant had dismissed his legal representatives, including Mr Nathan. On 16
th
December 2002, Mr Hatton QC appeared for the appellant to apply for a further adjournment. When this was refused, his instructions were withdrawn, but he remained to assist the court. DC Whittleston was recalled to correct an error in the calculations. The appellant then had the opportunity to give evidence and call witnesses. He did neither of these. There was still no sworn affidavit before the court. The hearing concluded. The judge adjourned the matter to the following day to give judgment.
15.
On 17
th
December 2002, the appellant was permitted to address the court further on an application to adjourn. The judge rejected this application. The appellant also referred to two witnesses who would be able to contradict details of the prosecution’s case derived from certain documents. The judge declined to hear these witnesses. There were subsequently applications to this court for the two witnesses to give fresh evidence on this appeal. Mr Nathan did not pursue these applications before us.
Criminal Justice Act 1988
16.
The confiscation proceedings were brought under the
Criminal Justice Act 1988
.
17.
Section 71
of the 1998 Act provided that, where an offender is convicted before the crown court of an offence of a relevant description, it is the duty of the court to act in accordance with the section, if the prosecutor has given written notice to the court that he considers that it would be appropriate so to proceed. The prosecution gave the appropriate notice in the present case.
18.
Section 71
(1A) requires the court first to determine whether the offender has benefited from any relevant criminal conduct.
Section 71
(1D) provides that relevant criminal conduct means offences of which the offender is convicted in the same proceedings, or offences which the court takes into consideration in determining his sentence. This is, however, subject to section 72AA(6).
19.
Section 71
(1B) provides that, if the court determines that the offender has benefited from any relevant criminal conduct, it shall determine the amount to be recovered in accordance with sub-section (6), and make an order under
section 71
ordering the offender to pay that amount.
Section 71(6)
provides that this sum shall be equal to the benefit in respect of which it is made, or the amount appearing to the court to be the amount that might be realised at the time the order is made, whichever is the less.
20.
Thus the court in the present case had to determine the amount by which the appellant had benefited from his relevant criminal conduct; and the amount that might be realised at the time of the order; and order him to pay whichever was the lesser of these amounts.
21.
By
section 71(4)
a person’s benefit, if he obtains property as a result of or in connection with committing an offence, is the value of the property so obtained. This means that the court is concerned with the gross value of property obtained and is not concerned, for instance, to deduct the cost of obtaining it.
22.
By
section 71
(7A), the standard of proof required to determine any question arising as to whether a person has benefited from an offence or the amount to be recovered is that applicable in civil proceedings. It is accepted that the burden of proof of the amount by which an offender has benefited is on the prosecution; but the burden of proving that the amount that might be realised is less than this is on the defence.
23.
Since in the present proceedings the appellant did not give evidence or call witnesses, the likelihood of his establishing that his realisable property was less than any amount found as his benefit was not great. This was particularly so in the light of
section 73A
of
the 1988 Act
.
Section 73A(2)
provides that, for the purpose of obtaining information to assist it in carrying out its relevant functions, the court may at any time order the defendant to give it such information as may be specified in the order. Sub-section (3) provides that such an order may require all, or any specified part, of the required information to be given to the court in such manner, and before such date, as may be specified in the order. Sub-section (5) provides that, if the defendant fails, without reasonable excuse, to comply with any order under
section 73A
, the court may draw such inference from that failure as it considers appropriate.
24.
The appellant was ordered on a number of occasions to provide information and a sworn affidavit. He eventually provided a response to the prosecutor’s statement, but no other information and no sworn affidavit. The court was, in our view, entitled to disregard the appellant’s short unsworn affidavit, just as it would have been entitled to place little weight on a sworn affidavit, if the appellant had provided one, but declined to be cross-examined upon it.
25.
The central point here is that the appellant gave no evidence and called no witnesses. In particular, although Mr Nathan has emphasised the terms of the Proposed Basis of Plea, the prosecution had not accepted this for the confiscation proceedings. It was not evidence in the absence of the appellant giving evidence to support it. The court was entitled under
section 73A(5)
to draw such inferences from the appellant’s failure to comply with its orders as it considered appropriate. Such available inferences extended to inferences from his failure to give evidence.
26.
Section 72AA
applies to confiscation proceedings under
section 71
, where the prosecutor’s notice contains a declaration, as it did in this case, that it is the prosecutor’s opinion that the case is one in which it is appropriate for the provisions of the section to be applied; and where (relevantly for present purposes) the offender is convicted of at least two qualifying offences. It is accepted that this appellant was so convicted in these proceedings.
27.
Sections 72AA
further provides:
“ (3)
When proceeding under
section 71
above in pursuance of the notice mentioned in subsection (1)(a) above, the court may, if it thinks fit, determine that (subject to subsection (5) below) the assumptions specified in subsection (4) below are to be made for the purpose-
(a)
of determining whether the defendant has benefited from relevant criminal conduct; and
(b)
if he has, of assessing the value of the defendant’s benefit from such conduct.
(4)
Those assumptions are-
(a)
that any property appearing to the court-
(i)
to be held by the defendant at the date of conviction or at any time in the period between that date and the determination in question, or
(ii)
to have been transferred to him at any time since the beginning of the relevant period,
was received by him, at the earliest time when he appears to the court to have held it, as a result of or in connection with the commission of offences to which this Part of this Act applies;
(b)
that any expenditure of his since the beginning of the relevant period was met out of payments received by him as a result of or in connection with the commission of offences to which this Part of this Act applies; and
(c)
that, for the purposes of valuing any benefit which he had or which he is assumed to have had at any time, he received the benefit free of any other interests in it.
(5)
Where the court has determined that the assumptions specified in subsection (4) above are to be made in any case it shall not in that case make any such assumption in relation to any particular property or expenditure if-
(a)
that assumption, so far as it relates to that property or expenditure, is shown to be incorrect in the defendant’s case;
(b)
that assumption, so far as it so relates, is shown to be correct in relation to an offence the defendant’s benefit from which has been the subject of a previous confiscation order; or
(c)
the court is satisfied that there would (for any other reason) be a serious risk of injustice in the defendant’s case if the assumption were to be made in relation to that property or expenditure.
(6)
Where the assumptions specified in subsection (4) above are made in any case, the offences from which, in accordance with those assumptions, the defendant is assumed to have benefited shall be treated as if they were comprised, for the purposes of this Part of this Act, in the conduct which is to be treated, in that case, as relevant criminal conduct in relation to the defendant.”
28.
These provisions, indeed the provisions for confiscation as a whole, have been described as draconian. Their evident purpose is to enable the court to make orders depriving criminals of the proceeds of their crime when precise quantification of those proceeds may be very difficult. Section 72AA(3) gives the court a discretion (“… the court may, if it thinks fit, determine …”) to make assumptions for the purpose of determining under
section 71
whether a defendant has benefited from relevant criminal conduct, and, if he has, of assessing the value of his benefit. The discretion in this sub-section is to be contrasted with the requirement to make equivalent assumptions in
section 4(2) of the Drug Trafficking Act 1994
. This contains confiscation provisions for drug trafficking offences which are otherwise broadly equivalent to those in
the 1988 Act
for criminal conduct generally.
29.
In
the 1988 Act
, the assumptions are that property held by the defendant at or after the date of his conviction, or transferred to him since the beginning of the relevant period, was received by him as a result of or in connection with the commission of relevant offences. The same applies to any expenditure of his since the beginning of the relevant period. By sub-section (5), if the court has determined to make these assumptions generally, it shall not do so in relation to particular property or expenditure, if the assumption is proved to be incorrect in the defendant’s case; or if the court is satisfied that there would be a serious risk of injustice if the assumption were made. It is accepted that the burden is on the defendant to establish for particular property or expenditure that the assumptions should not be made for these reasons. The effect of sub-section (6) is that, where the assumptions are made, the ambit of “relevant criminal conduct” for the purpose of
section 71
(1D) is enlarged beyond the offences of which the defendant is convicted in the proceedings or offences taken into consideration in determining his sentence. As will be seen, it is accepted in the present case that, from 1
st
January 1996 to 4
th
November 2000, the appellant had established no income other than that derived from his criminal activities. Accordingly, if the assumptions were to be made, they could apply, subject to section 72AA(5), to his entire expenditure during that period and to all money in or transferred into his bank accounts during that period.
The prosecution case
30.
The relevant bones of the prosecution case as contained in the prosecutor’s statement and supported in evidence by DC Whittleston were as follows.
31.
The most recent of the appellant’s 6 previous convictions was at Leeds Crown Court on 22
nd
December 1994. He was then convicted of 13 offences contrary to the
Trade Marks Act 1938
. He was sentenced to a total of 4 years imprisonment, subsequently reduced to 3 years on appeal. The court also made a confiscation order under
the 1988 Act
of £93,000 and a deprivation order of £35,255 under
section 43 of the Powers of Criminal Courts Act 1973
. A receivership order was made to enforce these orders. We were told that they were paid. The appellant was released from prison on 15
th
February 1996.
32.
The relevant period for the purpose of the present confiscation proceedings began on 5
th
November 1994 – 6 years before the appellant was first charged. But DC Whittleston restricted the period to one beginning on 15
th
February 1996, the date when the appellant was released from prison. DC Whittleston concluded that the appellant had no legitimate source of income during this reduced relevant period.
33.
The prosecutor’s statement proceeded on the assumptions in
section 72AA
of
the 1988 Act
.
34.
There had been recovered from the appellant’s home address and one of the industrial units a total of £107,642.69 in cash. This was property held by the appellant within section 72AA(4)(a)(i) of
the 1988 Act
.
35.
There was money found to have been lodged in four bank accounts within the relevant period amounting to £280,896.69. Of this, £245,213.72 related to an account with Banco Santander in Tenerife. The balance was in three accounts in England which were joint accounts of the appellant and his wife. These sums were property held by the appellant within section 72AA(4)(a)(i) of
the 1988 Act
.
36.
DC Whittleston then calculated income from the sale of counterfeit perfume. Cheshire Services (UK) Limited had supplied 361,075 bottles for perfume or fragrances between January 1997 and November 2000. When the appellant was arrested, a total of 142,741 unsold bottles of counterfeit perfume were known to have been in his possession. From this, it was deduced that the appellant had sold “a minimum of 218,334 bottles of counterfeit perfume” within the relevant period. On the basis that a genuine bottle of perfume sold for approximately £40, DC Whittleston calculated a benefit of £8,733,360 (i.e. 218,334 @ £40 each.) This might have been treated as a directly calculated benefit under
section 71
(1A). The prosecution in fact treated it as property transferred to the appellant under section 72AA(4)(a)(ii).
37.
The total of the cash, the lodgement in banks and the calculated sale proceeds of the counterfeit perfume was £9,121,899.38.
38.
DC Whittleston also made a very detailed investigation of the appellant’s expenditure during the relevant period. This was under 18 headings amounting to £810,698.14. This was expenditure of the appellant since the beginning of the relevant period within section 72AA(4)(b). Seven of the 18 headings broadly related to expenditure on the production of counterfeit perfume. The expenditure on these 7 items totalled £576,442.18, including just over £400,000 for the purchase of essences and empty perfume bottles and £25,755 for shipping of consignments.
39.
DC Whittleston then made a calculation of the appellant’s “minimum known realisable assets”. This was initially subject to a substantial miscalculation of the value of some shares held at Banco Santander. After correction of this error, the total was £655,627.96. The largest component of this was the value of the equity in the appellant’s home in Leeds.
The judge’s ruling
40.
In his ruling of 17
th
December 2002, the judge related the procedural history of the confiscation proceedings in explaining why he had refused a further adjournment. We have set this history out earlier in this judgment. He had heard evidence from DC Whittleston. The appellant had chosen not to call any evidence. The judge referred to the statutory assumptions. He had no evidence to contradict that of DC Whittleston.
41.
It seemed to the judge that there were really only two issues. The first issue related to the calculated income from the sale of bottles of perfume. The appellant was not in a position to challenge the number of bottles sold (218,334). But he did challenge the price per bottle. The prosecution had taken £40 as the full market price of a bottle of genuine perfume. The price at which the appellant sold his counterfeit perfume was not this. The judge said that various hand written documents found by the police were likely to produce greater inaccuracy, but might suggest a figure of £4 per bottle. There was said to be a market price of £15 per bottle. The appellant had suggested a figure which the judge gave as £2.50 to £3.50 in his Proposed Basis of Plea. Other evidence might suggest a figure of £10 per bottle.
42.
The judge concluded on the material before him that the appropriate figure was £5 per bottle. He had regard to the broad picture that the appellant was selling these items in bulk in a less than prestigious market place. This decision reduced the calculated minimum amount for the sale of counterfeit perfume to £1,091,670. This was the only reduction which the judge made from the prosecution figures. The reduced amount, with the other amounts for cash, lodgements in banks and expenditure produced the amount for which the confiscation order was made.
43.
The second issue related to what was termed “double accounting”. Mr Hatton had submitted on behalf of the appellant that, since the appellant had established no other source of income than his criminal conduct, his income and his expenditure were the same. To aggregate them was counting the same thing twice. The submission seems to have been put, with reference to
section 71AA(5)
(c) of
the 1988 Act
on the basis that aggregation would result in a serious risk of injustice.
44.
The judge was unable to say that aggregation would result in a serious risk of injustice. The appellant had been less than forthcoming in disclosing his financial position. He had repeatedly failed to comply with directions of the court relating to his financial position and had not put any evidence before the court to contradict the position arrived at by the application of the assumptions.
45.
The judge then considered the amount which might be realised. He noticed that DC Whittleston had expressed the firm belief that the appellant had considerable undisclosed assets, especially real estate, in foreign jurisdictions. DC Whittleston had referred to recovered documents said to support this and to what appeared to DC Whittleston to be a bank code and a PIN number on paper sellotaped to the underside of a drawer at the appellant’s home. The judge regarded these as realistic suspicions in relation to the appellant’s failure to disclose his entire financial assets. An exchange of correspondence between the appellant and an unknown person contained a clear suggestion that the appellant had acquired property in Spain which it had not been possible to trace. The judge concluded that the appellant had failed to satisfy him that the amount that might be realised was less than the amount of his benefit. The judge accordingly made an unreduced confiscation order of the amount which he had determined to be the benefit.
Grounds of appeal and submissions
46.
Mr Nathan produced extended and, in some respects, diffuse amended grounds of appeal supported by a written skeleton argument, but he only pursued some of these grounds. We deal only with those grounds which he did pursue. His main general submissions were:
a)
that the amount of the confiscation order was unjustly large; and
b)
that practical justice did not require a confiscation order greater than the amount of the appellant’s identified realisable assets, which would in any event require him to sell his home.
As to (b), the judge and this court are obliged to apply the statutory provisions. Beyond that, palm tree practical justice has no place.
47.
The particular grounds of appeal which Mr Nathan pursued are that the judge’s decisions relating to
(a) the sale price of a bottle of perfume;
(b) double accounting;
(c) the appellant’s realisable assets;
(d) the term of imprisonment to be served in default of payment; and
(e) costs
were wrong. As to (a) to (c), Mr Nathan did not ask the court to take account of evidence which was not before the judge. But he submitted that there was no perfect evidential answer and that the court should do its best on the evidence before it. We do not consider that this properly characterises the task of this court. We are not the first instance court. Absent fresh evidence, which Mr Nathan does not seek to produce, this court’s task is to consider the grounds of appeal to determine whether the judge’s decision was in any respect wrong in law or in fact. Insofar as this may be regarded as an appeal against sentence, and insofar as the provisions of
the 1988 Act
provide for judicial discretion, it may also be for this court to determine whether the judge’s exercise of discretion was wrong in principle or manifestly excessive. But this is really no more than to re-express in different words the provisions of section 72AA(5)(c).
Sale price of perfume
48.
Mr Nathan submitted that the judge was wrong to determine a price greater than £2.75 to £3, as in the Proposed Basis of Plea. The prosecution evidence only referred to £40 per bottle, which was plainly wrong. The evidence given in September 2002 went no further than that of a Trading Standards Officer, Ruth Taylor, who produced a schedule to indicate that the street market value in England was between £10 and £15. The appellant’s case was that much of the perfume had been sold abroad at much lesser prices, but there was no evidence of this.
49.
Mr Nathan said that, at the hearing on 16
th
December 2002, the prosecution produced hand written documents out of the blue, when the appellant was unrepresented and unable properly to deal with them. We understand that the documents were from exhibits in the appellant’s trial, although they had not featured in DC Whittleston’s statement. The prosecution claimed that they indicated prices at which the perfume had been sold. Mr Nathan showed us some of them, submitting that some of these did not indicate prices for which the prosecution were contending; or that others could be dated to 1991 or 1994, outside the relevant period. Mr Nathan said that these documents should not have been taken as persuasive evidence of prices in excess of the £2.75 to £3 for which the appellant contended. There were documents showing that substantial sales were made at or about £3 per bottle.
50.
Mr Kearl submits that the judge’s figure of £5 per bottle was entirely supportable on the evidence. Ruth Taylor’s material had been part of the original prosecution case summary. Mr Hatton had sought to explain some of the documents, including document 1419, which does appear to show prices for various counterfeit brands between £3.25 and £4 (except for Coco Channel at £5.10). Mr Kearl accepted that some of the documents suggested a figure of the order of £3 per bottle and that some of them appear to date from 1991 or 1994. That was some embarrassment. But he was not embarrassed to find a 1991 diary entry apparently showing prices between £4.25 and £5.50, when these were likely to have been greater at a later date.
51.
Insofar as the appellant complains that the prosecution attempted to derive inaccurate information from documents which were sprung on him, the judge was not misled by this. He said that the various handwritten documents were more likely to produce greater inaccuracy. As to document 1419, he read it broadly in the way suggested by Mr Hatton (and by Mr Nathan before us) as suggesting a figure of £4 per bottle, and not as representing greater figures originally suggested by the prosecution. He noted Ruth Taylor’s evidence.
52.
In our judgment, the judge was fully entitled on the evidence before him to determine a price of £5 per bottle. For this amount, he did not need to resort to
section 73A(5)
to draw inferences. The prosecution had called evidence which might have established an amount greater than £5. The appellant had called none. We reject this ground of appeal.
Double accounting
53.
Mr Nathan’s essential submission was that the judge was wrong to aggregate the appellant’s calculated income from the sale of perfume with his cash, the lodgements in banks and his expenditure. The probability was that income from the sales was, for instance, the same money which was lodged with Banco Santander; and that, since the appellant had no other income, income from sales was the same money as that which financed expenditure on the production of bottles of perfume. The calculation of benefit should not have taken this same money twice. Precisely how much double accounting there was could not be stated. But there plainly was some double counting which the court should in justice eliminate as best it might.
54.
Mr Nathan put this submission in a number of ways with reference to
the 1988 Act
. First, he said that the income from sales of perfume was a direct benefit determined under
section 71
(1A). There was no need or warrant to resort to
section 72AA
. Second, he said that the court has a discretion under section 72AA(3) whether to make assumptions and that the judge was wrong to exercise the discretion to do so in this case. Third, he said that there would be serious injustice within section 72AA(5)(c) if the assumptions were applied without modification to eliminate double accounting. Fourth, he submitted that the assumptions in relation to particular property or expenditure were incorrect in the appellant’s case under section 72AA(5)(a).
55.
We do not consider that the judge was wrong to proceed by way of assumptions under
section 72AA
. The conditions for the application of the section were fulfilled. The prosecution were entitled to seek to bring the income from the sale of perfume within the section 72AA(4)(a)(ii) as a route to inviting the judge to determine the appellant’s benefit under
section 71
(1A), although an assumption was scarcely necessary here, since the appellant did not contend that this income was legitimate. Even if this element of the determination had been made directly under
section 71
(1A), that did not prevent the court from making statutory assumptions in relation to other property or expenditure. Since the appellant had no legitimate income, the assumptions on the face of it applied to all his expenditure within the relevant period, and also to the cash and the bank lodgements.
56.
We do, however, accept that it was in principle open to the appellant to contend, for instance, that some or all of the cash or the money lodged with Banco Santander or that some or all of the expenditure probably derived directly from the sale of the 218,334 bottles of perfume at £5 per bottle, and therefore represented the same money. To the extent that the court was persuaded on the evidence that this was probably so, it could then decline to make the statutory assumption in relation to it under section 72AA(5)(c), if satisfied that otherwise there would be serious injustice. The burden was on the appellant to establish this. The question for the judge was whether he discharged this burden. The appellant was in difficulties in trying to do so, when he had not given or called evidence. He was also at risk of adverse inferences under
section 73A(5)
.
57.
Mr Kearl reminds us that this is and is intended to be draconian legislation. He accepts the possibility that there might be some double counting here. The prosecution do not know whether any property or expenditure did or did not represent the same money as the income from the sale of 218,334 bottles of perfume. The only person who knows where the money came from and went is the appellant. He chose not to give evidence, thus protecting himself, as he was entitled to do, from cross-examination.
58.
The appellant, through Mr Nathan, in effect attempted to persuade the court that the income from the sale of the 218,334 bottles of perfume represented the appellant’s entire benefit from criminal activity. Mr Kearl submitted that this was not so. Counterfeit perfume was the subject of only one of the three counts of the indictment to which he pleaded guilty.
Section 72AA
had the effect of enlarging the potential compass of relevant criminal conduct beyond the offences to which he pleaded guilty. The prosecution evidence explicitly put the 218,334 bottles as a minimum. This approximated to the number in the appellant’s unsupported Proposed Basis of Plea, but Mr Kearl referred to a Mr Corley as having stated that he had received 3 to 400,000 bottles from the appellant in the previous five years.
59.
In our judgment, the appellant’s double accounting case rests on a premise which he did not attempt to establish by evidence, that is that the income from the sale of the 218,334 bottles was all or most of his benefit from relevant criminal activity during the relevant period. It was not on any view his entire benefit. It may not have been his entire benefit by a very large margin. As Mr Kearl said, only he could tell, and he chose not to try to do so. The judge would have been speculating if he had concluded that there was double accounting and, if so, by how much. Speculation of this kind from assertions unsupported by evidence does not, in our view, discharge in this case the burden of proof which was on the defendant. In these circumstances, we agree with Mr Kearl that the product of the assumptions should not be reduced. The judge was entitled to conclude that there was no serious risk of injustice in applying the assumptions in full. He had no secure evidential basis for concluding otherwise. We reject this ground of appeal.
The appellant’s realisable assets
60.
Mr Nathan accepts that the burden is on the appellant to show that his realisable assets are less than the determined benefit. He submitted that, where a person has been the subject of two substantial investigations for confiscation purposes, the court was entitled to find that his discovered assets represent his entire realisable assets. What has been unearthed by the prosecution is likely to be right, unless there is some compelling reason to reach a different conclusion.
61.
Mr Kearl submitted that the judge was entitled to reach the conclusion that he did. The realisable assets which the prosecution unearthed were stated to be the minimum. There were proper grounds for suspicion that the appellant had other property in Spain and at least one undisclosed bank account.
62.
In our judgment, the appellant simply did not attempt to discharge the burden on him to show that the disclosed assets were his only realisable assets, or that his true realisable assets were less than the determined benefit. He was wide open here to adverse inferences from his failure to give evidence and under
section 73A(5)
. But in truth inferences were unnecessary. There was no evidential basis on which the judge could have concluded that his realisable assets were less than the determined benefit. We reject this ground of appeal.
Individual items
63.
Mr Nathan made short submissions challenging some of the individual items which made up the total for expenditure of £810,698.14.
64.
Purchase of empty perfume bottles
. The calculated amount was £163,867.02. This was the product of 154,956 empty bottles which a Mr McLuckie did not supply at £10,575 per 10,000. Mr McLuckie is a director of Cheshire Services (UK) Limited, the company that supplied the 218,334 bottles which feature earlier in this judgment. The price per 10,000 came from an invoice dated 16
th
December 1998 from Jean Cristian for “Blank bottles sold as clearance” for which the purchaser paid cash. The invoice was produced by Mr Coleman of Jean Cristian Perfumes Limited, who stated that he had supplied bottles to the appellant on four or five occasions over a two year period from December 1998. The appellant historically challenged the information from Mr McLuckie, but Mr Nathan did not persist in a contention that he should have been called to be cross-examined. It was suggested that Mr Coleman’s statement was inadmissible. Mr Nathan’s main point was that the price should have been no greater than 31p per bottle – this derived from a document exhibited by the prosecution. There was cross-examination indicating that the 31p per bottle was not the only cost component. In our view, the prosecution and the judge were entitled to proceed on the higher price substantiated by the Jean Cristian invoice in the absence of any evidence from the appellant.
65.
Shipping of Consignments
. The calculated amount was £25,755.73. Of this, £1,002.00 related to shipments by Hellman Worldwide Logistics. The consignee was Priest & Co at the appellant’s address. Mr Nathan’s point appears to be that there was no evidence that the costs were paid by the consignee. Other deliveries had been arranged by Mr Corley from Spain. Mr Kearl points out that the Hellman invoices were addressed to Priest & Co and payment was made in England. In the absence of evidence from the appellant, we consider that the judge was entitled to conclude that the appellant paid these costs.
66.
Counterfeit compact discs
. These were recovered from the three industrial units when the appellant was arrested. The calculated amount was £16,146.30. The appellant did not accept that these items were his. The count on the indictment in relation to them was not proceeded with, it being left on the file. The prosecution were entitled to include this item of expenditure under section 72AA(4)(b). The compact discs came within section 72AA(6) as the product of relevant criminal conduct, notwithstanding that the charge in relation to them remained unadjudicated. The appellant did not give evidence to establish his case.
67.
Purchase of jewellery, paintings and antiques
. The calculated total was £25,543.00. The appellant’s case was that a clock, a statue and perhaps one or more paintings were acquired outside the relevant period. There were some auction documents indicating this as a possibility, but the appellant did not give evidence to substantiate his case.
Costs
68.
Mr Nathan submits that a costs order should not be made where the confiscation order will deprive an appellant of his entire realisable assets. We accept the principle, but we have no basis for concluding that it would apply in the appellant’s case. Our reasons are the same as those under the ground of appeal relating to the appellant’s realisable assets. We reject this ground of appeal.
Period of imprisonment in default of payment
69.
We accept that the 10 year default period determined by the judge was on the erroneous basis that 10 years is a mandatory maximum for the amount of this confiscation order. We shall reduce the period below 10 years to a period which we will determine after the appellant has had the opportunity, through junior counsel, of making short submissions in the light of the rest of this judgment. We are prepared to determine this question on written submissions without a substantive oral hearing, if the appellant is content for us so to proceed. Our provisional view is that the period should exceed 5 years.
Conclusion
70.
We shall therefore allow the appeal in relation to the default period and substitute a lesser period than 10 years after receiving submissions after this judgment has been handed down. Otherwise this appeal is dismissed for the reasons given in this judgment.
-----------------------
LORD JUSTICE MAY: A matter arises in Priestley, does it not?
MR BUELIANAN: My Lord, it does, in relation to the period of 10 years' imprisonment in default.
LORD JUSTICE MAY: I have read Mr Nathan's very helpful short further submissions on that subject. As you know the constitution of the court currently sitting is not the constitution which heard the appeal and my present view is that it is not possible for me alone to determine this question of the default period, without at least consulting the other two members of the constitution, because Mr Nathan raises a point, if not two, which they have not considered, I can tell you that for the moment, and which it is appropriate that they should before we as a constitution decide the matter. Is there any other solution than that it should go over?
MR BUELIANAN: My Lord, I entirely agree with my Lord.
LORD JUSTICE MAY: I am afraid that is the case. When that has been done, is it your view that it is necessary to have another oral hearing or would the appellant be content if we communicated a decision in writing?
MR BUELIANAN: I am sure he would. I have spoken to Mr Nathan who has indicated that he does not wish to add any oral argument to the submissions that the court already have.
LORD JUSTICE MAY: In that case what I will do is I will consult with the other two members of the court. I will discuss with them not only generality but this submission that is put before us and we will communicate a decision. It will have to be given in open court but there is no need for attendance unless you actually want to. Very well. Does anything else arise?
MR BUELIANAN: No, thank you. | {"ConvCourtName": ["Crown Court at Bradford"], "ConvictPleaDate": ["16th April 2002"], "ConvictOffence": ["conspiracy to sell or distribute goods"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Bradford"], "Sentence": ["18 months imprisonment on count 2, 9 months imprisonment concurrent on count 5, and 4 months imprisonment concurrent on count 11.", "total sentence of imprisonment was thus 18 months."], "SentServe": ["concurrent"], "WhatAncillary": ["confiscation order"], "OffSex": ["he"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["appellant’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": ["evidence by DC Whittleston"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["6 previous convictions", "loss of millions of pounds", "major role in the operation"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["APPELLANT"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["amount of the confiscation order"], "AppealGround": ["(e) costs", "(d) the term of imprisonment", "judge’s decisions relating to (a) the sale price", "(b) double accounting;", "confiscation order was unjustly large", "(c) the appellant’s realisable assets;"], "SentGuideWhich": ["section 73 of the Criminal Justice Act 1988", "section 92(1)(b) of the Trade Marks Act 1994.", "section 1(1) of the Criminal Law Act 1977.", "Criminal Justice Act 1988"], "AppealOutcome": ["allow the appeal in relation to the default period"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["period determined by the judge was on the erroneous basis that 10 years is a mandatory maximum"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Crown Court At Bradford"], "ConvictPleaDate": ["2002-04-16"], "ConvictOffence": ["conspiracy to sell or distribute goods"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Bradford"], "Sentence": ["total sentence of imprisonment was thus 18 months.", "18 months imprisonment on count 2, 9 months imprisonment concurrent on count 5, and 4 months imprisonment concurrent on count 11."], "SentServe": ["Concurrent"], "WhatAncillary": ["confiscation order"], "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": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["6 previous convictions", "major role in the operation", "loss of millions of pounds"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["Don't know"], "AppealAgainst": ["Sentence (is unduly excessive)"], "AppealGround": ["(e) costs", "(d) the term of imprisonment", "(c) the appellant’s realisable assets;", "(b) double accounting;", "judge’s decisions relating to (a) the sale price", "confiscation order was unjustly large"], "SentGuideWhich": ["section 73 of the Criminal Justice Act 1988", "Criminal Justice Act 1988", "section 92(1)(b) of the Trade Marks Act 1994.", "section 1(1) of the Criminal Law Act 1977."], "AppealOutcome": ["allow the appeal in relation to the default period"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["period determined by the judge was on the erroneous basis that 10 years is a mandatory maximum"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 12 |
No:
2015/4441/A3
Neutral Citation Number:
[2016] EWCA Crim 599
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Friday, 15 April 2016
B e f o r e
:
LORD JUSTICE McCOMBE
MR JUSTICE IRWIN
THE RECORDER OF MIDDLESBROUGH
HIS HONOUR JUDGE BOURNE-ARTON QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - -
R E G I N A
V
TERRY GUNN
- - - - - - - - - - - - - - - - - - -
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 C Aspinall
appeared on behalf of the
Appellant
The
Crown
did not appear and was not represented
- - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE McCOMBE: On 3rd August 2015 in the Crown Court at Derby before His Honour Judge Mooncey, on re-arraignment on the day fixed for his trial, the appellant changed his pleas of not guilty to four offences of rape charged in the indictment to pleas of guilty. On a fifth charge of the same offence it was ordered that that should remain on the file on the usual terms. On 3rd September 2015 he was sentenced for those offences by His Honour Judge Rafferty QC to concurrent sentences of nine years on three of the counts and on the fourth count to an extended sentence of 14 years, comprising a custodial term of nine years with an extended licence period of five years, to be served again concurrently with the other sentences. That gave rise to a total extended sentence of 14 years with a custodial term of nine years and an extension period of five years. He now appeals against that sentence by leave of the single judge.
2.
The facts of the case were these.
Count 1
3.
On the evening of 26th January 2015 the appellant and the complainant had an argument about a meal that she had cooked. Afterwards they sat down in front of the television. He pulled his trousers down and pushed his penis towards her face asking her to suck it. She said "no". He was laughing and started to hit her in the face with it. He masturbated in front of her. She put a blanket over her face to try to prevent his approaches. He pulled her arms apart to get her face out of the blanket and proceeded to lick and kiss her. He continued to masturbate until ejaculation.
4.
She thought that that was the end of it but he then proceeded to ask her for a "blow-out". She went outside for some thinking time and had a cigarette in her car. She texted him to ask if he could put her uniform for work outside so that she could get dressed elsewhere and go to her father's to stay overnight. (Both the complainant and the appellant were student nurses at the time, aged 20. They had been in a relationship for about 18 months and were living together, although their relationship was in a state of hiatus.)
5.
He refused to put the uniform out, so she returned to the flat. He would not leave her alone. He pulled her trousers down and proceeded to molest her orally. She said she did not want it, she just wanted to go to bed. In response he said "Fine, I'll fuck you". He got on top of her and began having intercourse with her against her will. She cried and he said: "It's nearly over" and proceeded to ejaculation.
Counts 3 and 4
6.
The appellant took a knife to open the bathroom door into which the complainant had locked herself after the first incident which we have related. He said he was sorry and would not do it again. They went back to bed and the next morning she did not feel she could get to her work because she was still in a state of some shock over the event the night before. She rang into work to say she was unfit. The appellant woke up, was in a bad mood and said: "Can you do me a favour, please? Can you give me a blow job, please?" She said "No". He reacted by telling her in abusive terms to shut up. He raised his fists at her and she began crying. She was sitting on the floor. He picked her up and put her on the bed and repeatedly told her to shut up as he did not want the neighbours to hear her being upset. He proceeded to give her oral sex, in spite of her protestations. He pushed her onto the bed and she felt she had no choice but to appease him by doing what he wanted by way of oral sex. Before that he inserted his penis again into her vagina. She said: "If you loved me you would not do this to me." Again he told her to shut up. He ejaculated and when she thought this was all over, as she put it he put his penis into her throat and she said he was making her gag as he shoved his penis far down towards her throat. He stripped her of her clothes, prior to raping her vaginally and orally. He stopped but at that stage he refused to let her out of the house.
7.
She said she needed a cigarette and on that pretext she got dressed and got into her car and drove around the corner. She realised then that she had to get to her work on the following morning because if she did not she might fail an assessment part of her course, so she had to try to retrieve her nurse's uniform and other related articles from the flat. She texted him back to say that she needed her belongings and she would go and stay at her father's. He texted back to her saying "You don't have to talk about it".
Count 5
8.
After about an hour the complainant arrived at the flat, went into the bedroom to collect her uniform and security ID. He followed her and pinned her to the bed. He said he wanted her to affirm her love for him. She remained frightened that he would hurt her so said that if she had sex with him would he then let her go. He said yes and proceeded to penetrate her. He ejaculated. She collected her belongings and left. She never went back to the flat and five days later she reported the matter to the police.
9.
In interview after his arrest the appellant said she had not freely given her consent and expressed remorse. He knew that she had been scared. He also texted the complainant on 27th January to apologise and made abusive comments about himself saying he deserved a lonely life and hoped that she had a good life.
10.
There is a victim personal statement which tells, not unsurprisingly, of the graphic and unpleasant effect that all this had on this complainant.
11.
The appellant is now 22 years old. He was 21 at the date of sentence. He had no previous convictions. The pre-sentence report informed the court that the appellant said that once this course of conduct had started he found that he could not stop what he was doing. He saw this as what he called "make up sex" following an argument with the victim. It appears, as Mr Aspinall has explained to us and as appears in the papers, that it was their habit after arguments to have intercourse and to some extent he thought that the same was happening here, although obviously it went far beyond that.
12.
The reporting probation officer considered that the appellant had some understanding of the experiences suffered by the victim in the course of the offences, but that this was somewhat superficial. It was stated in the report that he was sexually preoccupied, placing his own sexual needs and desires above anything else or anyone else, but it was thought not being entirely honest about the nature of this preoccupation. The officer considered that the sustained incident involving threats of violence on a vulnerable victim was likely to have caused significant psychological harm to the victim. The appellant was assessed as posing a medium risk of offending "generally" but it was stated that "until Mr Gunn has addressed the factors linked to this offending I assess him as high risk of further offending using both static and actuarial factors." A little later in the report it was said that he behaved in a manipulatory manner and there was a clear level of recklessness and risk-taking behaviour without thought for the consequences. In a further passage the report's author stated the appellant displayed limited remorse and appeared to advocate the use of sexual violence as a means of self-gratification in sex. He was at that stage in the report assessed as posing a high risk of re-offending based upon the assessment at interview, coupled with his social and offending history -- a passage with which Mr Aspinall took issue in his advice being, he submitted, not entirely based upon the true history of the appellant's background. In paragraph 4.2 of the report the officer concluded as follows:
"It's my assessment at this time that until Mr Gunn gains a clear understanding of the circumstances that have lead to his offending behaviour, learns to identify situations in which he may pose a risk to others and develop strategies for the future which will reduce his risk, his risk of offending will remain as high. I would also assess Mr Gunn as posing a high risk of serious harm towards both [the complainant] and future intimate partners, the nature of this harm being of a sexual and emotionally distressing nature."
13.
In passing sentence, the learned judge referred to the remorse expressed at the time of sentence, no doubt referring to a letter to that effect written by the appellant and which we have seen and considered. He also mentioned the appellant's past good character, but noted the comments in the pre-sentence report about an unhealthy preoccupation on the part of the appellant with his own sexual gratification. He expressed the view that the repeated conduct to this victim caused great concern to his present risk and in the foreseeable future. The judge gave a summary of the facts of the case and to the deliberate prolongation of the conduct that was not wanted by the victim, much in the same terms as we have sought to relate earlier in this judgment. This was conduct for his own gratification in which the appellant had exercised power over the complainant and by time of the rape in count 4 the judge took the view that the victim remained in fear of him because of additional threats to hit her.
14.
The appellant, said the judge, had shown no love or care for the victim and had enjoyed every single moment of the incident. He referred to the victim impact statement in which the complainant spoke of being damaged not just in the short term but in the long term. The judge concluded that the victim must have suffered severe psychological harm in all the circumstances. The repeated violations had, he said, cumulatively added to her degradation and humiliation.
15.
The judge then proceeded to consider the question of whether the appellant should be regarded as a dangerous offender for sentencing purposes. He referred to a request by counsel that sentencing should be adjourned for the preparation of a psychiatric report in view of the judge's mention of the possibility of such a sentence as a dangerous offender in the course of argument before him. The judge considered that such a report was not required, having regard to the report prepared by the experienced probation officer which we have endeavoured to summarise. The judge took the view that the answer to the question of whether the appellant presented the relevant danger to members of the public was clear and that an extended sentence was appropriate.
16.
Referring to the pleas of guilty, the judge said that if the court had been satisfied that the delay in entering the pleas had been all the appellant's own doing he would have afforded 10 per cent credit for those pleas. As it was he was prepared to apply a 25 per cent credit. He proceeded to pass the sentences to which we have referred. We will perhaps remark immediately that the present 25 per cent credit was to an extent generous.
17.
In the present appeal, Mr Aspinall in his helpful submissions has argued that the sentence was manifestly excessive. He submits that the judge was wrong not to have acceded to the request for an adjournment for the preparation of a psychiatric report and he argues that the finding of dangerousness was based upon inadequate evidence in the pre-sentence report. Although in the written grounds Mr Aspinall submitted that the judge adopted too high a starting point for the purposes of the sentencing guidelines, his argument this morning accepts that the determinate term of the sentence, a nine year period of custody, in all the circumstances was not too high. He submits that the judge should have afforded a full one-third credit for the guilty plea.
18.
Returning to that particular point, this plea was entered on the day fixed for trial. The appellant sought to blame his previous solicitors for advising him incorrectly. The judge declined to go down that route, as do we. The appellant knew from the outset what he had done. The victim would no doubt have expected until a very late stage that she would have to give oral evidence. The discount of 25 per cent given by the judge was in our view generous to the point of leniency.
19.
So far as the principal grounds are concerned, we turn to the question of the extended sentence which has been the thrust of Mr Aspinall's cogent submissions to us this morning. He submits that the learned judge should have acceded to his application for an adjournment and indeed has presented to us this morning a report from a consultant psychiatrist on Mr Gunn's medical condition, which was not of course before the learned judge.
20.
The thrust of the report appears in paragraph 15 of the psychiatrist's opinion. It is not necessary to repeat a great deal of that but the psychiatrist refers to a number of risk reducing factors in this appellant's case. There was no concern in relation to drug or alcohol misuse. He was a young man, intelligent as well, capable of benefiting from various therapies on offer and while being young may increase the statistical risk of future offences, given greater life expectancy (that no doubt he thought was a rather simplistic approach) it also means he has time to change. The doctor concluded that there was no evidence of mental disorder, nor was he mentally ill at the time of the relevant offences, there was no impairment of intelligence and there was no indication from the history that he had any personality disorder that the doctor could detect.
21.
Standing back from those submissions, it appears to us that it might on reflection have been helpful had the learned judge acceded to the course that Mr Aspinall proposed in seeking a psychiatric report which could only have assisted an understanding of the important question of whether an extended sentence was indeed appropriate for this young man, given, as was conceded on all hands, a significant custodial sentence would be passed in which risk would be addressed and at which this young man could undergo suitable offender management courses and treatment. We note that the passage in the pre-sentence report, to which we have already referred, said that there was a risk until the appellant gained a clearer understanding of the circumstances of the offending. It seems to us that the psychiatric report that we now have might well have persuaded the judge that the lengthy custodial term that he envisaged in any event would be adequate to meet the risk of the public and also afford the necessary opportunity to the appellant to mend his ways.
22.
This was clearly an absolutely appalling set of offences. This poor woman was disgracefully degraded. He could not have expected anything other than the severest determinate sentence and we can well understand why the judge on perhaps limited material thought that he could be properly categorised as dangerous. We do not criticise the learned judge's finding in that respect, but we think, standing back from the matter, that this may have been one of those cases in which and indeed we find it is one of those cases in which it was not necessary to pass an extended sentence and to that extent the sentence passed was excessive. We propose to allow the appeal, to quash the extension period of five years that was imposed by the learned judge but conserving the nine year determinate sentence which the learned judge had in mind. To that extent the appeal is allowed. | {"ConvCourtName": ["Crown Court at Derby"], "ConvictPleaDate": ["3rd August 2015"], "ConvictOffence": ["rape"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleas of guilty"], "PleaPoint": ["on re-arraignment"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Derby"], "Sentence": ["total extended sentence of 14 years with a custodial term of nine years and an extension period of five years"], "SentServe": ["concurrent sentences"], "WhatAncillary": ["data not available"], "OffSex": ["his"], "OffAgeOffence": ["aged 20"], "OffJobOffence": ["student nurses at the time"], "OffHomeOffence": ["living together"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["in a relationship"], "VictimType": ["her"], "VicNum": ["the complainant"], "VicSex": ["her"], "VicAgeOffence": ["aged 20"], "VicJobOffence": ["student nurses at the time"], "VicHomeOffence": ["living together"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["oral evidence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["high risk of re-offending"], "AggFactSent": ["severe psychological harm", "vulnerable victim", "repeated conduct"], "MitFactSent": ["remorse", "credit for those pleas", "appellant's past good character,"], "VicImpactStatement": ["victim personal statement"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against that sentence"], "AppealGround": ["the judge should have afforded a full one-third credit for the guilty plea.", "the judge adopted too high a starting point", "manifestly excessive"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["quash the extension period of five years that was imposed by the learned judge but conserving the nine year determinate sentence", "appeal is allowed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["it was not necessary to pass an extended sentence and to that extent the sentence passed was excessive"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Crown Court At Derby"], "ConvictPleaDate": ["2015-08-03"], "ConvictOffence": ["rape"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["on re-arraignment"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Derby"], "Sentence": ["total extended sentence of 14 years with a custodial term of nine years and an extension period of five years"], "SentServe": ["Concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["20"], "OffJobOffence": ["Student"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Female"], "VicAgeOffence": ["20"], "VicJobOffence": ["Student"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Victim testimony"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["High risk of reoffending"], "AggFactSent": ["severe psychological harm", "repeated conduct", "vulnerable victim"], "MitFactSent": ["credit for those pleas", "appellant's past good character,", "remorse"], "VicImpactStatement": ["Yes"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against that sentence"], "AppealGround": ["the judge should have afforded a full one-third credit for the guilty plea.", "the judge adopted too high a starting point", "manifestly excessive"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["quash the extension period of five years that was imposed by the learned judge but conserving the nine year determinate sentence", "appeal is allowed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["it was not necessary to pass an extended sentence and to that extent the sentence passed was excessive"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 35 |
Neutral Citation Number:
[2012] EWCA Crim 1785
Case No.
2011/04796/C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Friday 20 July 2012
B e f o r e:
LADY JUSTICE HALLETT DBE
MRS JUSTICE COX DBE
and
MR JUSTICE HADDON-CAVE
- - - - - - - - - - - - - - - -
R E G I N A
- v -
STEPHEN ANDERSON
- - - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone No: 020 7404 1400; Fax No 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -
Mr M D Barlow
appeared on behalf of the Applicant
- - - - - - - - - - - - - - - -
Judgment
LADY JUSTICE HALLETT:
1. On 2 August 1995 at the Luton Crown Court before His Honour Judge Rodwell QC and a jury the applicant, who is now in his mid-sixties, was convicted by a majority of the jury of indecent assault on a male. He was sentenced to three years six months' imprisonment. His trial counsel advised against an appeal against conviction, but did advise an appeal against sentence which failed. He renewed his applications for an extension of time (approximately sixteen years), for leave to appeal against conviction, and for leave to call a witness (Professor Conway), after refusal by the single judge.
2. The reason for the delay of sixteen years since the trial in making this application is set out in a statement from the applicant's solicitor dated 8 August 2011. The applicant applied first to the Criminal Cases Review Commission and received a response in 2002. He approached his present solicitors in 2009. Professor Conway, upon whose report the applicant had intended to rely, agreed to act but could not provide a report until October 2010. Counsel (Mr Barlow) was instructed to analyse the material on 7 October 2010. For reasons that remain unexplained, his advice was not dated until 3 August 2011. Mr Barlow's solicitors have not attended this morning. Mr Barlow has attended pro bono. We have no further information from Mr Barlow or his solicitors as to why the various delays have occurred.
3. The facts are as follows. The complainant, to whom we shall refer as "C", was 9 years old and a new pupil at the Royal Caledonian boarding school. He was there from about September 1989 until at least 1992. The applicant was one of those responsible for C's pastoral care. One night C was crying in his bed and this fact was brought to the attention of the masters. C was taken into the applicant's room, where he fell asleep in a chair. He woke much later on the applicant's bed. When he woke he found himself on his side facing the window. He claimed that the applicant was behind him with his hand under his pyjamas, rubbing his penis and stroking his legs. He recognised the applicant from the smell of nicotine on his breath. C froze. After a while the applicant stopped and C was carried back to his own bed in the dormitory. The prosecution alleged that this behaviour happened more than once during the months of September, October and November 1989. Each time the applicant removed the complainant from his bed in the dormitory, and took him to the applicant's own room on the pretext of comforting him for home-sickness. Sometimes the assaults of which complaint was made consisted of rubbing C's bottom rather than touching his private parts. C could not remember how many times this occurred, but he specifically remembered one other occasion when he wore boxer shorts rather than pyjamas.
4. C complained to a Mr Weiner at the school. Mr Weiner told him to tell the padre. C also told his parents that he had been assaulted. The padre visited the family at home four or five days later and said that he had spoken to C. The purpose of his visit was to persuade the family that it would be in C's best interests if no fuss was made and the matter not reported to the police. He led them the family to believe that the applicant would be sacked. The headmaster did subsequently give the applicant notice, but the applicant insists that this was because of a personality clash rather than allegations of abuse. He left the school on 22 October 1989.
5. A man called Meredith, who had been the applicant's assistant and whom C also remembered, took over the applicant's job. A separate investigation (by a police officer looking into Meredith’s behaviour) uncovered C’s complaint.
6. C made a statement in October 1994 and the applicant was arrested in November 1994. In interview he denied the allegations, although he accepted that there were circumstances in which C had been alone in his room at night. He asserted that nothing untoward had ever happened with any other child. However, the prosecution called another pupil, "A", who claimed at trial that he had also been invited to share the applicant's bed when he had gone to the applicant complaining of feeling unwell.
7. At trial the applicant gave evidence in accordance with his interview. He could not rely upon the evidence of the headmaster Mr Pope and his deputy, Mr Watts, because they were themselves standing trial the following year, in June 1996, on charges of failing to act on concerns and to prevent abuse at the school. They were acquitted. However, both C and his parents gave evidence at their trial.
8. This application was launched on the basis that the first ground of appeal would be fresh evidence from Professor Conway and from the 1996 trial of Pope and Watts. However, somewhat belatedly Mr Barlow decided to abandon his reliance upon the evidence of Professor Conway.
9. Although not now relevant to this appeal we feel we should mention that this is not the first time that Mr Barlow and his instructing solicitors have attempted to overturn a conviction on the basis of Professor Conway's evidence as to the reliability of childhood memories. His reports are controversial. Only once to our knowledge, in an "unusual" case, has this court accepted his evidence (see
R v JH and R v TG
[2006] 1 Cr App R 10
). However, the court was unaware at that time of significant criticisms of Professor Conway’s methodology which have led to the court’s declining to receive his evidence (see
R v S
[2006] EWCA Crim 1404
,
R v E
[2009] EWCA Crim 1370
and
R v H
[2011] EWCA Crim 2344
). In the light of those decisions, we have our doubts as to whether
JH and TG
, which was restricted very much to a specific set of facts, would be decided the same way today. Professor Conway may wish to consider amending his CV in which, we note, he mentions only
R v JH and r v TG
.
10. We turn to the grounds of appeal as now advanced which focus on the 1996 trial. The first hurdle in the applicant’s path is providing a satisfactory explanation for the 16 years delay in putting the so-called fresh evidence forward. In truth no real attempt was made. Nothing daunted, Mr Barlow pointed to what he claimed was a catalogue of "changes in the evidence" of C and his parents about the alleged abuse and the detail of C’s complaints.
11. The remaining three grounds of appeal consist of criticisms of the judge's summing-up. Mr Barlow accepted that at the time of the trial the judge's directions were entirely appropriate on the evidence as given. The sole basis for his criticism was that in the light of the evidence at the subsequent trial, the directions were “wrong”: a novel proposition.
12. Ground 2 relates to the direction given by the judge on what was alleged to be a specimen count. Mr Barlow submitted that this alone renders the conviction unsafe. At the applicant's trial the Crown alleged indecent assault on at least two separate occasions. On his reading of the complainant’s evidence to the Pope and Watts jury, there was only one actual “indecent assault”, Mr Barlow argued, therefore, that the judge’s direction on specimen counts was otiose and dangerous.
13. Ground 3 is a criticism of the judge's direction to the jury on the recent complaint evidence, which he accepts, was accurate at the time. In the light of the material from the second trial, Mr Barlow suggested the recent complaint was not one of a sexual nature. C complained of one incident only, he did not complain of his penis being touched until much later. His recent complaint was simply that he had been "touched down below". On that basis, Mr Barlow submitted, there was no evidence of fresh complaint and no need for a direction.
14. Finally, Mr Barlow referred us to the evidence of A. In the course of his summing-up the judge directed the jury:
"A's evidence was called and this is important evidence because if you accept this to be the truth it would indeed then lend confirmation to C's story of what happened to him. Let me tell you that the [applicant] disputes this in part."
Mr Barlow had originally intended to argue that this direction was plainly wrong and that the evidence was inadmissible. However, having seen what the single judge said in refusing leave, he changed his mind. He accepts now as he should have accepted all along, that the evidence was clearly admissible to rebut the defence that, despite many years caring for young boys, no-one else had ever complained. It was clear from the evidence of A that a complaint as to the applicant's behaviour was made. Nevertheless, under this head, Mr Barlow sought to argue that the judge failed to give the jury a full direction highlighting the “issues of contamination and/or collusion". This was said to be a serious non-direction which rendered the resulting conviction unsafe. Unfortunately, he was unable to put before us any evidence of collusion or contamination to justify the direction.
15. In summary, Mr Barlow claims, as he has claimed in other cases, that the applicant is a victim of a "miscarriage of justice" because the allegation was investigated and prosecuted when "the dangers of such historic investigations into care homes, schools and other youth organisations were not recognised". For those of us in practice at the time, this came as something of a generalisation.
16. In his very carefully crafted observations, the single judge, when refusing leave, said:
"There is no valid explanation of the delay. You cannot wait for many years to see if there is a change in attitudes or procedures and then -- substantially in reliance upon evidence of an expert (whose evidence has been of doubtful assistance in other cases and who has no knowledge other than of his reading of papers of the circumstances of your case) -- to seek to upset a verdict which was obtained in accordance with the proper trial procedures at the time. Even after you determined to try and mount an appeal, there has been delay in obtaining the evidence of the expert and the advice of counsel. I see no merit in your application and am satisfied that there is no basis for extending time. Nevertheless, in case there was a good basis for considering that your conviction was unsafe, I have spent several hours upon your papers and you do not begin to persuade me that you have any valid ground of appeal.
You rely principally upon the wish to call Professor Conway. I consider that much of his evidence would be inadmissible for reasons which the Court of Appeal have given in earlier cases when refusing permission to adduce his evidence; otherwise it is of marginal value. A jury can well understand from their own experience how a child's memory may be coloured. As to the evidence of [C], your complaints of inconsistency and the judge's inadequate summing-up are not made out on the material which I have read. The jury was well aware that there was a real issue as to the reliability of his memory and the extent to which he had said (to that point) inconsistent things.
This ground also lacks merit. You rely upon what you say are inconsistencies in his evidence at the later trial. These are more supposed than real. I fail to see how the conviction can be considered unsafe by the judge's giving a specimen count direction.
Evidence of complaint (ground 3): The judge gave a perfectly adequate direction in line with directions given at the time; your secondary submission that the evidence at the later trial undermined the direction given does not stand scrutiny. There is nothing in his evidence which (had it been given at your trial) would have made the judge's direction inappropriate.
Evidence of [A] (ground 4): As the respondent contends, it must be the case that this evidence was called to rebut the defence and the direction given was appropriate.
I should add this. As I have read into these papers, I have been able to see for myself what a strong case this was and you do not begin to mount an argument that the conviction was unsafe."
We agree. We, too, have spent many hours upon these papers and we have yet to see any hint of an arguable ground which can properly be advanced.
17. There seems to be an increasing trend for advocates who were not instructed at trial to scour a summing-up in an ancient case to look for possible failings. It should be remembered by those who indulge in minute forensic examination of a summing-up that the test for this court is safety of the conviction. It is highly unlikely that a conviction will be overturned sixteen years after the event on the basis that the judge directed the jury in a particular way, with the agreement of the parties and in accordance with proper and fair practice at the time, unless, of course, the directions were plainly wrong.
18. It is also highly unlikely, given the state of medical opinion that this court will receive the evidence of the kind put forward by Professor Conway in the near future. Yet, according to Mr Barlow’s solicitor, “substantial funding” has been obtained from the Legal Services Commission to advance this appeal. Mr Barlow cannot help us on what that money has been spent, save that part has been spent upon the report from Professor Conway. Any lawyer attempting to obtain public money with which to instruct experts has a duty to reveal to the funding authority decisions of the Court of Appeal Criminal Division which suggest such evidence may not be received.
19. For all those reasons we are satisfied that nothing has been put before us which, even arguably, would provide any grounds for concluding that the conviction is unsafe. The applications are refused.
____________________________ | {"ConvCourtName": ["Luton Crown Court"], "ConvictPleaDate": ["2 August 1995"], "ConvictOffence": ["indecent assault"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Luton Crown Court"], "Sentence": ["three years six months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["applicant would be sacked."], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["responsible for C's pastoral care"], "VictimType": ["a male."], "VicNum": ["a male"], "VicSex": ["a male"], "VicAgeOffence": ["9 years old"], "VicJobOffence": ["9 years old"], "VicHomeOffence": ["family at home"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["C and his parents gave evidence"], "DefEvidTypeTrial": ["he denied the allegations"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["data not available"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against conviction", "extension of time (approximately sixteen years)"], "AppealGround": ["Ground 3 is a criticism of the judge's direction to the jury on the recent complaint evidence", "Ground 2 relates to the direction given by the judge", "grounds of appeal consist of criticisms of the judge's summing-up.", "ground of appeal would be fresh evidence"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["The applications are refused."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we have yet to see any hint of an arguable ground which can properly be advanced"]} | {"ConvCourtName": ["Luton Crown Court"], "ConvictPleaDate": ["1995-08-02"], "ConvictOffence": ["indecent assault"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Luton Crown Court"], "Sentence": ["three years six months' imprisonment"], "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": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Male"], "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": ["data not available"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Other (e.g., application for extension of time to appeal)", "against conviction"], "AppealGround": ["Ground 3 is a criticism of the judge's direction to the jury on the recent complaint evidence", "Ground 2 relates to the direction given by the judge", "grounds of appeal consist of criticisms of the judge's summing-up.", "ground of appeal would be fresh evidence"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we have yet to see any hint of an arguable ground which can properly be advanced"]} | 28 |
Neutral Citation Number:
[2022] EWCA Crim 1470
Case No: 202103951 B2 & 202200435 B2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MANCHESTER MINSHULL STREET CROWN COURT
HER HONOUR JUDGE LANDALE
T20190791 & T20210703
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
8 November 2022
Before :
LADY JUSTICE CARR
MR JUSTICE CAVANAGH
and
HIS HONOUR JUDGE FLEWITT KC
- - - - - - - - - - - - - - - - - - - - -
Between :
EMMANUEL RICHARDS
Appellant
- and –
REX
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Ms Clare Ashcroft
(instructed by
Robert Lizar Solicitors
) for the
Appellant
Mr Gareth Roberts
for the
Respondent
Hearing date: 2 November 2022
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
This judgment was handed down at 10am on 8 November 2022 in Court 7 and released to the National Archives.
.............................
Lady Justice Carr :
The provisions of the
Sexual Offences (Amendment) Act 1992
apply to these offences. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with
s.3
of
the Act
.
Introduction
1.
We have before us an appeal against conviction and sentence by the appellant, who is now 43 years old. He was convicted on 17 November 2021 at Manchester Crown Court following trial before Her Honour Judge Landale (“the Judge”) and a jury of three counts of rape contrary to
s. 1(1)
of the
Sexual Offences Act 2003
(counts 1, 2 and 4), inflicting grievous bodily harm contrary to
s. 20
of
the Offences against the Person Act 1861
(count 5), assault occasioning actual bodily harm contrary to
s. 47
of
the Offences against the Person Act 1861
(count 6) and controlling or coercive behaviour in an intimate or family relationship, contrary to
s. 76(1)
and (11) of the
Serious Crime Act 2015
(count 8).
2.
The complainant on each count was the appellant’s former partner, whom we shall call “C”. The prosecution case was that the appellant, who was also known as “Tank”, had engaged in controlling and coercive behaviour such as smashing up C’s flat, making her hold drugs on his behalf, violence (threatened and actual), not allowing her to wear make-up, not allowing her to bathe or shower and preventing her from seeing her family. It also included not allowing her to have her own telephone or restricting the type of telephone that she had. Within the relationship he had assaulted her and raped her on several occasions.
3.
On 13 January 2022, the Judge sentenced the appellant as follows: 5 years’ imprisonment on count 1; 7 years’ imprisonment on count 2; an extended sentence of 18 years’ imprisonment on count 3, comprising a custodial term of 15 years and an extension period of 3 years; 3 years and 6 months’ imprisonment on count 5; 2 years’ imprisonment on each of counts 6 and 8. All sentences were ordered to run concurrently. Thus the overall sentence was one of 18 years’ imprisonment, comprising a custodial term of 15 years and an extension period of 3 years.
4.
A restraining order was imposed pursuant to
s. 360
of the
Sentencing Act 2020
. Having been convicted of an offence listed in Schedule 3 of the
Sexual Offences Act 2003
, the appellant was required to comply with the provisions of Part 2 of
the Act
(Notification to the police) for indefinite period.
5.
There are three grounds of appeal against conviction:
i)
The Judge was wrong to admit bad character evidence in the form of the appellant’s past convictions for sexual offences dating back 24 years;
ii)
There was demonstrable non-disclosure on the part of the police/prosecution;
iii)
There is fresh evidence, which we should admit under
s. 23
of the
Criminal Appeal Act 1968
(“
s. 23
”), which renders the convictions unsafe.
6.
Alternatively, if his convictions are upheld, the appellant challenges his sentence on the basis that the Judge failed to have sufficient regard to the principle of totality, resulting in a sentence that was manifestly excessive. There is no challenge to the Judge’s finding of dangerousness for the purpose of
s. 280
of the
Sentencing Act 2020
.
The facts
7.
The appellant, then aged 39, and C, then aged 19, met in February 2018. At some point they began a sexual relationship. In June 2019 C was admitted to hospital with a broken jaw. The appellant was arrested on 18 June 2019 and exercised his right to silence during interview. Initially, C did not support a prosecution. However, after disclosures relating to the appellant’s past convictions for sexual offences had been made to her under “Clare’s Law”, C provided a written statement stating that the appellant had broken her jaw by punching her to the face in anger. In December 2019 C made further disclosures against the appellant, now of rapes. The appellant denied all allegations.
8.
C gave evidence at trial through her ABE interview and in cross-examination. Her evidence was that she had started a relationship with the appellant after he had approached her on the street. Initially he told her he was 30 but she “googled” him and found his real age. She described the relationship from the start as “toxic” and that she was a bit scared but “he was lovely and seemed a nice guy”. He stayed with her from time to time until there was an argument. He came and went when he pleased. He would make her feel that she had put him in a mood and she would say sorry and beg him to come back. In cross-examination she said that she had decided that she would give him the benefit of the doubt despite what she knew of him; she knew that he had been in prison and was living in a bail hostel having been released for drug offences. She could hold her own with other people, just not with him. She accepted that she had not told the police of the sexual offences until December 2019. She said that this was because she had not understood that you could be raped in a relationship. She agreed that she had been given information about the appellant’s criminal history.
9.
On count 1, C’s evidence was that the appellant had demanded sex before he went out; she was on her period and she said that she didn’t want to but
“he said, 'It doesn't fucking matter. We've done it before.' I said, 'I don't wanna,' but he wouldn't listen. He took my pants down. I didn't try to stop him, because I was scared. He is three times my size. I didn't want to confront him”
. On count 2, she was asleep when intercourse had begun, and she woke to find that the appellant had already penetrated her vagina with his penis. She tried to push him away and asked him to leave. On count 3, after having been thrown to the floor at the bottom of the stairs where she hit her head, sexual intercourse took place upstairs whilst she was crying
.
10.
On count 5, C said that after the incident in count 3, C’s mother rang the appellant’s phone which he threw at her. He accused her of cheating and he
“smacked me, punched me, broke my jaw in three places, chased me round the bedroom. Blood was everywhere. My face was a mess. He took me to hospital. We stood outside for half an hour, deciding what to say. We said he did a handstand and he booted me in the mouth. I had pins and it was wired shut. I found out I was pregnant, but lost the baby."
C’s jaw required surgery which included the wiring up of her jaw.
11.
As for count 6, the appellant said that she had been at the appellant’s flat. He had dragged her out of the flat and left her by the front door where she had a fit. She had tried to ring her mother but he snatched the telephone, dragged her downstairs and strangled her. She told him she could not breathe and she had woken up with a black eye and went to hospital.
12.
In relation to count 8, C said that:
"One time, he chased me down the street with a brick and a bottle, asking for his drugs. He boiled the kettle and said if I wasn't quiet he'd pour it on me…He's smashed my flat up loads of times. He's threatened to kill me”.
13.
She said that he accused her of cheating on him and did not allow her to have a telephone:
“I couldn't wear certain stuff or make-up. He isolated me from everyone… He'd chase me in the flat with a machete… He accused me of washing off his dirty smell and called me names like slag, slut. He wouldn't let me clean the house. He gave me chlamydia. He stuck a note on my door, saying I was a slag and I had a new boyfriend”.
14.
The prosecution called evidence from C’s mother and sister. They said that C’s behaviour changed, becoming more distanced, and she was always nervous. Her telephone number was always changing and the appellant smashed her flat up on more than one occasion and threatened her. C made them aware of injuries she had received.
15.
The jury also heard evidence from a police officer to whom C had reported that the applicant had done “a handstand and he caught me with his foot. It was an accident." She wanted to be with the appellant and had been upset that the police had been called. There was evidence from a doctor to the effect the history given by C to the police did not meet the severity of the injury, being a displaced fracture to the jaw. The appellant’s behaviour had been very aggressive.
16.
The defence case was that the appellant’s previous convictions had been committed when he was a teenager, the majority had not been assaults against women and/or a partner and that he was a different person now. It was only after C had been told of his past that she made the allegations
.
The appellant had consensual sexual intercourse with C. He had not had sexual intercourse when she had been on her period
.
C had broken her jaw whilst he was doing a handstand
.
He denied that he had strangled her or kicked her in the chest
.
He denied that he had sought to control her actions
.
17.
The appellant gave evidence
that he had been 39 or 40 when he met the complainant whilst living in a bail hostel having been released from a prison sentence for drugs offences a few days earlier. He told her that he was 35/36 and was attracted to her but he was not looking to settle down, he just wanted a friend to “chill” with or a friend “with benefits” and had loads to do and people to see. The sexual relationship began after a week or so but he was unable to stay at her flat for more than a couple of weeks because of sex register conditions which he had not told her about as he had not been ready to commit but it all moved too fast. Both of them smoked cannabis and she owed drug money to men who came to her door; he told them that he was her boyfriend to keep them away from her. He did not ask her to hold his cannabis. He denied that he had run at her with a brick and a bottle. When things got stupid he would just leave. He did not try to get into her flat by “booting the door” and had never threatened to pour boiling water over her. He did have an argument with her sister present but he left and did not threaten to kill her. He did not damage her property or see her mother. He had spoken to her about work but she wanted to stay and chill, smoke weed and have sex. He had not told her to wear no make-up. She had two telephones when they met; he did not tell her to get rid of it or give her a cheaper phone and he had not told her that she could only bathe when he was present. They had both accused the other of cheating. He said that
"[o]ne thing that was comfortable was actually the sex, the one thing we were good at".
As to who initiated sex:
"Sometimes both of us, mostly I was on the Xbox until 4 a.m. and she would shout at me and ask, 'When are you coming to bed?' and then we'd have sex. I'd always ask, if it was me that initiated it. There wasn't any time she didn't want to. We didn't have sex every single day, but when we got on well we just smoked weed and had sex…
She never said she didn't want sex. If she had, I would have stopped. She never appeared agitated when we were having sex. She never appeared on edge and she did not appear scared at all."
18.
The defence also relied on the evidence of a next door neighbour who said that he had overheard a woman screaming and shouting racial abuse late at night at the same time that he heard banging noises from the appellant’s flat
.
19.
As set out above, the jury convicted the appellant on counts 1 to 3, 5, 6 and 8. They acquitted him on a multiple incident count of rape (count 4) and of assault relating to an incident when C said that he “booted” her in the chest (count 7).
The ruling on bad character
20.
The appellant had 17 convictions for 32 offences spanning from 1993 to 2020. His relevant convictions included: 1993: robbery (youth); 1994: indecent assault of a female under 14 and assault occasioning actual bodily harm x 2 (youth); 1995: attempted rape (youth); 2001: robbery; 2010: failure to comply with notification requirements and possession of a handgun x 2; 2011: violent disorder; 2020: failure to comply with notification requirements.
21.
There was an application by the prosecution to rely on some of these convictions as bad character evidence as follows:
i)
Convictions in 1994 and 1995 for sexual offences: indecent assault (digital penetration) on a 12 year old girl when the appellant was 14 years old and attempted rape of a female under the age of 16 years when the appellant was 15 years old (“the sexual convictions”);
ii)
Offences of violence (non-domestic): assault occasioning actual bodily harm on the 12 year old girl the subject of the indecent assault (1994); another assault occasioning actual bodily harm (1994); common assault in 1996; robbery in 2001; violent disorder in 2011 (“the violence convictions”).
22.
The Judge addressed the application on the first day of trial, both parties having earlier submitted written arguments. The prosecution case was that the sexual convictions and the violence convictions were relevant to an important matter in issue between the prosecution and defence, namely that he has a propensity for sexual violence and unlawful violence particularly towards women he knew or was in a relationship with
.
They meant that C was more likely to have told the truth. His previous behaviour had not been a one-off; they demonstrated that he had taken
“advantage of females by overpowering them and sexually assaulting them when he knows they are not consenting…that he is prepared to use or threaten violence to gain an advantage”.
23.
Counsel for the defence objected on the basis of the age of the appellant at the time of the offending. He was aged only 14 and 16 at the time. Further, the offences of robbery and violent disorder had not been committed in the course of a relationship
.
24.
The Judge gave her reasons for admitting the bad character evidence as follows:
“…I have considered the offences individually, as well as looking at the cumulative effect of the evidence in order to determine whether there is a pattern and whether the evidence is capable of demonstrating a propensity…
The defence object to the admissibility of the sexual convictions on the basis of the age of the defendant and the time that has elapsed since then. They argue that would make it unjust to admit the evidence and point to the fact that he was 14 and 16 at the time and now is 42 years of age. So far as the violence offences, the robbery and the violent disorder, Miss Ashcroft observes that they were not offences in the course of a relationship.
I have considered her arguments and reflected on the convictions and the details that have been provided. I am satisfied that the evidence of the convictions individually and together are capable of demonstrating the propensity the prosecution suggest. I have considered the gap in time. Because there were two incidents of sexual violence at a young age, I am satisfied that this behaviour was not a one-off, but was because of a propensity or is certainly capable of being judged as being so. If so, it is the type of propensity that endures and therefore, despite the gap between those convictions and these allegations, I am satisfied that the propensity is capable of being demonstrated.”
I have asked myself, “Does that propensity make it more likely that the defendant committed the offence charged?” and I answer that question positively. I carried out the same exercise so far as the violent offences were concerned. Whilst there are no particular features of similarity between the convictions and these offences, there are hallmarks of sexual violence in a relationship and of violence used towards others and, in addition, the robbery and violent disorder convictions demonstrate a willingness to use violence in a situation where the defendant seeks to gain an advantage. They are relevant to the allegations here. The jury will have to consider [C’s] credibility and, when they do, they may be assisted by asking themselves, “Is it just a coincidence that she would make up false allegations against a man who has this propensity to be sexually violent and to use and threaten unlawful violence in situations to gain an advantage for himself?” or, on the other hand, “Is it that her allegations are true?”
I am satisfied that it would not be unjust to admit them and that prejudice does not close the gateway. I take the view that the jury are well capable of taking a fair view of different incidents and will not be clouded by the previous convictions. Juries have routinely demonstrated an ability to follow directions and put aside emotion. It is important for them to know, in making a judgment on matters on the indictment, as to how [the appellant] has behaved in the past in considering his guilt in this case. It is not conclusive and there is no danger of them giving it more weight than it deserves…”
25.
Thus, in summary, it would not be unjust to admit the bad character evidence and prejudice did not close the gateway. The two incidents of sexual assault were capable of demonstrating propensity
.
The violent offences demonstrated a willingness to use violence in a situation where the defendant seeks to gain an advantage. These matters would be relevant to the jury’s consideration of C’s credibility. The jury could be trusted to take a fair view overall.
26.
Following the bad character ruling, the sexual and violence convictions were put before the jury as agreed facts, in the following terms:
“He has the following criminal convictions
Indecent Assault on a Female under 14 (30/08/94) – the circumstances of the conviction are that the defendant then aged 14 years forced a 12 year old girl into an alleyway, knocked her to the ground, pulled down her knickers and digitally penetrated her.
ABH – resulting from the same incident
ABH (21/10/94)
Attempt Rape (29/11/95) – the circumstances of the conviction are that the defendant then aged 15 years knew the complainant who was under 16, went to her home, took her to a shed and attempted to rape her.
Common Assault (22/02/96) 6
Robbery (12/12/01)
Violent Disorder (15/04/11)
Supply Class A drugs (05/06/15).”
(The evidence in relation to the appellant’s previous drug offending came about as a result of the appellant asserting that C had used cocaine.)
27.
The Judge then directed the jury in relation to the appellant’s previous convictions as follows:
“I now turn to a direction which I have called
Similar offences or pattern of conduct
. The prosecution say that the evidence from Mr. Richards’s previous convictions show a pattern of conduct on his part, namely, taking advantage of females by overpowering them and sexually assaulting them when he knows they are not consenting. They also argue that his convictions show that he is prepared to use or threaten violence to gain an advantage. They say that his previous convictions show that his previous behaviour was not a one-off, but something that he has a tendency toward and from this the prosecution argue you can conclude that, if Mr. Richards wants to gain an advantage, he is prepared to use or threaten physical or sexual violence and that makes it more likely that [C] is telling the truth and that he has committed these offences against her. The defence counter that the sexual offences were committed whilst he was a teenager and he is a different person now. Mr. Richards points out that the majority of assaults are not offences against women nor were they committed against someone with whom he was having a relationship. The defence also make these points that it was only after [C] was told something about his previous convictions that she made her allegations and they ask you to consider whether she was influenced by that information into making false allegations against him, but of course you may hear further argument about this topic and of course other arguments when the barristers talk to you later on today. They may make further points: if they do, please take them into consideration. But to summarise, you may consider whether the evidence from the previous convictions shows that Mr. Richards had a tendency to use or threaten physical or sexual violence and, if he does, whether that makes it more likely that he has committed these offences against [C]. If you are not sure that his previous convictions show that he has that tendency, you must ignore them. Only if you are sure they do show a tendency, in the way that I have described, may they support the prosecution case. It is for you, the jury, to say whether they do and if so to what extent, but please remember the evidence of the convictions is a small part of the prosecution case and you must not convict Mr. Richards wholly or mainly because of them. The fact that someone has committed sexual or violent offences in the past does not prove that they did so on this occasion.”
An overview of the parties’ positions on the appeal against conviction
28.
What follows here is an overview of the issues raised in order to set the scene. The parties’ respective arguments are addressed in more detail later in this judgment when necessary.
29.
Ms Ashcroft for the appellant submits first, that the Judge should not have admitted the extremely old sexual convictions (“Ground 1”). She accepts that the sexual convictions were capable of establishing continuing propensity and does not complain about the directions to the jury. However, she says that the Judge was wrong to admit the bad character evidence as a matter of discretion and that this had such an adverse effect on the fairness of the proceedings that it could not be cured by any jury directions. Whilst the appellant’s credibility in relation to the assault charges may have been already undermined, there were proper arguments with which to attack C’s credibility in relation to the rape charges. There was delay in making the complaints of rape: such complaints were made after a great deal of earlier contact with the police and only after the disclosures under “Clare’s Law”.
30.
Ms Ashcroft argues that the offending behind the sexual convictions took place far too long ago, when the appellant was in his mid-teens, to be fairly admitted. The features of the previous offending were not shared with the sexual offences charged in relation to C and ought not to have been sufficient to establish a continuing propensity. At one stage, the prosecution was also applying to rely upon a recent complaint of rape by a recent partner of the Appellant, but it withdrew this application. It is suggested that this material nevertheless may have influenced the Judge. All the convictions are thereby said to be rendered unsafe: a conclusion on the rape counts lent further support for C’s credibility in relation to the offences of violence and controlling and coercive behaviour.
31.
Secondly, it is said that there was demonstrable non-disclosure of material that casts doubt upon C’s credibility (“Ground 2”). Information came to light after trial to the effect that C had received money via a Marcus Brogan (“Mr Brogan”) to go to court against the appellant in revenge for a relationship that the appellant had begun with a Leanne Thompson (Aitcheson) (“Ms Thompson”). In the course of a separate enquiry, Ian Phillips (“Mr Phillips”) had been interviewed by police and questioned in relation to messages with Ms Thompson and that
“he’s give that girl £900 to stand and give evidence against him”
. Had the material been disclosed, then it is said that C could have been cross-examined on a sounder evidential basis. Alternatively, it could have led to further disclosure.
32.
Thirdly, the appellant seeks leave to adduce fresh evidence of Robert Docherty (“Mr Docherty”) that casts doubt upon C’s credibility and her motivations for making the rape complaints against the appellant (“Ground 3”).
33.
Mr Roberts for the prosecution opposes the appeal. As for bad character, the Judge properly considered the application and gave a proper direction on propensity and the weight that should be attached to the bad character evidence. In circumstances where the issue on the rape charges was consent, it was right for the jury to be told of the sexual convictions, even if elderly.
34.
It is not accepted that there has been non-disclosure. C was cross-examined about Mr Brogan and a visit to her by Mr Brogan and Mr Docherty. The evidence of Mr Phillips amounted to hearsay. The requirements of the
Criminal Procedure and Investigations Act 1996
were complied with in respect of C’s telephone.
35.
As for Mr Docherty, he was known to the defence prior to trial and he had been reluctant prior to trial. This undermines the assertion that he would be a willing and important witness. There is no evidence that C considered or attempted to withdraw her complaint. She was cross-examined on her initial reluctance to make her complaint.
Ground 1: bad character evidence
36.
The challenge on appeal is limited to a challenge to the Judge’s decision to admit the sexual convictions under
s. 101
of the
Criminal Justice Act 2003
(“
s. 101
”).
37.
In this regard, the prosecution relied on the gateway in
s. 101(1)
(d). It was argued that the sexual convictions were relevant to an important matter in issue between the defendant and the prosecution, in that the sexual convictions demonstrated a propensity to commit sexual offences.
38.
By
s. 101(3)
the court must not admit evidence under sub
section (1
)(d) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The court may also exclude bad character evidence under
s. 78
of the
Police and Criminal Evidence Act 1984
(“
s. 78
”).
39.
Of particular relevance to the present case was
s. 101(4)
of the
Criminal Justice Act 2003
, which provides that:
“On an application to exclude evidence under sub
section (3
) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged.”
40.
S. 108
of the
Criminal Justice Act 2003
also provides that offences committed when a defendant was under 14 should not be admitted as bad character unless both of the offences are triable only on indictment and the court is satisfied that it is in the interests of justice to admit the evidence. This did not apply to the present case, as the earliest offence was committed when the appellant was 14, but it is an indication of Parliament’s concern at reliance being placed on convictions when a defendant is very young.
41.
The appellant was a boy when he committed the sexual offences; the age of the sexual convictions is a particular concern. In
R v Hanson
[2005] EWCA Crim 824
;
[2005] 2 Cr App R 21
(“
Hanson
”) Rose LJ stated (at [11]):
“In principle, if there is a substantial gap between the dates of commission of and conviction for the earlier offences, we would regard the date of commission as generally being of more significance than the date of conviction when assessing admissibility. Old convictions, with no special features shared with the offence charged, are likely seriously to affect the fairness of the proceedings adversely, unless, despite their age, it can properly be said that they show a continuing propensity."
42.
However, this court should only interfere with the exercise by a judge of what was her broad discretionary power to admit evidence under
s. 101(1)
(d), and with the exercise of her discretion as to whether the admission of evidence would render the proceeding unfair by reference to
s. 101(3)
and
s. 78
, if the judge materially misdirected herself in law or acted in a manner that fell outwith the range of reasonable conclusions open to her. This is trite law, but it is worth repeating the comments of Rose LJ in
Hanson
at [15]:
“If a judge has directed himself or herself correctly, this court will be very slow to interfere with a ruling either as to admissibility or as to the consequences of non-compliance with the regulations for the giving of notice of intention to rely on bad character evidence. It will not interfere unless the judge's judgment as to the capacity of prior events to establish propensity is plainly wrong, or discretion has been exercised unreasonably in the
Wednesbury
sense:
Associated Provincial Picture Houses v Wednesbury Corpn
[1948] 1 KB 223
…”
43.
The position was summarised neatly in
R v Gillings
[2019] EWCA Crim 1834
at [32]. In summary,:
i)
The age of convictions is not in itself a bar to their admissibility, but it is a factor which needs to be carefully considered, particularly in the case of very old convictions;
ii)
The age of the convictions is relevant for two purposes: the first is a question of law, namely whether convictions many years beforehand are capable of constituting evidence of propensity. If they are, the question is whether they do in fact demonstrate such a propensity, and if so, the extent to which that assists in determining guilt is a matter for the jury. The second is whether, the admission of old convictions is likely to cause greater prejudice to a defendant than is justified by the probative value of that evidence;
iii)
The answer to both questions is likely to depend on the particular facts of each case and the issues which the jury have to determine. If there is no relevant similarity, the mere fact of old convictions may be incapable of constituting evidence of propensity, and even if capable of doing so, any probative effective is likely to be outweighed. But if there are relevant similarities, it may be open to the judge to conclude that the convictions are capable of constituting evidence of propensity and that they ought to be admitted;
iv)
If it is open to the judge, as a matter of law, to conclude that the convictions are capable of constituting evidence of propensity and if he exercises his discretion taking due account of the age of the convictions, the Court of Appeal is unlikely to interfere. It will only do so if the exercise of discretion by the judge is outside the broad range open to him.
44.
The exercise in each case will be acutely fact-sensitive. Other judges on the present facts may well have refused to admit the sexual convictions into evidence. But that is not the test. The question is whether there is a proper basis on which we should interfere with the Judge’s decision to admit them, a decision reached after careful consideration by the Judge and with full reasons. For the avoidance of doubt, there is no substance in the suggestion that the Judge was swayed by the abandoned bad character application in relation to an alleged recent rape of another girlfriend, and Ms Ashcroft rightly did not press the point.
45.
It is accepted that the Judge did not misdirect herself on the law. Further, as set out above, Ms Ashcroft accepted that it was open to the Judge to conclude that, as a matter of law, the sexual convictions were capable of establishing a continuing propensity for sexual offences. The challenge is to the exercise of her discretion. The Judge considered the issue of the antiquity of the offences and the “gap in time”. We do not consider that her decision to admit the sexual convictions, despite the age of the appellant at the time of committing the sexual offences and the passage of time, was
Wednesbury
unreasonable. The Judge acknowledged in terms the absence of any particular features of similarity, but considered that there were hallmarks of sexual violence in a relationship. The Judge also expressly considered the question of fairness, and her conclusion that admission of the sexual convictions would not render the trial unfair was within the range of assessments reasonably open to her. Indeed, the correctness of her assessment in this regard appears to have been borne out by the jury’s acquittal of the appellant on count 4, the multiple incident count of rape.
46.
The sexual convictions also went to a central argument mounted by the defence, namely that C had only alleged that the appellant had raped her after the disclosure to her of his past sexual offending history. Had the sexual convictions not been admitted, that line of argument would not have been open to the appellant. Alternatively, the appellant could have chosen to run that argument, but that would have necessitated disclosure of the sexual convictions to the jury. This was why the Judge had to rule on the admissibility of the sexual convictions at the outset of the trial.
47.
Further, this was not a case in which bad character evidence was adduced to support a prosecution case that was particularly weak: there was strong evidence against the appellant, in the form of C’s evidence, some corroboration from her mother and sister, and medical evidence of her injuries. The appellant’s explanation for breaking her jaw - he tried to do a handstand and it went wrong - was (at best) far-fetched. There was also no risk of satellite litigation.
48.
Having decided to admit the bad character evidence, the Judge gave conspicuously fair directions to the jury. She reminded the jury in terms of the appellant’s case that the sexual offences were committed whilst he was a teenager and he was a different person now. They were told that it was for them to decide if the convictions demonstrated a propensity. If not, they were to ignore them. If so, then the bad character evidence was still only “a small part” of the prosecution case and the jury could not convict wholly or mainly because of it.
49.
It is also relevant that there is no complaint about the admission of the violence convictions. This also illuminates the question of fairness, and the safety of the convictions, in context: the sexual convictions were not the sole source of bad character evidence against the appellant. The jury were always to going to learn of the violence convictions (and in due course also the appellant’s conviction for drug offending). The violence convictions went directly to C’s credibility. Thus, even if it was wrong to admit the sexual convictions into evidence, the error would not have rendered the appellant’s convictions unsafe.
50.
For these reasons, we do not consider that Ground 1 is made out.
Ground 2: alleged non-disclosure
51.
Grounds 2 and 3 relate to the point that the appellant now seeks to advance, namely that C made false allegations against him because she was bribed to do so by Mr Brogan, who was the ex-boyfriend of the appellant’s new girlfriend, and who had a grudge against the appellant as a result. The appellant seeks to assert that C was paid £900 by Mr Brogan and that the money was paid to her by a man called Mr Docherty on Mr Brogan’s behalf.
52.
At trial, the defence did not advance any allegation of bribery. Rather, the appellant contended that C had only made the allegations of rape i) several months after she had made the allegations of assault after her relationship with the appellant had come to an end, and ii) after she was told of the appellant’s previous convictions of a sexual nature (under “Clare’s Law”). C explained that the delay in making the rape allegations arose out of the fact that it was not until December 2019 that she appreciated that it was possible to be raped within a relationship. The appellant had also provided alternative explanations for C’s injuries and denied that he had assaulted or raped her.
53.
As foreshadowed above, on Ground 2, the appellant says that that there was material known to the police which could have supported an allegation of bribery but which was not disclosed by the prosecution. The material was a statement by Mr Phillips, who was interviewed on 11 May 2020 in relation to an unrelated matter, and telephone messages downloaded from Mr Phillips’s mobile telephone which referred to Mr Brogan giving a girl £900 to stand trial against Tank. The matter for which Mr Phillips had been arrested was harassment and for breaching a restraining order which prevented him from having any contact with Mr Brogan and Mr Brogan’s then girlfriend (later the appellant’s girlfriend), Ms Thompson.
54.
One of the alleged incidents was a text message from Mr Phillips to Ms Thompson on 28 and 29 January 2020 in which he said “he’s give that girl £900 to stand and give evidence against him”. The message was downloaded by the police in the course of the investigation against Mr Phillips. During his interview, Mr Phillips said that Mr Brogan was “a grass – he’s dobbed you into the DVLA and given a girl money to give evidence against Tank for rape over Christmas last year”. As set out above, “Tank” was the name by which the appellant was commonly known.
55.
Ms Ashcroft submits that, by virtue of the lengthy history of proceedings and the officer in the case actioning specific disclosure requests which named both Ms Thompson and Mr Brogan, the prosecution was on notice that material pertaining to each of these individuals was of possible assistance to the appellant. The appellant was named in the interview with Mr Phillips, in addition to the suggestion that Mr Brogan had sought to make a payment to a female to give evidence against the appellant regarding rape. It is reasonable to assume that such information was investigated and not disclosed.
56.
Ms Ashcroft submits that, had the defence been in possession of this material, it would have been able to cross-examine C on the point and that her credibility as a witness may potentially have been undermined. C was not cross-examined on the basis that she had been bribed by Mr Brogan to make the allegation.
57.
Mr Roberts contends that there are two cumulative answers to Ground 2.
58.
The first is that this material was not gathered as part of the investigation into the offences said to have been committed by the appellant. It was obtained in an unrelated investigation, in which there was no reference to C by name, or to the allegations made by her against the appellant. It is said to be unreasonable for the police during every investigation to consider other investigations into known associates of a defendant, which is the only way in which the police investigating the case against the appellant would have obtained this material.
59.
Secondly, and in any event, it is said that none of this renders the convictions unsafe. C gave evidence in cross-examination about her contact with Mr Brogan. Her evidence was that she was visited by two men in early December 2019 after she had first made the allegations of violence (in June 2019) but before she made the allegations of rape. She had thought that they had come to speak to her about personal training, but then she suspected that they had been sent by the appellant to dissuade her from proceeding with the assault case against him. In cross-examination, she said that she believed that one of these men was, or was connected with, Mr Brogan. Thus, her evidence was not that Mr Brogan offered her money to proceed with the allegations against the appellant, but rather that he visited her with another man, acting on the appellant’s behalf, to try to dissuade her from making an allegation against the appellant. It is said that, even in the face of hearsay evidence from Mr Phillips, either as a tool for cross-examination or as part of a formal admission, C’s evidence would have remained unchanged.
60.
Further, it is clear that the appellant was suspicious about Mr Brogan from an early stage. The appellant was tipped off that Mr Brogan (or a representative) had visited C and paid her money to make allegations of rape against him. The person who gave this information to the appellant did not want to give evidence. Others could only give hearsay evidence. However, a woman called Clare Haxton gave defence solicitors a statement and screen shots of her telephone to support the allegation that Mr Brogan asked her for information about C and indicated that he intended to offer her money to make allegations against the appellant. The appellant’s first defence case statement dated 24 February 2020 (denying the
s. 20
offence of violence) asked for a “full download of C’s telephone” with particular attention being drawn to all communications between C and Mr Brogan, Ms Thompson, Mr Docherty and the appellant. That request was repeated in a second defence case statement (denying the rapes). It was no part of that defence case statement that C had been paid money to make false allegations.
61.
On 21 July 2021, the officer in the case, DS Hussain, informed the defence that he had reviewed the downloads and prepared an exhibit which detailed some of the contents. These included messages from Mr Docherty to C on 20 December 2019, saying “I’m going to bring some money to ya”, “I’m gonna post it in your flat ok” and “I want you to have the doe up to you what you do I’m helping ya”. The record of the downloads did not refer to any communication between C and Mr Brogan.
62.
We are not persuaded that there is a valid basis for criticism of the prosecution disclosure. There was compliance with prosecutorial disclosure obligations under
s. 3
and a full response to the appellant’s application under
s. 8
of the
Criminal Procedure and Investigations Act 1996
. In particular:
i)
C’s telephone was exhibited and a download prepared;
ii)
The download was trawled using relevant search terms triggered by the defence case statement, including by reference to Mr Brogan, Mr Docherty and Ms Thompson;
iii)
In the response to the
s. 8
application, the contents of the downloads of C’s telephone were summarised to the defence, including a Facebook Messenger conversation between C and Mr Docherty on 20 and 21 December 2019:
“There’s a mention of sending something out to her by post and Robert attending court to give evidence for her”.
63.
What was a lengthy police interview with Mr Phillips was not connected in any way with the offences for which the appellant was charged, and there is no suggestion that the interviewing officers were involved in the case against the appellant. The appellant never mentioned Mr Phillips in any of his defence case statements or requests for disclosure. Neither in the text message nor in Mr Phillips’ interview was C ever named.
64.
In any event, even if it is arguable that the police should have made the connection with the text message and comments of Mr Phillips, the convictions are not rendered unsafe:
i)
The defence was aware of the allegation that payment had been made to C but chose not to cross-examine her about it;
ii)
Mr Phillips’s comments were hearsay, and were allegations made against Mr Brogan, whom he had been accused of harassing;
iii)
C was asked if she had ever spoken to a man called Mr Brogan and she said that he was one of the men who came to visit her in December 2019. She said, “He came with Robbie, because he wanted to tell me what Tank was planning. He wanted to get me done in and to stop me going to court.” She denied that she had told Mr Brogan that she was going to make a complaint of rape; and
iv)
C was cross-examined at length and the jury was well-placed to assess her credibility.
65.
Ms Ashcroft rightly accepted that the statements by Mr Phillips could not have been deployed directly in evidence. At most, they could have led to further enquiries. But there is no evidence as to i) what enquiries would have been made or ii) what those enquiries would (or even might) have revealed.
Ground 3: fresh evidence
66.
By
s. 23(1)
we can admit evidence which was not produced below if we think it necessary or expedient in the interests of justice to do so. In considering that question, we must have regard in particular to:
i)
Whether the evidence appears to us to be capable of belief;
ii)
Whether it appears to us that the evidence may afford any ground for allowing an appeal;
iii)
Whether the evidence would have been admissible in the proceedings below;
iv)
Whether there is a reasonable explanation for the failure to adduce the evidence below.
(See
s. 23(2)
).
67.
The four elements identified in
s. 23(2)
are all separate. But each needs to be considered as part of a multi-factorial evaluation as to whether or not the fresh evidence should be received.
68.
The fresh evidence here is the statement of Mr Docherty. In his written statement he stated that in around December 2019 he was asked by Mr Brogan to drop some money off to C on 19 December 2019, because Mr Brogan did not have a car. He says that, when the arrangements for delivery were being made, he overheard a telephone call between C and Mr Brogan. He heard Mr Brogan say that he was paying her to go to court and to move out of the house. He was at Mr Brogan’s end of the call at the home address of one of Mr Brogan’s friends. He could hear that C’s mother was with C, because she was saying that they needed the money to go to court. They were pushing Mr Brogan for the money. Mr Brogan was clear he was paying C to go to court. Before he left to deliver the money he asked Mr Brogan what the problem was. Mr Brogan just said “he was in a mood with his ex and wanted revenge”.
69.
He was given an envelope with £800 written on the outside. He drove to the address in Royton for which C had given directions during the telephone call. He “buzzed a couple of flats” to get into the front door and then went up to the flat (5). No one answered so he posted the envelope through the flat door. He said that after he did so, he received two messages via Facebook from C, one saying that she had not received the money and another saying that the money was not enough. He also received a call from C’s mother, asking him to come and meet her to give her the money from Mr Brogan. He told C’s mother that he had dropped the money off.
70.
Two days later he was arrested on an outstanding warrant for a different matter. He went to prison and did not come out until February 2021. He had been on the run at the time when he was doing this. He said that he had given his solicitors the telephone that he used, but at the moment it cannot be accessed. He is aware that he may be prosecuted for perverting the course of justice.
71.
The factors that are in issue in the present case are (a) and (d). We are prepared to accept for present purposes that Mr Docherty’s evidence, if credible, might potentially (though not definitely) afford a ground for allowing the appeal. It is fair to point out, however, its potential force is diminished substantially by the fact that C had made a statement to the police alleging that the appellant had raped her on 9
th
December 2019, over a week before 19
th
December 2019, the day when Mr Docherty said he delivered the money to C’s flat. It is common ground that Mr Docherty’s evidence would have been admissible at trial – being direct evidence of a motive for lying on the part of C.
72.
We consider first whether there is a reasonable explanation for the failure to adduce evidence from Mr Docherty at trial.
73.
It is for an appellant seeking to adduce fresh evidence to satisfy the court that, with reasonable diligence, the evidence could not have been obtained for the trial (
R v Beresford
[1971] 56 Cr App 143:
R v Nabarro
[1972] Crim LR 497). The appellant relies in this regard on the evidence of his solicitor, Ms Hall.
74.
Ms Hall states that she was first told on 25
November 2021 by the appellant that Mr Docherty had come forward as a willing witness. This was, of course, just over a week after the appellant’s convictions.
75.
Ms Hall states that Mr Docherty had been “incidentally mentioned” previously, but “we had been unable to obtain a statement from him.” The name “Rob Docherty” had come up in the context of the concern that C had been paid to give false evidence. She goes on to state that, prior to 25 November 2021, she had not had contact details for “Rob” “or been in a position to contact him”.
76.
We do not consider that any reasonable explanation for the failure to call Mr Docherty at trial whatsoever has been advanced. The defence was aware at an early stage of the existence of Mr Docherty and the possibility that he could give relevant evidence. So much is admitted. This is why the first defence case statement sought disclosure of any record on C’s telephone of contact with, amongst others, Mr Docherty, a request which was pursued in correspondence (see for example a letter from the appellant’s solicitors to the prosecution dated 24 April 2020) and in the second defence case statement.
77.
Whatever Ms Hall’s position in terms of knowledge of Mr Docherty’s whereabouts and/or contact details, there is no explanation as to why the appellant was able to identify Mr Docherty to Ms Hall as a willing witness almost immediately after his convictions, but apparently unable (or unwilling) to do so before trial. There is no evidence as to what, if any, attempts before trial were made to contact Mr Docherty, even though he was known to be a potentially relevant witness, and with what result. Mr Docherty’s position before us was that he was willing and able at all times following his release from prison in February 2021 to give evidence. Ms Thompson at least appears to have had his telephone number in mid-2021, and there appears to have been some chain of communication between Mr Docherty and the appellant, as evidenced by the call by the appellant to Ms Hall on 25 November 2021.
78.
The absence of a reasonable explanation does not mean that the application must necessarily be rejected, although in the present case it is a very powerful factor. We consider also the credibility of the evidence. We ask ourselves whether the evidence, if given at trial, might reasonably have affected the decision of the trial jury to convict (see
R v Pendleton (Donald)
[2001] UKHL 66
at [19]).
79.
To this end, we heard oral evidence from Mr Docherty
de bene esse
. He confirmed that he had a number of criminal convictions. Most recently, in December 2019, for an offence of burglary, committed in 2015, he received a sentence of 3 years’ imprisonment from which he was released in February 2021.
80.
He said that he had never seen or met the appellant but that he had heard his name mentioned by his friends, Mr Brogan and Marcus Brogan’s ex-wife, Leanne Aitcheson (aka Thompson). In particular, after Mr Brogan and Ms Thompson separated, he was told that Ms Thompson had formed a new relationship with the appellant. In addition, he and the appellant had, at one time, been in the same prison, namely HMP Forest Bank.
81.
Mr Docherty said that he recognised C’s name. That was because, on 19 December 2019, he dropped off some money at her home address. He remembered the date because it was two days before he was arrested on warrant for the offence of burglary. He said that, at 7.30pm that evening, he received a phone call from Mr Brogan, asking him to drop off some money for him. When he drove to Failsworth, as requested by Mr Brogan, he saw Mr Brogan walking towards his car, on his telephone. Mr Brogan had the telephone on loudspeaker and was talking to C. Mr Brogan walked round and opened the car door to sit in the front passenger seat. Mr Docherty was sitting in the driver’s seat in his car, which was stationary. Mr Brogan passed the telephone to him so that C could give him the address in Royton where he was to drop off the money. He confirmed that C did not tell him her name but that he heard Mr Brogan speaking to someone by her name. He said that he heard another woman in the background who he believed to be C’s mother. During the conversation, Mr Brogan handed him an envelope. It was sealed and had the number “800” written on it. He knew that the envelope contained money and he heard the other woman saying, “don’t worry, I’ll make sure she goes to court and the money is used for moving house”.
82.
Mr Docherty said that he drove to the address in Royton and buzzed the number of the flat that he had been given. When there was no answer, he buzzed a number of other flats until someone admitted him through the communal entrance. He went up to the top floor where he posted the envelope through the letterbox and then left. About half an hour later, he received a text on Facebook Messenger from C saying, “You haven’t dropped the money off”. He responded by Facebook Messenger to say that he had dropped off the money. He then got another text from C, saying, “there wasn’t enough money there”. He responded by saying, “you’ll have to take it up with Marcus”. Later, he received a telephone call on Facebook Messenger from C’s mother asking him to “bring me the money”. He responded by simply putting the telephone down. That was the last that he heard of the matter because two days later he was arrested on warrant and remained in custody until February 2021.
83.
In June, July or August 2021, he received a phone call from Ms Thompson asking, “Did you go and pay some money from Marcus?”. When he said that he had done so, he was asked to arrange for his solicitor to contact the appellant’s solicitor so that he could make a statement about what had happened. He contacted his solicitor and then waited to be contacted by the appellant’s solicitor. On 21 December 2021, he made a witness statement setting out the detail of his dealings with Mr Brogan, C and her mother.
84.
The general background in terms of Mr Docherty’s credibility is not a promising one. Mr Docherty is a convicted criminal, including for offences of dishonesty, although he was at pains to emphasise that he is now a reformed character, telling only the truth and not wanting to get himself or his family into any trouble. He was also, on his own account, using drugs at the time of the events in December 2019 about which he wished to give evidence. (Mr Docherty said in cross-examination that Mr Brogan had paid him £40 to deliver the envelope to C (to fund his class A drug habit). That is not something that he mentioned either in his witness statement or in his evidence-in-chief.) Further, the timing of his arrival on the scene as a witness, only days after the appellant’s convictions, itself raises questions as to its credibility. There are other suspicious features, such as the fact that Mr Docherty says that he can no longer remember the telephone number (or username) for the telephone that he was using in December 2019.
85.
There are multiple specific aspects of Mr Docherty’s evidence which cause us concern. First, and perhaps most materially, Mr Docherty vigorously denied in his oral evidence that he had ever spoken to or even seen the appellant, only ever having heard his name mentioned. However, in his witness statement he had said that “Emmanuel Richards is someone I have known of for a long time … I would not describe him as being somebody who is a close friend … I have got to know Emmanuel again through Leanne and the relationship that she has had with him”. Mr Docherty’s attempts to distance himself from the appellant were both suspicious and uncompelling. In a similar vein, Mr Docherty said that he had not seen Mr Brogan since being released from prison. Mr Docherty had said that Mr Brogan was someone he used to see two or three times a week. He was unable to give a reason for the sudden loss of contact.
86.
Secondly, Mr Docherty told us that he had arrived and sat in his parked car when he saw Mr Brogan to collect the envelope of money in Failsworth. Mr Brogan had come out to him with his telephone. However, in his witness statement he stated that he had been “at the home address” of one of Mr Brogan’s friends, and “left the house”. Thus his evidence surrounding the crucial hand-over of money and the overheard telephone conversation involving C and her mother was inconsistent and unreliable.
87.
Thirdly, Mr Docherty told us that, when he was later called by C’s mother, he put the telephone down on her immediately. However, in his witness statement, he stated that he had then gone on to have a conversation with both C’s mother and C. C had said “she did not want to go to court but her Mum was pressurising her”.
88.
Further, the police downloads of C’s telephone, as disclosed to the defence, show that C and Mr Docherty exchanged a number of Facebook messages on 20 and 21 December 2019. These messages are not consistent in number, timing or content with Mr Docherty’s evidence as regards his communications with C. None of these messages said anything about a payment being made to C in return for her going to court against the appellant.
89.
We have considered, with care, the differences in the accounts given by Mr Docherty. We are troubled by those inconsistencies because they go to the heart of his relationship with the appellant and his dealings with both Mr Brogan and C. As set out above, we are also troubled by the fact that, notwithstanding the fact that Mr Docherty was contacted by Ms Thompson in June, July or August 2021, the appellant did not apparently bring the matter to the attention of his solicitors until after his convictions.
90.
In the circumstances described above, we find ourselves unable to conclude that the evidence of Mr Docherty is capable of belief.
91.
In conclusion, there is no reasonable explanation for the failure to call Mr Docherty at trial; his evidence, if credible, might (just) have afforded a ground of appeal, but we do not consider his evidence to be reliable. For these reasons, it is not in the interests of justice to admit the fresh evidence from Mr Docherty and we decline to do so. Ground 3 falls away.
92.
In circumstances where we find that the appellant’s convictions are not unsafe, it is necessary for us to address his appeal against sentence.
Appeal against sentence
93.
The Judge had before her victim impact statements from C, her mother and sister and a pre-sentence report.
94.
C spoke of the constant fear that she had experienced in the years running up to trial, accompanied by flashbacks and nightmares. She is left with facial disfigurement which she finds very noticeable and reduces her confidence. She becomes scared and intimidated around men, especially strangers. She still does not feel safe in public. She describes herself as being “really scarred for life”. Her mother describes C as going from a bubbly, happy teenager to a nervous wreck who had lost all of her confidence. Her sister said that the entire family had suffered with anxiety and fear.
95.
The author of the pre-sentence report recorded the appellant’s lack of co-operation. He presented as uninterested, at times aggressive and in low mood. He blamed C and the police for conspiring against him. He said that he could not explain something which he had not done. He was assessed as posing a high risk of serious harm to the general public, and to C.
96.
When sentencing the appellant, the Judge commented that the offences were committed against C who was half his age. She went on:
“You targeted her for a casual sexual relationship in which you exploited and manipulated her. You used appalling violence and intimidation to coerce her. You raped her on three occasions, one of which was when she was already particularly vulnerable and injured after an assault upon her when you threw her down the stairs to the floor and one was when she was especially vulnerable because she was asleep. The assault occasioning actual bodily harm is very serious because you strangled her until she lost consciousness. That must have involved the application of very significant pressure for a frightening amount of time. The grievous bodily harm is also very serious. You are a very powerful man and you used significant force to smash her jaw, resulting in serious injuries for her, requiring an operation and leaving her with a disfigurement and after that you attempted to cover it up over a significant period of time”.
97.
Having regard to the relevant Sentencing Council Guidelines, the Judge placed the offending in counts 1 and 2 within category 3B. Count 2 was at the top of that category as C had suffered “severe psychological harm”. Because the rape followed and was connected to violence, the offending in count 3 was placed within category 2B
and would, on its own, have attracted 9 years’ imprisonment. Count 5 was placed within category 2A. On Count 8, C had been vulnerable and there had been psychological impact caused by the controlling behaviour. The offences had been aggravated by the previous convictions and the rapes and assaults were in the context of a “coercive and domestic relationship”.
98.
In mitigation the Judge acknowledged that the appellant had had a
“difficult upbringing and [was] an immature man with no proper role models”.
But that was “a role in which [he] had flourished and refused to change, despite interventions”.
99.
With regard to the principle of totality, count 3 would be the lead offence. The Judge found the appellant to be dangerous; he had a long history of previous offending including violence and sexual violence. Significant psychological and physical harm had been done to C and he had no empathy, regret or insight into what he had done to her. He had failed to engage in rehabilitation and failed to comply with measures designed to protect the public, including notification requirements and licence conditions. He had done so to prevent monitoring. He had deliberately tried to keep his relationship with C secret from probation services. The risk was unlikely to reduce unless he changed his lifestyle which he appeared to be unable or unwilling to do
.
Ground of appeal
100.
Ms Ashcroft submits that the determinate sentences on all but count 3 were not manifestly excessive
.
On count 3, it is accepted that there had to be an inevitable upward adjustment from the notional term of 9 years’ imprisonment in order to reflect the previous incidents of rape; a broken jaw and a controlling and coercive relationship. Further, the offences were aggravated by the appellant’s previous convictions. However, the Judge gave insufficient regard to totality was further compounded by the finding of dangerousness and the requirement to serve at least two thirds of his sentence.
Discussion
101.
We can take this part of the appeal shortly. The Judge was well-placed to sentence the appellant following trial, and considered all of the relevant material before her carefully.
102.
As set out above, there is no challenge to the sentences for the individual offences or to the finding of dangerousness. The simple point is that the upward adjustment on count 3 is too great, leading to a disproportionate and manifestly excessive sentence.
103.
A sentence of 9 years’ imprisonment, at the top of the range for category 2B offending, on count 3 could be justified, taking into account the appellant’s previous convictions and the domestic context of the offence, but putting to one side the other offences. Those other offences then needed to be reflected in an appropriate upward adjustment. An uplift of 6 years’ imprisonment to reflect the two other rapes, the assault which broke C’s jaw in several places, leaving her with a permanent disfigurement, the assault in which C was strangled to the point of unconsciousness and coercive and controlling abuse is also not manifestly excessive. However the overall sentence was structured, a custodial term of 15 years (plus an extension period of 3 years) was justified.
104.
The Judge paid express regard to the principle of totality. The overall sentence of 15 years’ imprisonment was not disproportionate to the appellant’s overall criminality. The appellant had committed an appalling catalogue of violent and sexual offences on a much younger woman in a domestic context causing long-term and serious harm.
Conclusion
105.
For these reasons, we dismiss both the appeal against conviction and the appeal against sentence. | {"ConvCourtName": ["Manchester Crown Court"], "ConvictPleaDate": ["17 November 2021"], "ConvictOffence": ["grievous bodily harm", "controlling or coercive behaviour in an intimate or family relationship", "rape", "assault occasioning actual bodily harm"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Manchester Crown Court"], "Sentence": ["5 years’ imprisonment", "7 years’ imprisonment", "extended sentence of 18 years’ imprisonment on count 3, comprising a custodial term of 15 years and an extension period of 3 years", "Thus the overall sentence was one of 18 years’ imprisonment, comprising a custodial term of 15 years and an extension period of 3 years.", "2 years’ imprisonment", "3 years and 6 months’ imprisonment"], "SentServe": ["concurrently"], "WhatAncillary": ["restraining order"], "OffSex": ["He"], "OffAgeOffence": ["39"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["living in a bail hostel"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["appellant’s former partner"], "VictimType": ["appellant’s former partner"], "VicNum": ["Copy link to this paragraphThe complainant"], "VicSex": ["her"], "VicAgeOffence": ["19"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["evidence from C’s mother and sister.", "evidence from a doctor", "C gave evidence at trial through her ABE interview", "admitted to hospital with a broken jaw.", "evidence from a police officer"], "DefEvidTypeTrial": ["The appellant denied all allegations."], "PreSentReport": ["high risk of serious harm to the general public"], "AggFactSent": ["C had been vulnerable", "no empathy, regret or insight", "17 convictions", "severe psychological harm"], "MitFactSent": ["difficult upbringing"], "VicImpactStatement": ["victim impact statements"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against conviction and sentence"], "AppealGround": ["i)The Judge was wrong to admit bad character evidence", "the Judge failed to have sufficient regard to the principle of totality", "manifestly excessive", "ii)There was demonstrable non-disclosure on the part of the police/prosecution", "iii)There is fresh evidence"], "SentGuideWhich": ["s. 1(1) of the Sexual Offences Act 2003", "s. 360 of the Sentencing Act 2020.", "Sexual Offences (Amendment) Act 1992", "principle of totality", "s. 20 of the Offences against the Person Act 1861", "s. 76(1) and (11) of the Serious Crime Act 2015", "Sentencing Council Guidelines"], "AppealOutcome": ["dismiss both the appeal"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["it is not in the interests of justice to admit the fresh evidence from Mr Docherty and we decline to do so."]} | {"ConvCourtName": ["Manchester Crown Court"], "ConvictPleaDate": ["2021-11-17"], "ConvictOffence": ["assault occasioning actual bodily harm", "controlling or coercive behaviour in an intimate or family relationship", "grievous bodily harm", "rape"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Manchester Crown Court"], "Sentence": ["Thus the overall sentence was one of 18 years’ imprisonment, comprising a custodial term of 15 years and an extension period of 3 years.", "2 years’ imprisonment", "3 years and 6 months’ imprisonment", "extended sentence of 18 years’ imprisonment on count 3, comprising a custodial term of 15 years and an extension period of 3 years", "7 years’ imprisonment", "5 years’ imprisonment"], "SentServe": ["Concurrently"], "WhatAncillary": ["restraining order"], "OffSex": ["All Male"], "OffAgeOffence": ["39"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Temporary Accommodation"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Female"], "VicAgeOffence": ["19"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Expert testimony", "Police testimony", "Witness testimony", "Victim testimony", "Medical evidence"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["High risk of harm"], "AggFactSent": ["no empathy, regret or insight", "C had been vulnerable", "severe psychological harm", "17 convictions"], "MitFactSent": ["difficult upbringing"], "VicImpactStatement": ["Yes"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against conviction and sentence"], "AppealGround": ["manifestly excessive", "the Judge failed to have sufficient regard to the principle of totality", "iii)There is fresh evidence", "ii)There was demonstrable non-disclosure on the part of the police/prosecution", "i)The Judge was wrong to admit bad character evidence"], "SentGuideWhich": ["principle of totality", "Sentencing Council Guidelines", "s. 360 of the Sentencing Act 2020.", "s. 76(1) and (11) of the Serious Crime Act 2015", "s. 20 of the Offences against the Person Act 1861", "s. 1(1) of the Sexual Offences Act 2003", "Sexual Offences (Amendment) Act 1992"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["it is not in the interests of justice to admit the fresh evidence from Mr Docherty and we decline to do so."]} | 170 |
Case No:
2009000976 A3
Neutral Citation Number:
[2009] EWCA Crim 669
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date Thursday, 12th March 2009
B E F O R E:
LADY JUSTICE HALLETT DBE
MR JUSTICE KEITH
RECORDER OF LIVERPOOL
(Sitting as a judge of the Court of Appeal Criminal Division)
R E G I N A
-v-
NAZIR AHMED
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 Baker QC & Mr D Singh
appeared on behalf of the
Applicant
Mr N Paul
appeared on behalf of the
Crown
J U D G M E N T
1
LADY JUSTICE HALLETT: This case has aroused a great deal of public interest and comment. Unfortunately, some of it has been misinformed. It is important to state at the outset of this judgment the nature of the offence admitted by this applicant. He pleaded guilty to an offence of dangerous driving. He has never been accused of or admitted an offence of causing death by dangerous driving.
2
The facts of the offence that he admitted are as follows: at quarter past six on the evening of Christmas Day 2007 he drove along the M1 motorway at speeds of about 60 miles per hour with his wife and mother in the car. Over a period of about 10 to 15 minutes he received and read two text messages from a journalist and he composed and sent in reply three substantial text messages, on his mobile telephone.
3.
At about the same time Mr Martin Gombar was driving along the same road in an Audi motor car. Unfortunately, he was unfit to drive through drink and his car had two defective tyres. This may help to explain what happened next. Mr Gombar crashed into the central reservation. He and his passengers made it to safety on the hard shoulder, leaving the Audi straddling two lanes. The motorway was dark and the Audi was unlit. According to a police officer who drove along the same stretch of road at about 50 miles an hour soon after the accident, knowing the Audi was there, the Audi was virtually impossible to see until one was almost upon it. Several vehicles narrowly avoided a major collision. One just clipped the Audi as it passed. Another vehicle managed to avoid the Audi but collided with the central reservation in the process.
4.
Sadly, Mr Gombar made the fatal decision to return to his car. It seems therefore that there was little, if anything, the applicant could do to avoid colliding with him. It was not suggested that at this time he was paying insufficient attention or that, had he been driving more slowly, he could have avoided the collision.
5.
Mr Gombar was killed. The applicant was knocked unconscious briefly and his wife and his mother were injured. Nevertheless, the applicant called the emergency services and he risked his life trying to flag down other vehicles to stop them colliding with the cars. He later handed the mobile telephone he had been using to the police for them to examine as part of their investigation. It transpired that he had finished texting some two minutes and 3 kilometres before he came upon Mr Gombar in the carriageway.
6.
Mr Baker QC, to whom we are indebted for his extremely helpful submissions, informed the court that in the course of the police investigation into the death of Mr Gombar the applicant attended for interview, as requested, on three separate occasions, in January, April and October 2008. It was nearly a year after the crash that the applicant was eventually informed he would not be prosecuted for causing death by dangerous driving.
7.
Mr Paul, who appeared on behalf of the Crown before us, informed us the reason for the delay was that considerable resources are required to investigate properly the use of a mobile telephone. The decision to analyse the applicant's use of his telephone was not taken until some time after the crash. Once the results of the analysis were available the decision was taken to charge the applicant with the offence of dangerous driving. Mr Baker was anxious to draw to our attention the fact that by that time the option of charging the applicant with a summary only offence of using a mobile telephone contrary to the Road Vehicle (Control and Use) Regulations of 1988 and
section 42 of the Road Traffic Act 1988
was no longer available. Had it been, the applicant would have been in a position to offer to plead guilty to a summary only offence, for which a fine at level 3 has been laid down by Parliament. Imprisonment would not have been option. Mr Paul was unable to confirm or deny whether such a plea would have been acceptable.
8.
Mr Baker developed this line of argument further, stating as he did so, that he now regrets not developing it fully before the trial judge. He accepted that the fact Parliament has provided a maximum penalty for a summary offence which might “cover or parallel” the actual offence charged, does not bind the sentencing court to the statutory maximum for the summary offence. Nevertheless he reminded the court of the principle set out in R v
Bourgass
[2007] 2 Cr App R 40
and reaffirmed to an extent by the present Lord Chief Justice (then President of the Queen's Bench Division) in R v
Bright
[2008] EWCA Crim 462
, that, where the offences mirror each other, the statutory maximum for one may act as a “guide” to the sentencing court. Pausing there, for this line of argument to have any force Mr Baker would, of course, have to persuade us that the facts of the instant offence as charged do indeed mirror an offence of using a mobile telephone contrary to the Regulations. The applicant here pleaded guilty not simply to an offence of using a mobile telephone while driving but to using a mobile telephone in circumstances which amounted to dangerous driving.
9.
Mr Baker rightly pointed out he did so at the first opportunity. The case was adjourned for reports, but when the applicant next appeared at the magistrates' court, despite representations from both the defence and the prosecution that the matter was suitable for summary trial, the case was committed to the Sheffield Crown Court. It there fell to Wilkie J to sentence the applicant. On 25th February 2009 he imposed a sentence of 12 weeks' imprisonment. Further, the applicant was disqualified from driving for 12 months and until an extended re-test was passed and he was ordered to pay prosecution costs. Given the relatively short length of the sentence, the Registrar did his best to ensure that this application for leave to appeal against sentence has been referred to this court at the earliest possible date.
10.
The mitigation available to the applicant was powerful indeed. The applicant had the benefit of an extremely positive pre-sentence report, to the author of which the applicant had expressed considerable remorse. Despite having been a magistrate himself, he admitted that he had not thought through the potential consequences of his actions. He accepted full responsibility for his offending and he did not attempt to minimise or justify his behaviour. He felt that he had let down his local community, his employers and his family. He recognised the impact of his offending on possible victims of behaviour of this kind.
11.
Mr Baker provided for Wilkie J very few testimonials for the applicant. This was because the applicant himself was reluctant to approach his friends and colleagues to speak on his behalf. We have had the benefit of considerably more testimonials which we were told were unsolicited. We shall attempt to summarise what people have said. The applicant came to this country at the age of 11, speaking no English. He worked his way up the retail ladder. He is described as a man of integrity and commitment and a role model to many within his community. His public service has been considerable, both at the local and national level, and in 1998 it was rewarded with a life peerage. The applicant retains strong links with his local community in South Yorkshire, where he chairs a number of local bodies and organisations, including, we note, Victim Support. He devotes much of his time to assisting dispute resolution and the promotion of inter-faith understanding nationwide to the extent that he has at times put his own life at risk. In the House of Lords he is a full-time and active member. He has been involved in a number of high profile initiatives both at home and abroad. He has been involved in humanitarian work in Darfur, Sudan and Nigeria.
12.
We could go on. The authors of the letters speak with one voice: the applicant is a man of stature and international repute, he has done considerable good work over the years for society as a whole and he is capable of doing even more in the future. The authors accepted that the applicant has broken the law and may deserve to be punished, but they fear that a prison sentence may affect significantly the work that he can do for the community.
13.
Mr Baker argued that this court should quash the sentence of imprisonment, essentially because it would be in the greater good. The applicant has but days to go to complete his sentence. His release date is 20th March. Mr Baker assured us that the applicant does not suggest he cannot survive that length of time. However, both he and those who know his work are concerned about the impact of a prison sentence on his ability to travel and to persuade. As a former serving prisoner, people may not listen to him with the respect and care that they once did.
14.
Mr Baker conceded that some offences of dangerous driving may well merit an immediate custodial sentence, but he argued this was not one such. He relied in particular upon the following mitigating factors:
(1) the “limited” nature of the offence; the applicant’s driving was not in fact described as erratic or dangerous by other road users and there is no evidence of excessive speed or any other form of bad driving;
(2) the delay in the decision to prosecute and its effect;
(3) the immediate pleas of guilty;
(4) the genuine remorse expressed ;
(5) the applicant's own significant personal injuries from the crash; not only was he knocked unconscious as we have indicated, he suffered lacerations to his face, which required significant stitching and will result in permanent scarring;
(6) his unblemished driving record over the last 30 years;
(7) and (8) his previous excellent character and the effect upon him and his family of this offence
(9) the applicant's conduct at the scene;.
15.
Mr Baker described the applicant's conduct after the accident as exemplary. It was. He could not have done more. Similarly, his response to the police investigation was unusually frank and open. He provided every assistance, including handing over the incriminating mobile telephone. He made no attempt to deceive the police by handing over another mobile telephone he had with him at the time.
16.
Although Mr Baker did not seek overly to criticise the police or the prosecution for taking nearly a year to reach its decision as to what charge to bring, nevertheless Mr Baker urged the court to bear very much in mind the stress of that period of nearly 12 months, during which the applicant had to live with the prospect of being charged with a very serious offence of causing death by dangerous driving, which he did not commit.
17.
Finally, Mr Baker assured the court that although the applicant was in no way criminally nor morally culpable for causing the death of Mr Gombar, he has had to live with and will continue to live for the rest of his life with the burden of appreciating that it was his vehicle which ultimately contributed to causing Mr Gombar's death.
18.
Mr Baker acknowledged that there is not one law for the rich and powerful and one law for the rest. Conversely, Mr Baker properly urged upon us that the applicant should not be punished more harshly because of his character and achievements. He put before us the applicant's personal circumstances to underline the point he wished to make, that 10 to 15 minutes of recklessness in a lifetime of achievement and public service have cost not only the applicant dear, but they may cost others and particularly vulnerable members of society dear. The circumstances of the offender are always relevant to the sentencing process, and Mr Baker submitted that in this case the applicant has already been punished severely for his recklessness.
19.
Mr Baker acknowledged, as indeed did Mr Paul, that this was a difficult sentencing exercise. It is the kind of case which attracts strong and divergent views as to the appropriate level of penalty. There is little, if any, guidance on cases where texting at the wheel is the essence of the offence of dangerous driving as distinct from an aggravating feature of the offence of dangerous driving. The only guidance brought to our attention is the Sentencing Guidelines Council's Magistrates Courts Guideline, in which categories of dangerous driving are there set out. In ascending order of seriousness, culpability and harm they are:
(1) a single incident where there is little or no damage or risk of personal injury;
(2) an incident(s) involving excessive speed or showing off, especially on busy roads or in a built-up area, or a single incident where there is little or no damage or risk of personal injury but the offender was a disqualified driver;
(3) prolonged bad driving involving deliberate disregard for the safety of others or incident(s) involving excessive speed or showing off, especially on busy roads or in a built-up area by disqualified driver, or driving as described above while being pursued by police.
20.
The first category has a starting point of a medium level community order; the second a starting point of 12 weeks custody; for the third category the Council recommends committal to the Crown Court. Mr Paul confirmed that both the prosecution and the defence in this case suggested to the magistrates' court that it was the appropriate venue for hearing this matter because it fell into the second category, the category for which a starting point of 12 weeks' custody following a contested trial would have been appropriate.
21.
Mr Baker argued forcefully that this case does in fact fall into the second category. He accepts that there was here a prolonged course of bad driving, but suggests that any disregard for the safety of others was reckless rather than deliberate. Wilkie J proceeded on the basis that there was here a deliberate disregard for the safety of others. For our part, we are content to proceed on the basis that the applicant’s disregard for the safety of others was reckless rather than deliberate but it was at the extreme end of recklessness and this offence straddles, therefore, the two most serious categories.
22.
We bear very much in mind, as Mr Baker invited us to do, that the Sentencing Guidelines Council recommends for those first-time offenders who drive at a grossly excessive speed in a built-up area in a way which obviously puts people's lives at risk a starting point, before any consideration of mitigation, of 12 weeks' custody. Similarly, for those who drive with significantly excessive quantities of alcohol in the body the starting point is also one of 12 weeks' custody. Mr Baker sought to persuade us that this case fell into a less serious category than those two.
23.
Having acknowledged the wealth of mitigation available to the applicant, we turn to the aggravating features of this case:
(1) the length of time that the applicant was dividing his attention between his telephone, his control of the car and the road;
(2) the fact that this was a fast road which required every driver to keep their wits about them at all times;
(3) the fact that it was dark;
(4) the fact that the applicant was not only using his telephone and receiving text messages, but he was answering them too, and answering them at significant length. It must have taken considerable focus to perform that operation, even with a familiarity with texting.
24.
The cumulative effect of those factors is such that in our view the judge had no option but to impose a custodial sentence. As Wilkie J put it in his very carefully crafted sentencing remarks:
"It is now well established ... that reading and composing text messages over a period of time constitutes a gross, avoidable distraction ... it is a highly dangerous activity".
We reject Mr Baker's submission, therefore, that this case was not so serious as to justify a custodial sentence.
25.
We turn to the question of whether or not such a sentence should have been suspended. The judge acknowledged that he thought long and hard about this question, as have we. He decided that by reason of the “prolonged, deliberate, repeated and highly dangerous nature of the driving”, only an immediate custodial sentence was justified. We agree. For 10 to 15 minutes in the dark on a motorway the applicant put people's lives at risk and for no good reason. We hope the message has gone out loud and clear that texting at the wheel is dangerous. It does not matter who you are, if you are convicted of an offence of dangerous driving of this kind you may go to prison.
26.
However, given the tenor of Wilkie J's sentencing remarks, it may be that had the applicant been remanded in custody for some weeks pending sentence, the judge may have felt able, in all the circumstances, to impose a suspended sentence. That is, therefore, one option open to us that was not open to him.
27.
The applicant has now all but served his sentence, which, as we have indicated, was not excessive. Given our duty to the public we cannot go as far as Mr Baker requested and wipe from his record a perfectly proper sentence. However, given the very exceptional mitigation available to this applicant, some if it developed before us in open court and some contained in material before us that was not before Wilkie J (which we do not intend to rehearse in any greater detail), we are persuaded that we can take an exceptional course. Accordingly, we are prepared to order that the sentence of 12 weeks stands but that it be suspended for a period of 12 months.
28.
We should like to conclude by expressing our deepest sympathy to the family and friends of Mr Gombar, who paid with his life for his errors of judgment. | {"ConvCourtName": ["data not available"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["data not available"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["at the first opportunity"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["magistrates' court", "Sheffield Crown Court"], "Sentence": ["12 weeks"], "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": ["mobile telephone he had been using"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["(1)the length of time that the applicant was dividing", "(2)the fact that this was a fast road"], "MitFactSent": ["immediate pleas", "previous excellent character", "“limited” nature of the offence", "extremely positive pre-sentence report", "applicant's conduct", "delay in the decision to prosecute", "genuine remorse", "applicant's own significant personal injuries", "testimonials"], "VicImpactStatement": ["data not available"], "Appellant": ["Applicant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal against sentence"], "AppealGround": ["this court should quash the sentence of imprisonment, essentially because it would be in the greater good."], "SentGuideWhich": ["Road Vehicle (Control and Use) Regulations of 1988 and section 42 of the Road Traffic Act 1988", "Sentencing Guidelines Council's Magistrates Courts Guideline"], "AppealOutcome": ["Accordingly, we are prepared to order that the sentence of 12 weeks stands but that it be suspended for a period of 12 months."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["the very exceptional mitigation available to this applicant"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["data not available"], "ConvictPleaDate": ["Don't know"], "ConvictOffence": ["data not available"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["at the first opportunity"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Magistrates' Court", "Sheffield Crown Court"], "Sentence": ["12 weeks"], "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": ["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 evidence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["Prolonged", "Distance /location"], "MitFactSent": ["“limited” nature of the offence", "applicant's conduct", "previous excellent character", "applicant's own significant personal injuries", "genuine remorse", "immediate pleas", "delay in the decision to prosecute", "extremely positive pre-sentence report", "testimonials"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal against sentence"], "AppealGround": ["this court should quash the sentence of imprisonment, essentially because it would be in the greater good."], "SentGuideWhich": ["Sentencing Guidelines Council's Magistrates Courts Guideline", "Road Vehicle (Control and Use) Regulations of 1988 and section 42 of the Road Traffic Act 1988"], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["the very exceptional mitigation available to this applicant"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 142 |
No:
2004/4713/B2
Neutral Citation Number:
[2004] EWCA Crim 2907
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Tuesday, 2 November 2004
B E F O R E:
LORD JUSTICE CLARKE
MR JUSTICE GIBBS
HIS HONOUR JUDGE FABYAN EVANS
(Sitting as a Judge of the CACD)
- - - - - - -
R E G I N A
-v-
JESS MORRIS
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR D HAROUNOFF
appeared on behalf of the APPELLANT
MR T ADEBAYO
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE CLARKE: On 16th July 2004, in the Crown Court at Lewes, after a five day trial before His Honour Judge Scott-Gall and a jury, the appellant, who was 29, was convicted on two counts. On count 1 he was unanimously convicted of wounding with intent to cause grievous bodily harm and was sentenced to five years' imprisonment. On count 2 he was convicted by a majority of 10 to 2 of common assault and was sentenced to four months' imprisonment concurrent. The jury had deliberated for some ten-and-a-half hours. He appeals against his conviction and sentence by leave of the single judge, Bean J.
2.
We give first an overview of the facts. On Saturday 17th November 2003 Nathan Hunt and his friend Simon Annis went for a night out in Brighton. Some time after 2.00 am they met up with Mr Annis's girlfriend Sara Heath and made their way home. The appellant and his girlfriend, Lola Gray had been out to the theatre that evening and later met Donna Beadle, a friend of Lola's. They had a meal together and then went on to a nightclub. The appellant and Lola left the club in the early hours of the morning, a little before Miss Beadle, and decided to book into a hotel or a bed and breakfast for the night. We will refer to the principal protagonists by their Christian names, as the judge did in the course of his summing-up.
3.
CCTV footage shows the appellant and Lola walking westwards down Russell Road by 2.20 am. According to the appellant, on the way he and Lola saw Nathan, Simon and Sara, as they proved to be, in Russell Road, although they denied having seen the couple at that stage. CCTV shows the appellant and Lola walking back eastwards along Russell Road some 28 minutes later. They had by then changed their plan and decided to return home.
4.
Nathan, Simon and Sara were sitting on the kerb in Russell Road when they saw the appellant walking on the opposite side of the road with Lola. They appeared to be arguing. CCTV showed Nathan and Simon approach the couple, with Sara following. Some time later a confrontation took place during which Nathan's ear was bitten, indeed bitten off in part, and Sara was punched in the mouth. During the attack Lola had retreated and was some distance away. After the incident the appellant left the scene. Donna Beadle then saw Lola and Sara together outside a pub. She lent Sara her phone to make a call and then left with Lola in a taxi. As a result of the incident, Nathan was taken to hospital to have his ear treated. A third of it had been completely severed. There was no other injury to either Nathan or Simon. The appellant sustained bruising to his eye, his legs and to his head, to which we will return later.
5.
It was the prosecution case that the appellant made an unprovoked attack on Nathan who had intervened to protect Lola. He then turned his attention to Sara and punched her in the face. It was the defence case that the appellant had enquired about the welfare of Sara, as a result of which Nathan and Simon pursued him and mounted an unprovoked attack on him. The appellant responded only in self-defence. Whilst being held in a bear hug by Nathan, he was receiving blows and kicks and bit Nathan's ear to stop the attack. He did not punch Sara in the face or if he did it was purely by accident. The defence argued that the accounts given by the prosecution witnesses were inconsistent.
6.
Two grounds of appeal are advanced by Mr Harounoff on behalf of the appellant. The first ground is that the judge's summing-up was materially defective in that:
(1) his review of important factual detail was wrong;
(2) he purported to give the jury "directions" on issues of fact in dispute in a manner that was prejudicial to the appellant's case;
(3) he omitted to refer to significant and salient features of the defence case; and
(4) his review of the evidence was heavily partial towards the prosecution case and disparaging of aspects of the defence case. Mr Harounoff submits that the cumulative effect of these deficiencies was to make the appellant's conviction unsafe.
7.
The second ground of appeal is that the judge was wrong to refuse to give a full or modified good character direction after the appellant had introduced his prior spent convictions for dissimilar and dated offences into evidence. Further, the appellant's case was prejudiced by the fact that the trial judge had by way of contrast given what may have appeared to be a good character direction in respect of the complainant Nathan.
8.
We consider the second point first. On 8th November 1994, when the appellant was 18, he had pleaded guilty to three offences of handling, possessing a false instrument and theft. The offences arose as a result of his finding $500 worth of travellers cheques. He tried to cash them with the use of a false document. He was sentenced to 80 hours community service. It was submitted to the judge that he should give the jury either a full or modified good character direction since the convictions were spent and were dissimilar to the allegations with which the jury were concerned. The judge was told that the defence would call a number of character witnesses and would introduce the spent convictions in evidence. It was submitted that at least a full propensity direction should be given. The judge refused the application or applications.
9.
Mr Harounoff correctly accepts that the judge had a discretion whether to give a direction of the kind suggested -- see
Nye
75 Cr.App.R 247, Archbold 2004 paragraph 8-184 to 186. He had a discretion whether to give a good character direction. The judge directed the jury in these terms, beginning at page 10 line 19:
"The next direction concerns your approach to the fact that the defendant has the three previous convictions. It has been given in evidence the fact that he has convictions for theft, handling stolen property and having a forged instrument, those convictions recorded in November 1994, for two reasons. First, he has attacked the character of the three primary prosecution witnesses and he has established, or sought to establish, that he is a man of good character.
So what is the relevance of the defendant's convictions in this case? The only reason why you have heard about his previous convictions is that knowledge of the character of the defendant may assist you to judge the truthfulness of his evidence when you come to consider this matter. You must not automatically assume either that the defendant is guilty or that he is not telling the truth just because he has these previous convictions. His convictions are not relevant at all to the likelihood of his having committed the offence, nor are they evidence that the defendant committed the offence for which he stands trial now. They are relevant only as to whether you can believe him. You do not have to allow these convictions to affect your judgment. It is for you to decide the extent to which, if at all, his previous convictions help you about that. He pleaded guilty at the Magistrates Court, you have been told, and has called a body of evidence, which I will summarise in due course, from witnesses who have spoken very positively about him."
As he said he would, the judge later summarised the evidence as to good character from no less than seven witnesses whose evidence was put before the jury either orally or in statement form.
10.
Mr Harounoff submits that the judge should have given a full good character direction. That would classically have involved two limbs. It would have involved telling the jury that the applicant was a man of good character, which was evidence that they should take into account in his favour in two ways: first, as to credibility, and second, as to dispensation.
11.
The standard Judicial Studies Board direction proposes this formula:
"In the first place, the [appellant] has given evidence, and as with any man of good character it supports his credibility. This means it is a factor which you should take into account when deciding whether you believe his evidence.
In the second place, the fact that he is of good character may mean that he is less likely than otherwise might be the case to commit this crime now."
We shall call those the "credibility limb" and the "propensity limb" respectively.
12.
In the instant case, the judge decided to give neither limb of that direction because he decided that in the light of the appellant's previous convictions he was not a man of good character, even though the convictions were spent. Mr Harounoff correctly accepts that the judge was entitled to treat the appellant as a person who was not of good character; he had a discretion how to treat him. In our judgment the judge was entitled to give the direction which he did in place of the credibility limb. The defence put the appellant's convictions before the jury. They really had no alternative but to do so given the fact that, quite apart from the defence attack on the prosecution witnesses, it had entirely understandably been decided to adduce positive evidence as to good character before the jury. The judge did not think it appropriate to give the jury a modified good character direction. It was well within the ambit of his discretion whether to do so or not, at any rate in relation to the credibility limb. Although the convictions were spent and even though the appellant had pleaded guilty to them at the time, the 1994 offences were offences of dishonesty. In these circumstances, in our judgment, the judge was entitled in the exercise of his discretion to direct them as he did that they were entitled to take the previous convictions into account in assessing the truthfulness of the appellant's evidence.
13.
However, Mr Harounoff submits that the judge should have given the propensity limb of the standard good character direction in full. He submits that the judge was wrong to refuse to do so and instead to give what is part of the standard bad character direction namely:
"You must not automatically assume either that the defendant is guilty or that he is not telling the truth just because he has these previous convictions. His convictions are not relevant at all to the likelihood of his having committed the offence, nor are they evidence that the defendant committed the offence for which he stands trial now. They are relevant only as to whether you can believe him. You do not have to allow these convictions to affect your judgment. It is for you to decide the extent to which, if at all, his previous convictions help you about that."
That is a quotation from the standard bad character direction and, as can be seen, the judge included it in his summing-up word for word. Mr Harounoff submits that the judge should have given a positive propensity direction along the lines of the propensity limb which we quoted a little earlier.
14.
Mr Harounoff submits that given that the previous convictions were for dishonesty and quite apart from their age were of an entirely different type of offence, the judge should have directed the jury that the fact that, apart from those historic offences of dishonesty, he was of good character might mean that he was less likely than otherwise might have been the case to commit the crimes alleged now. Mr Harounoff relies upon a number of decisions including
R v MacDonald
(unreported) 25th March 1999 and
R v Gray
[2004] EWCA Crim. 1074
and the cases there cited including
Vye
[1993] 97 Cr.App.R 134
;
R v Teasdale
[1994] 99 Cr.App.R 80
;
R v Challenger
[1994] Crim LR 202;
R v H
[1994] Crim.L.R 205;
R v Heath
(unreported) 1st February 1994;
R v Durbin
(1995) 2 Cr.App.R 84;
R v Zoppola-Barrazza
[1994] Crim.L.R 833;
R v Aziz
[1996] 1 AC 41;
R v Martin
[2000] 2 Cr.App.R 42; and
Shaw v The Queen
[2001] 1 WLR 1519
.
15.
In
Gray
the facts were startling in that the conviction the subject of the appeal was for murder, whereas some time earlier, on 28th November 2000, the defendant had pleaded guilty to driving with excess alcohol.
16.
In
MacDonald
the defendant was charged with indecent assault but had a previous conviction for shoplifting in 1984. The conviction was put before the jury but the judge did not mention character at all in the course of his summing-up. In giving the judgment of this court in
MacDonald
, Roch LJ said at page 5:
"Two matters are not in doubt. First, where an accused has a spent conviction or spent convictions the judge has a discretion to allow him to be treated as a person of good character. That is the case of Nye... Second, that in such situations it is not permissible to represent the accused as a person with no previous conviction because to do so is to mislead the jury and the jury must never be misled. That is to be found in the judgment of this court in the same case.
Normally the jury should either be told that the defendant has the previous conviction or convictions, that it, or they, are spent (if indeed they are spent convictions); that they are (if this is so) of an entirely different character from the offence or offences for which the defendant is being tried, and (if again it is so) that they are offences to which the defendant pleaded guilty. The judge can then direct the jury - and in our judgment should direct the jury - that the jury may think it right to treat the defendant as a person of good character. If the jury do think that to be right and fair, then that is a matter to be taken into account in the defendant's favour when considering his value as a witness and the weight of his evidence. Moreover, it is a matter to be taken into account in his favour when considering whether he is the sort of person who is likely to have committed the offence or offences for which he is being tried.
Once the judge, in the exercise of his discretion, does rule that a defendant with previous spent convictions may be treated as a person of good character, the judge should give the type of direction we have indicated as part of his summing-up. However, that is not, as Mr Green submitted, an end of the appeal. The question still remains whether the omission to mention good character in the summing-up renders these convictions unsafe."
17.
In that case the court held that the conviction was unsafe. That was not, however, a case quite like this where, as we have held, the judge was entitled to hold that the appellant was not a man of good character. The focus of the debate in
Gray
can be seen from paragraph 39 of the judgment of Rix LJ giving the judgment of the court, as follows:
"On this appeal, Mr Lodge takes a slightly different position. He does not found himself so much on the discretion referred to in
Nye
in relation to spent convictions, but on the more recent authorities deriving in particular from R v Vye...Durbin...and Aziz...(see Archbold, 2004 at paras 4-406/9) relating to the importance of the second, propensity, limb of the good character direction and to the need to give a full good character direction, covering both credibility and propensity in cases where past misconduct can be regarded as irrelevant or of no significance in relation to the offence charged. He submits that the judge therefore erred in giving only a reluctant direction as to credibility and none at all as to propensity, and that only after rather than before he reviewed the evidence for the jury."
18.
It can be seen that again
Gray
was not a case quite like this. In
Gray
the court analysed the authorities between paragraphs 41 and 55. So far as we can see, there is no case in which the court has held that the propensity limb of the good character direction should have been given even where the judge properly regarded the defendant as otherwise than of good character. However that may be, the principle identified in the cases seems to us to be point to the conclusion that, albeit suitably modified in a case of this kind, the propensity limb should be given -- see the statement from the judgment of Roch LJ in
MacDonald
, which we have quoted above, and see the summary of the principles set out by Evans LJ, giving the judgment of the court in
R v Durbin
and quoted by Rix LJ in paragraph 50 in
Gray
, especially at paragraph 50(2) and (3); and see also
R v Aziz
per Lord Steyn at page 50G to 51A quoted by Rix LJ at paragraph 52.
19.
In paragraph 52, Rix LJ said this:
"Lord Steyn, in giving the leading speech said that 'in recent years there has been a veritable sea-change in judicial thinking' in this area and that
Vye
was the culmination of a development from discretion to rules of practice. He also posed the question: 'why should a judge be obliged to give directions on good character?' and said:
'The answer is that in modern practice a judge almost invariably reminds the jury of the principal points of the prosecution case. At the same time he must put the defence case before the jury in a fair and balanced way. Fairness requires that the judge should direct the jury about good character because it is evidence of probative significance. Leaving it entirely to the discretion of trial judges to decide whether to give directions on good character led to inconsistency and to repeated appeals."
Rix LJ summarised the principles to be derived from the authorities in paragraph 57, although he was not there considering a case quite like this.
20.
It appears to us in this case that the judge should have given a propensity direction of the kind identified by Mr Harounoff, namely that apart from the historic offences of dishonesty he was of good character which may mean that he was less likely than otherwise might have been the case to commit the assaults alleged. The judge did not go so far.
21.
Is the conviction nevertheless safe? We are conscious that there are now many cases in which this court has held that the failure to give a full character direction is of such potential significance that it would be wrong to hold that the conviction was nevertheless safe. However, each case depends on its own facts. Here we have reached the conclusion that, subject to the points raised in ground one of the appeal, the conviction is safe. We do so for this reason. The judge set out the character evidence called on behalf of the appellant in considerable detail at page 27 and pages 34 and 35 of his summing-up. In each case the judge highlighted the evidence of kindness, honesty and lack of violence or aggression in the appellant's make-up or character. Typical examples were that he was never violent and never lost his temper. Although the judge did not spell out the consequences of this evidence, it must have been entirely apparent to the jury what its relevance was. It was relevant and can only have been relevant to the likelihood, or more accurately the unlikelihood, of the appellant acting in the violent way suggested by the Crown. Thus it led to the conclusion that it was unlikely that the appellant committed the offences alleged. That, in our opinion, was sufficiently obvious that it does not appear to have occurred to anyone that it was necessary to spell it out separately in relation to the character evidence.
22.
In these circumstances, we have reached the clear conclusion that the propensity limb which we think should have been given could not conceivably have made any difference to the verdict of the jury. We have no doubt that the jury would have reached the same conclusion. That is subject to two points. The first is that Mr Harounoff further submits that by way of contrast with his direction as to the appellant the judge gave what appeared to be a good character direction in respect of the complainant. The passage complained of was in these terms at page 40 line 23 of the summing-up:
"In considering count 1 you should, with respect, ignore what Mr Harounoff concluded his submissions to you with yesterday, when he said, somewhat inelegantly: 'The yob ended up worse off'. That, you may think, is a most unhelpful assertion. There is nothing in the evidence to suggest that culturally, socially or by disposition Nathan Hunt is a yob, whatever 'a yob' means in the context of this case, when or whether compared to the defendant or anybody else. That was not, you may think, a very helpful assertion."
23.
The submission is that that amounted to a good character direction so far as Nathan Hunt was concerned. However, in our view it did not. To say that someone is not a yob is to say very little about his character. A person may be honest or dishonest, telling the truth or lies, whether or not he can fairly be described as a "yob".
24.
Mr Harounoff further submits that the reference to disposition in the passage just quoted is objectionable on the same basis that it is objectionable for the Crown to call positive evidence as to the credit of its witnesses. We of course accept that there is such a principle -- see for example
R v Crane
(unreported) 18th January 2000; and
R v Errol Hamilton
(unreported) 26th January 1998. That principle does not however, in our judgment, apply here because the judge was not pointing to the complainant's good character.
25.
The second point raises all the issues raised by ground one of the appeal to which we now turn. It is in short that the summing-up was defective. The first point made under this head, as amplified in Mr Harounoff's advice and indeed in his oral submissions, is that the judge's review of important factual detail was wrong and that despite correction by counsel for both the prosecution and the defence the judge persisted in giving an inaccurate summary of the evidence. There is, in truth, a considerable overlap between the four aspects of ground 1 of the appeal which we set out earlier.
26.
In considering detailed factual points of the kind relied upon here, it is important to have in mind the function of the judge in summing-up a case to the jury. It is not to repeat all the evidence, or to analyse each of the points made on the evidence by counsel. It is to put the facts and evidence fairly before the jury in the context of the issues as they have emerged so that the jury can perform their function which is to determine where the truth lies and to determine the issues in order to decide whether or not they are sure of guilt on each count.
27.
To this end, at the very beginning of his summing-up, the judge entered this standard but important caveat, having told the jury that it was for them alone to decide the facts:
"If, during my summary of the evidence, and I will not repeat everything that has been said in the trial, I appear to you either to have a view of the evidence or of the facts, or even a perceived view, with which you as a jury do not agree, well reject my view or my perceived view. You are not here to rubber-stamp what you think the judge might be thinking. If I mention or emphasise evidence that you consider to be unimportant, then again, disregard that evidence. It is your judgment on the weight of the evidence that counts, again, not what you think my judgment might be. Again, if I leave out a fact or a body of evidence that you consider to be important, follow your own view and take that evidence very much into account."
Mr Harounoff makes a number of detailed complaints about the summing-up, to which we should briefly refer. We take them in the order in which they appear in his advice, although he put them in a somewhat different order in the course of his extremely helpful oral submissions made yesterday.
28.
One
. He correctly says that a central issue for the jury was who was the primary aggressor. The judge identified this key issue near the beginning of his summing-up. He also set out the substance of the evidence of the witnesses on either side. However, Mr Harounoff complains that the judge failed to deal adequately with the absence of injury to Nathan, other than the fact that his ear was bitten off. He had submitted to the jury in his closing speech that the absence of such injuries was inconsistent with the Crown case that Nathan and Simon were the victims of a violent attack by the appellant. He relies upon this statement of principle in the judgment of Henry LJ giving the judgment of the court in
R v Amado-Taylor
(unreported) 27th March 2000:
"... counsels' closing speeches are no substitute for a judicial and impartial review of the facts from the trial judge who is responsible for ensuring that the defendant has a fair trial."
We entirely endorse that principle; just as we accept the statements of principle to similar effect by Rose LJ giving the judgment of the court in
R v Farr
(unreported) 8th December 1998, where this court allowed an appeal in a case where the summing-up was unbalanced and generally unfair in tone to the defence and which, as Rose LJ put it at page 7:
"... has many characteristics of a speech for the prosecution: prosecution witnesses who assisted the defence were belittled; prosecution points were made hard on the heels of such aspects of the defence as were referred to; several important aspects of the defence were not referred to at all."
Each case however depends on its own facts. The judge is not obliged to reiterate every point made by either the prosecution or defence, but as we have indicated must put the case, including the defence, fairly before the jury.
29.
In this case the judge recited the evidence of the Crown witnesses on the one hand and the evidence of the appellant on the other as to how the fight began. We shall consider some further specific aspects of the evidence in a moment, but in our judgment he was not obliged to go further than he did. So far the injury to the Crown witnesses was concerned, there is no suggestion in the summing-up that with the important exception of Nathan's ear which was bitten off, they sustained any injuries at all.
30.
Two
. Mr Harounoff complains that the judge failed to correct a factual error relating to the motivation behind the intervention of Nathan and Simon which he made in the course of his summing-up. The judge first said this at page 6:
"The victim, Mr Hunt, and his friend, Simon, the Crown say intervened to protect the defendant's girlfriend, who they thought was either being assaulted or was about to be, and that during the course of that intervention, which was entirely placid, the defendant completely flipped, that he lost control of himself, attacking first Simon and then Nathan, and that whilst grappling with Nathan, having grabbed him in a bear-hug, he quite deliberately fastened on to Mr Hunt's left ear and chewed the top third of it off, a process, the Crown submit, requiring considerable force, application and deliberation. The Crown submit that act is the clearest evidence of an intention to do grievous bodily harm, albeit bitterly regretted later."
31.
At the end of the day on which the summing-up began, during which the judge had summarised the evidence, he said this:
"Mr Harounoff, have I missed out anything that I ought to remind the jury of, or, more importantly, misstated a fact?
MR HAROUNOFF: There are two matters of fact.
JUDGE SCOTT-GALL: Yes, tell me about them.
MR HAROUNOFF: The first matter is that Nathan Hunt, both in chief and in cross-examination, did state the reason for his intervention was because he thought the defendant was about to attack Sara Heath and he gave evidence that Sara Heath had gone on ahead.
JUDGE SCOTT-GALL: Yes. Let me just consider that, because I do not think that is my note. I do not have a note of that, but I reminded the jury of how Sara tried to attend to the female, that is Lola, 'and the female said: "Okay, there is no problem here" and he then turned his attention on us.' If that is wrong I accept it from you if I have wrongly noted it.
MR HAROUNOFF: I am grateful.
...
MR ADEBAYO: I will look in cross-examination.
JUDGE SCOTT-GALL: Mr Harounoff, if that is your note, I do not maintain that my note is verbatim and perfect.
MR HAROUNOFF: I am grateful. The other matter is this. Your Honour indicated that Sara Heath had denied that she had had an argument with Simon Annis, which, of course, is correct, she did deny it, but Simon Annis, when he gave evidence, accepted that he had had an argument with Sara Heath.
JUDGE SCOTT-GALL: Yes. 'We had an argument. Sara was sitting on the kerb because me and Sara had had an argument', and when she was asked about it she said: 'We were having a talk, it wasn't an argument.' So there we are.
MR HAROUNOFF: I am grateful.
JUDGE SCOTT-GALL: Mr Adebayo?
MR ADEBAYO: Your Honour, that is correct. Can I just confirm that I have a note in cross-examination of Mr Hunt, who said: 'He ran to Sara Heath and thought going to hit her, so we followed him'.
JUDGE SCOTT-GALL: There we are, members of the jury, counsel have rightly put the record straight."
The whole of that exchange occurred in the presence of the jury.
32.
In the course of his submissions Mr Harounoff has submitted that the summing-up indicates bias in favour of the Crown on the part of the judge. We are bound to say that the extract from the summing-up and the exchanges which we have just quoted, strongly contradicts the suggestion of bias. We there see the judge being anxious to ensure that the evidence was correctly put before the jury. We see no basis upon which the judge could be criticised for his approach to that particular part of the evidence. However, Mr Harounoff submits that the judge again misinformed the jury the next morning. On the next morning, before sending the jury out, the judge posed eight questions which he said "May help you on your steps towards reaching a verdict."
33.
In this particular regard Mr Harounoff complains about the judge's third question. The judge put the third question thus (page 38 line 13):
"Three. It is the evidence of Mr Hunt, Mr Annis and Miss Heath that they became genuinely concerned by what they saw and heard going on. Were they telling you the truth when they said that they went to help the female who they thought was in some sort of personal danger, or were the two men spoiling for a fight, that is Mr Hunt and Mr Annis? If so, why? This, you may think, is really the first important fact that you have to address: who was or who were the actual aggressors? Was the defendant so enraged with what he thought his girlfriend had been up to behind his back with another man that he began to lose control of his emotions? Did the arrival of two young men on the scene, taking the side of his girlfriend, further enrage him so as to act wholly out of character?"
Mr Harounoff says that to put the question like that involved, as he puts it, "ironing out" the inconsistency between the evidence of the prosecution witnesses which he had highlighted the evening before. However, we see no basis for this criticism. The judge had corrected the error of fact the previous evening. Question three did, in our view, identify a crucial question for decision. It was of course a matter for the jury which evidence they accepted. In making that decision they were aware, from the correction prompted by Mr Harounoff, that the Crown witnesses were not entirely consistent on that point or indeed no doubt every point. Experience suggests that that is often the case. We should add in this regard that we have now seen a transcript of Nathan's evidence from which it appears that he was first concerned about Lola's safety and a little later about Sarah's safety. In this regard we accept Mr Adebayo's analysis of that evidence.
34.
Three
. Mr Harounoff correctly observes that the case for the Crown and the case for the defence were mirror images of each other in that the Crown contended that the call received by the defendant's girlfriend on her phone had caused the defendant to "flip", whereas the defence contended that Mr Annis and Miss Heath were engaged in an argument probably involving Mr Hunt. Simon Annis confirmed that an argument had taken place. Mr Harounoff further correctly notes that the judge made the nature of the Crown's case clear to the jury. However, after the judge had posed the eight questions, to which we have referred, and just before the jury retired, Mr Harounoff said this in the absence of the jury:
"Your Honour, I do not wish to sound disrespectful, but the questions posed at this stage of the proceedings just before the jury go out, in my respectful submission, ought to be balanced. In so far as the first question that your Honour suggested that they consider, namely, whether the dispute between the defendant and Lola may have effectively triggered the defendant to become enraged, whether that has any bearings on the proceedings ought to be balanced, in my respectful submission, by a direction to them to consider whether the argument between Sara Heath and admitted by Simon Annis to have taken place, whether that could have fuelled any feelings of outrage and loss of control by the prosecution witnesses. It is simply, in my submission, unfair to focus the jury's attention on an allegation that a phone call between the defendant and his girlfriend could have triggered violence, and not to remind them of the fact that Simon Annis admitted that he had had an argument with his girlfriend and that that could equally have fuelled it."
The following exchange then took place:
"JUDGE SCOTT-GALL: I hear that, but it was never suggested, either directly or by inference, that because of an argument, such as it is, between Sara and Simon, and she never accepted there was an argument, caused them to go and take it out on the defendant.
MR HAROUNOFF: She never admitted that; he did. That having been established, I am entitled to comment on it, which I did, but at this stage, to ask them to focus on a disagreement between Lola ----
JUDGE SCOTT-GALL: I am quite happy to invite the jury to put that in the balance if you wish me to.
MR HAROUNOFF: I do.
JUDGE SCOTT-GALL: I will, but let me underline the fact that it was never suggested that if there had been an argument between Simon and Sara, that it was that argument that led Nathan and Simon to chase down the road and launch a vicious, savage attack on the defendant.
MR HAROUNOFF: It was never suggested because, obviously, I do not have closed-circuit television video evidence of that.
JUDGE SCOTT-GALL: Which is perhaps why it should not go in the balance, but if you want me to I will."
A little later the judge said this, in the absence of the jury:
"I will certainly, if you would like, which you do, remind the jury that there was an argument admitted by Simon between him and Sara and they are to consider that, in the scale of things, as to whether that might have prompted the two men to join together. I will do that, if you like."
The judge then said this to the jury:
"Mr Harounoff rightly asks me to remind you when I was posing one of the questions whereby I was inviting you to consider the extent of the disagreement, if there was a disagreement between the defendant and Lola as they were progressing back towards West Street, to remind you that there was simultaneously taking place, certainly, according to Simon, an argument between him and Sara, although Sara herself did not accept they were having an argument, they were having a discussion, as to whether that, if there was such an argument, affected the conduct of Nathan and Simon in some way as to perhaps cause them to run down and decide to attack the defendant. It is a question of putting all those matters into the balance."
35.
Mr Harounoff complains that the judge put the point in a dismissive way. We do not, however, agree. The judge drew the jury's attention to the difference between the evidence of Simon on the one hand and Sara on the other. He concluded in what in our view was a wholly unobjectionable way by saying that it was a question of putting all those matters into the balance. The balance was of course a balance for the jury to strike.
36.
Four and five
. Mr Harounoff submits that the judge minimised and sought to disparage the extent of the medically confirmed injury sustained by the appellant. His complaint arises out of the seventh of the judge's eight questions, which the judge put thus:
"Seven. Your answer to the question: 'Who started the fight and who was the primary aggressor?' will assist you in following my directions as to your approach to the defence in this case, that is on count 1, namely, that the defendant was acting throughout in self-defence, and in considering this you need to ask yourselves whether the injuries caused to the defendant, which again are entirely a matter for you as to their extent and gravity, as to whether or not you consider them to be, on the scale of this case, relatively minor, were they caused by the two prosecution male witnesses in course of an attack described as 'savage and vicious' to all parts of the defendant's anatomy, or, are you satisfied by the Crown's evidence that these relatively minor injuries, if that is your finding, were a consequence of Simon attacking the defendant in order to get him off Nathan, who was screaming for help because his ear was being bitten off, a critical issue of fact you need to address, because depending on your answer to that depends on whether or not you conclude the defendant has exaggerated the attack upon him and his resultant injuries, and if that is your finding you ask yourselves: well why has he?"
37.
Mr Harounoff raised the same or a similar point with the judge at the end of his summing-up and the following exchange occurred:
"The second matter is this. The description of the injuries sustained by the defendant as possibly being minor or a matter for them to consider as to whether it was minor, in my submission, ought to be balanced by a recital of what the evidence was, the evident of Dr Mockett, who described ----
JUDGE SCOTT-GALL: I reminded the jury of his evidence yesterday.
MR HAROUNOFF: Forgive me, but asking the jury whether those injuries were, in fact, minor might have an unfair effect on their deliberations.
JUDGE SCOTT-GALL: With respect, it is part of their investigation into the facts of the case in having to balance Dr Mockett's unchallenged diagnosis.
MR HAROUNOFF: It was challenged.
JUDGE SCOTT-GALL: I don't think the Crown ever challenged Dr Mockett that he did not find bruising to the back of the head, bruising to the calfs etcetera, as to whether, in fact, in the jury's judgment, having regard to the description of the attack, life-threatening, whether, in fact, the injuries bear that out. That is the point of the question.
MR HAROUNOFF: The description to the jury to consider whether these were minor injuries ought to be balanced by a contrary description, namely: do you think that the injuries were, in fact, quite serious?
JUDGE SCOTT-GALL: Well, I would have that was implicit, because I said it was entirely a matter for them whether they thought they were minor.
MR HAROUNOFF: There is a danger that the jury may feel that your Honour is communicating to them your view that you think that those injuries were minor, when, in my submission, the medical evidence goes wholly the other way.
JUDGE SCOTT-GALL: Mr Harounoff, I think that is treating the jury with a lack of intelligence, which is unfair to them."
The judge had indeed reminded the jury about the evidence of Dr Mockett the previous day at page 32 line 12 in this way:
"Dr Mockett examined the defendant at his surgery. He has been the family GP for a number of years, 16 years. His observations were noted: bruising to the left eye, substantial bruising to the side and the back of the head, which he could feel through the defendant's thick hair. As a result, he gave him a form to enable him to go and have a skull x-ray at the hospital. There was some bruising to his back and some bruising to his legs. He found no injuries to his front, and he thought that the bruise to the legs and calf muscles were consistent with a stamping-type injury where a foot has been brought down onto the defendant's legs. He said the consequence of that sort of impact is to have a diffuse bruise, which takes a few days to materialise. He agreed that, in fact, there was nothing in his notes about him considering that there was evidence of stamping injuries and he only decided to reduce to writing the fact that his diagnosis was that there was evidence of stamping when he wrote a letter to the solicitors in March of this year, and the Crown make the point that that is probably why there was no reference to stamping in the prepared statement, because the doctor had not diagnosed it and neither had it been complained of and the defendant has latched onto that subsequently. It is a matter entirely for you."
The reference to the prepared statement was a reference to the statement prepared by the appellant before he attended at the police station on the first occasion.
38.
Mr Harounoff makes these points:
1. that the judge was wrong to say that the Crown made the point he said it did in the passage just quoted;
2. that in that passage the judge unfairly undermined the evidence of a recognised medical practitioner. He relies in particular on the words "latched on to"; and
3. that in the passage at the end of his summing-up the judge declined Mr Harounoff's invitation to remind the jury what the medical evidence was, including the evidence of the police surgeon Mr Knight.
39.
As to the passage at the end of the summing-up, the judge was in our view entitled to take the view, as was the case, that he had already reminded the jury of the medical evidence and to say that implicit in his invitation to the jury to consider whether the injuries were minor was an invitation to consider whether they were more than minor, that is quite serious. It was entirely a matter for the jury. We agree with the judge that one should respect the intelligence of jurors. As to the evidence of Dr Knight, we note that Mr Harounoff did not expressly invite the judge to refer to that particular evidence at the time. It has never been the responsibility of a judge to refer to every piece of evidence in the case. As to the earlier part of the summing-up, the judge was entitled to ask the jury to consider the questions he did. The considerations he raised were relevant and were matters for the jury. It was a matter for them what view they took of the doctor's evidence.
40.
The particular point being made by the Crown was that there was no reference to stamping in the appellant's prepared statement and that that pointed to the fact that no stamping had taken place. That was undoubtedly a legitimate forensic point for the Crown to make and for the jury to consider. Whether the appellant latched on to the opinion of the doctor, in circumstances in which that opinion, so far as stamping is concerned, was expressed only after the prepared statement was made, was a matter for the jury. It was a matter for them to say whether the appellant had indeed latched on to that evidence in order to embellish his evidence by saying that stamping had taken place. All these were legitimate matters for the jury to consider. There is no substance in the point, in our view, that the judge did not set out the findings of the doctor as to the injuries which he had found on the appellant.
41.
Six
. Mr Harounoff complains about the judge's approach to the evidence of Carly Smith. The judge said at page 33 line 9:
"She is a good friend of the defendant and his sister. She cannot remember the precise date it was that she was out clubbing in Brighton, but she was making her way home up to get a taxi in the taxi rank at West Street. She had been to The Escape nightclub with two friends when she witnessed a fight. What she saw was two guys hitting another guy. They were kicking and punching the other guy, who was on the ground, and the fight lasted a good five to ten minutes, maybe longer. After she had passed the fight the next thing she sees is Jess run past her holding his face. She never saw a bear-hug between two men. The question for you is whether what she saw had anything to do with what involved Nathan, Simon and the defendant, because it has never been suggested that anybody was stretched out on the ground being punched and booted, they were all upright, so it may be that either Miss Smith's memory has failed her or she saw a completely different incident. It is entirely a matter for you whether her evidence helps you remotely."
Mr Harounoff says correctly that there was no evidence that Carly Smith was a good friend of the appellant. The position was, and as we understand it is, that she was a friend of the appellant's sister. Mr Harounoff submits that the judge was here unfairly disparaging the defence evidence in the passage which we have just quoted. He refers in particular to the judge's use of the expression "stretched out on the ground", an expression which nobody had used in the course of the trial. Mr Harounoff points to the fact that in the written statement prepared by the appellant to which we have referred he said, as he did in evidence, that the larger of the two "had tried to grapple me to the ground".
42.
It appears to us that the judge's error in saying that the Carly Smith was a good friend of the appellant is of no significance in judging the safety of the conviction. Miss Smith was a friend of the appellant's sister and the judge was undoubtedly wrong to say that she was a friend of the appellant. Although she certainly knew him sufficiently to recognise him as "Jess" when he ran past her. As to the expression "stretched out on the ground", we recognise that no one else had used the expression. The evidence of the witness was that two men were punching and kicking another man who she thought was on the ground. So if the judge made an error there it was to miss out "she thought", which seems to us to be of little significance. The fact is that no one said that the appellant was on the ground, other than this witness, although on the appellant's evidence the others were trying to grapple him to the ground. The fact remains however that there was no other evidence, as the judge correctly said, that he was on the ground.
43.
Seven
. Mr Harounoff complains that the judge referred to Nathan as "the victim". He was plainly a victim in the sense that, as was common ground, he had had his ear bitten off. We entirely reject the submission that the use of the word "victim" bestowed some kind of judicial imprimatur on the Crown's case -- the jury can have been in no doubt what questions they had to consider.
44.
Eight
. On count 2 Mr Harounoff submits that the effect of a passage in the summing-up was to withdraw part of the defence from the jury. The defendant's defence was that he denied punching Sara. He said in evidence: "I did not punch Sara in the face. I did not lash out at her." It was suggested that she might have been struck inadvertently by either Nathan or Simon who were raining punches on the appellant. The judge put it in this way:
"As to who it was that punched Sara, you may think it was almost certainly not Nathan; you may think it is highly unlikely that it was Simon laying into his own girlfriend. It seems to be common ground that Lola was some distance away, Sara is unlikely to have punched herself, and, by the process of elimination, you may think it was probably the defendant, so the issue is: was it deliberate or was it some sort of accident?"
Mr Harounoff submits that the effect of that passage was to withdraw a straightforward defence from the jury and invite them in terms to conclude that the appellant had indeed assaulted Sara when that allegation had been denied in clear terms.
45.
We do not accept that submission. The jury were reminded of the appellant's case on count 2. The jury were reminded of the prepared statement. Moreover, giving evidence-in-chief the appellant denied being responsible for any of Sarah's injuries. In cross-examination the appellant again denied being responsible but he did say that she might have been caught accidentally by someone's fist. Those parts of the evidence are referred to in the summing-up. Before closing speeches, there was discussion between the judge and counsel concerning the defence to count 2. The defence appeared to be either that it was not the appellant who was responsible for the injury or, if he was, that it was an accident. The judge left the two defences to the jury.
46.
In an earlier passage in the summing-up the judge said this in relation to count 2. He told the jury that before they could convict the appellant on count 2:
"...the Crown must prove two things: that the defendant intentionally applied unlawful force to the complainant. It is the Crown case that the defendant, having freed himself from Mr Hunt, deliberately punched Miss Heath in the face causing the injuries... The defence case is that he did not punch Miss Heath in the face, or, if he did, he did it accidentally. The Crown must make you sure it was the defendant who struck the blow. If you are not sure on that point well then you acquit, but if you are sure of that, the Crown must make you sure that it was not an accidental blow."
A little later he said:
"So the issue on count 2 ... is entirely a factual one. If you are sure that this was no accident but a deliberate blow, well than you will convict the defendant because you will be sure that what he did was to punch Miss Heath in the mouth, both intentionally and unlawfully. If you are not sure on either of those points you will, of course, acquit."
47.
We accept Mr Adebayo's submission that the comments made in the passage complained of did not cross the boundary of acceptable comment. The judge had already made it clear what had to be proved and the jury can have been in no doubt about it.
48.
Nine
. The appellant had stated in his prepared statement that while on Russell Road "I became aware of a group of three people we had passed earlier on that street". The case officer confirmed from CCTV footage that the appellant and Lola could be seen walking hand in hand westwards on Russell Road. The evidence was that they had failed to find a hotel and walked back. The officer confirmed that some 28 minutes had elapsed when the appellant and Miss Gray could be seen walking back in the opposite direction. Mr Harounoff submits that it would have required a great deal of prescience on the part of the defendant at the time he gave his prepared statement to appreciate the point that would be made and in fact he was made at the trial on his behalf. It was suggested to the jury by the defence that the three prosecution witnesses must have been loitering or arguing for 28 minutes that night. The judge put the point in this way:
"... it was never suggested, because nobody thought of it, to either Sara, Nathan or Simon, that they were there static, so to speak, for half an hour or 28 minutes on a cold November's night with Sara sitting on the kerb. It is, you may think, in the context, a rather long time to be sitting out..."
Mr Harounoff submits that that comment could only have confused the jury. It had been specifically put to Nathan by the defence that the appellant and his girlfriend had passed the three prosecution witnesses on two occasions. Nathan responded to this by saying: "No, they passed us only once".
49.
We do not think that there is anything in this point which could conceivably lead to the conviction being unsafe. It is pure speculation what the Crown witnesses might have been doing in the period of 28 minutes to which we have been referred.
50.
Ten
. Mr Harounoff again complains in this context, as in the earlier context, about the judge's attitude to his use of the world "yob". Yet Mr Harounoff himself says that, as he quite properly puts it, "a lapse into colloquialism might be regrettable." We agree. In any event the jury can have been in no doubt what the issues were, including in particular whether Nathan and Simon were the aggressors. We add in this regard that we do not think that the judge can be fairly criticised for not referring specifically to an answer given by Simon in cross-examination. He was asked whether he had been involved in fights previously and he said:
"Me on my own or with Nathan Hunt?"
And after a pause "No". Mr Harounoff says that that is telling but, if it is, its tellingness somewhat escapes us. In any event the failure to refer to that particular piece of evidence cannot possibly, either alone in or in conjunction with any of the other points made, make these verdicts unsafe.
51.
Eleven
. Mr Harounoff submits that the review of the appellant's case was throughout dismissive in both tone and content. We have considered that submission with great care in the light of the authorities. We have tried to focus on each of Mr Harounoff's points both individually and cumulatively but have concluded that neither separately nor together do they support the overall conclusion or make the convictions unsafe. The points relied upon by Mr Harounoff are essentially jury points which we are sure that he stressed before the jury and in our view the judge quite properly identified questions which would assist the jury.
52.
Twelve
. Mr Harounoff complains that at no stage in the summing-up did the judge make the observation reflected by the evidence of the defendant that he had never been involved in a fight in his life and would be inclined to have steered clear from trouble of this sort because he had too much to lose. It is true that the judge did not make such a comment to the jury, but it must have been perfectly obvious to the jury that the appellant had a great deal to lose having regard to his history and experience and the evidence of good character which was put before the jury fairly and
in extenso
.
53.
In all the circumstances, we have reached the conclusion that ground 1(1) of the appeal fails.
54.
Ground 1(2) asserts that the judge purported to give the jury directions on factual issues and in doing so that he improperly trespassed on the jury's domain. This is a reference to the eight questions which the judge posed for the jury's consideration. They were not, in our judgment, directions but merely questions. Moreover they were indeed pertinent questions for the jury's consideration.
55.
Ground 1(3) asserts that the judge failed to remind the jury of significant and important aspects of the defence and ground 1(4) alleges bias. We have essentially dealt with those points in considering the detailed submissions made by Mr Harounoff. We reject the submissions of bias. In our view the defence was fairly and sufficiently put to the jury. The jury had the prepared statement with them when they retired. The judge reminded the jury of the evidence of the appellant and of the other defence witnesses, including the impressive character witnesses. The judge was not obliged to repeat every point made by counsel. This is, after all, a trial by jury. The jury gave careful consideration to the whole of the case, as is evidenced by the fact that they had retired for ten-and-a-half hours. Unfortunately for the appellant he was convicted by them on both counts. Whether he was guilty or not was a matter for the jury. We are firmly of the view that none of the points of criticism made of the judge leads to the conclusion that the verdict is unsafe. It follows that the appeal against conviction fails.
56.
We turn to sentence. Mr Harounoff submits that the sentence of five years is manifestly excessive. The appellant did not plead guilty. It follows that he is not entitled to a discount for a plea of guilty. Further, he was convicted of a serious offence under section 18 of the Offences Against the Persons Act 1861, namely wounding with intent to cause grievous bodily harm. The grievous bodily harm was the biting off of the complainant's ear. On the face of it a sentence of five years' imprisonment would seem to be entirely justified.
57.
However, Mr Harounoff advances a number of compelling points in support of the appeal against sentence. We identify these key points:
1. Although the jury were satisfied, so that they were sure, that the appellant intended to cause grievous bodily harm, Mr Harounoff submits that this was not, indeed cannot have been, a premeditated assault. He submits that the intention must have been formed as it were on the spur of the moment and indeed lasted a very short time indeed. He thus submits that, although this is a section 18 case, it is as close to a section 20 wounding case as a section 18 case can be. We accept that submission. We also accept in this regard that there are no rigid guidelines as to sentence -- see for example
Attorney General's Reference No 132 of 2001
[2003] 1 Cr.App.R (S), [2002] EWCA Crim 1418 where Potter LJ giving the judgment of the court said this:
"Bearing in mind the elastic nature of the circumstances which can legitimately be taken into account as peculiar to an offence or an offender when the judge is faced with the difficult task of sentencing in cases of this kind, this court has been loth to lay down inflexible guidelines in respect of section 18 and section 20 offences."
2. The offence was entirely out of character. Mr Harounoff relies upon the character evidence before the judge and further character references and indeed a petition which the appellant's supportive family have gathered together and which we have seen and considered. Again we accept this submission, although we cannot lose sight of the fact that the jury found the intent, short-lived as it was, proved.
3. The judge expressly held that there was no risk to the public of this appellant offending in this way in the future. We accept that that is a very unusual feature this class of case.
4. We have seen a prison report which is very favourable to the appellant and consistent with the character references to which we have referred.
5. It is fair to regard this as a case in which the appellant, as it has been put, "flipped".
6. We have been referred to a number of cases which suggest that a sentence of five years is excessive. We refer in particular to
Attorney-General Reference No 29 of 2001
[2002] 1 Cr.App.R 60
,
[2001] EWCA Crim. 1491
. We were also referred to a number of other short reports, principally relating to sentences on section 20, which again have been collected together by the appellant's family.
58.
In all the circumstances, we have reached the conclusion that a sentence of five years, even for a section 18 offence on conviction, was manifestly excessive on the facts of this, in some ways most unusual case. The sentence must nevertheless reflect the jury's finding as to intent and the fact that the appellant is not entitled to any credit for his plea. We have reached the conclusion that a proper sentence would have been one of three-and-a-half years' imprisonment. It follows that the sentence of five years is quashed and a sentence of three-and-a-half years substituted. To that extent the appeal against sentence is allowed. | {"ConvCourtName": ["Crown Court at Lewes"], "ConvictPleaDate": ["16th July 2004"], "ConvictOffence": ["wounding with intent to cause grievous bodily harm", "common 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 Lewes"], "Sentence": ["four months' imprisonment", "five years' imprisonment"], "SentServe": ["concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["data not available"], "OffAgeOffence": ["29"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["home"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["friend"], "VictimType": ["Nathan"], "VicNum": ["Sara", "Nathan"], "VicSex": ["her", "his"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["taken to hospital", "CCTV footage"], "DefEvidTypeTrial": ["self-defence"], "PreSentReport": ["data not available"], "AggFactSent": ["sustained bruising", "unprovoked attack"], "MitFactSent": ["entirely out of character"], "VicImpactStatement": ["data not available"], "Appellant": ["appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["conviction and sentence"], "AppealGround": ["judge was wrong to refuse to give a full or modified good character direction", "judge's summing-up was materially defective"], "SentGuideWhich": ["section 18 of the Offences Against the Persons Act 1861"], "AppealOutcome": ["five years is quashed and a sentence of three-and-a-half years substituted", "against sentence is allowed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["manifestly excessive on the facts"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Crown Court At Lewes"], "ConvictPleaDate": ["2004-07-16"], "ConvictOffence": ["common assault", "wounding with intent to cause 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 Lewes"], "Sentence": ["four months' imprisonment", "five years' imprisonment"], "SentServe": ["Concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["data not available"], "OffAgeOffence": ["29"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individuals"], "VicNum": ["2 of 2", "1 of 2"], "VicSex": ["Mixed"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Medical", "Digital"], "DefEvidTypeTrial": ["Self-defence or Justified Action"], "PreSentReport": ["Don't know"], "AggFactSent": ["Injuries", "unprovoked attack"], "MitFactSent": ["entirely out of character"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["conviction and sentence"], "AppealGround": ["judge was wrong to refuse to give a full or modified good character direction", "judge's summing-up was materially defective"], "SentGuideWhich": ["section 18 of the Offences Against the Persons Act 1861"], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence", "against sentence is allowed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["manifestly excessive on the facts"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 236 |
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.
Neutral Citation Number:
[2018] EWCA Crim 2458
Case No.
2017/01866/C1
&
2017/02010/C1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Wednesday 10
th
October 2018
B e f o r e:
THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
(
Lady Justice Hallett DBE
)
MR JUSTICE STUART-SMITH
and
MRS JUSTICE MAY DBE
- - - - - - - - - - - - - - - -
R E G I N A
- v -
Y G M
- - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Ltd 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 R Wright QC and Mr P W Genney
appeared on behalf of the Appellant
Mr N F A Worsley
appeared on behalf of the Crown
- - - - - - - - - - - - - - - -
J U D G M E N T
(Approved)
LADY JUSTICE HALLETT:
Introduction
1. In recent years the criminal justice system has made huge strides in its efforts to ensure that vulnerable witnesses are treated fairly and appropriately during the trial process. This court has strived to ensure that a proper balance is maintained between the interests of a witness and the rights of a defendant. This appeal has been referred to the full court by the single judge for us to consider today whether in this case the balance tipped too far in favour of a child witness and thereby deprived the appellant of his right to a fair trial.
The Background
2.
On 24
th
March 2017, in the Crown Court at Kingston upon Hull, the appellant was convicted of two counts of rape of a child under 13. On 21
st
April 2017, he was sentenced by His Honour Judge Richardson (the trial judge) to a special custodial sentence for an offender of particular concern, on both counts to be served concurrently, comprising a custodial term of sixteen years, with an extended licence period of one year. He was acquitted of count 3 by the jury on the judge's direction and of count 4 by the jury. Counts 3 and 4 related to allegations made by the complainant's sister to her mother. The sister did not give evidence.
3.
The appellant appeals against conviction with the limited leave of the single judge and he renews his application for leave to appeal against sentence.
4.
Reporting restrictions apply to this judgment to protect the identity of the complainant and child witness.
The Facts
5.
The complainant's mother and the applicant had three children. The complainant was the middle child. She was aged seven at the time of the allegations. After the relationship between the complainant's mother and the appellant broke down, arrangements were made for the appellant to see his children once or twice a week. The complainant and her younger sister both told their mother that they did not wish to see their father but did not give reasons.
6.
In July 2016, the mother saw the complainant touching her vagina and she asked her daughter what she was doing. She claimed her daughter told her, "You know, my dad, well that thing my daddy has got down there, he rubbed it on my bum". She said that by "bum" she meant her "front bum", namely her vagina. She said that it happened "a lot" after her parents had separated. She also claimed that her father had told her "not to tell mummy, we would both be dead".
7.
The police were contacted and the children were placed in foster care. The complainant was interviewed by the police.
8.
In the light of the grounds of appeal, it is necessary to rehearse in a little detail the conduct of the Achieving Best Evidence Interview. It took sixty seven minutes. There was an intermediary present and a police officer asked most of the questions. The officer began by asking the child about the last occasion she had been at the hospital and examined by a doctor. The child could not remember why she had been examined. The officer moved the conversation on to her family. This led to her answering questions about her father and how she spent time with him. She was asked about the sleeping arrangements at her father's home but did not disclose any abuse at that stage. On the contrary, she said that she liked to spend time with her father. The police officer then reminded her that they had already spoken about ‘Daddy’ and invited her to draw a picture of what they had discussed. The drawing of a picture of her and her father took several minutes. The complainant, when pressed, told the officers that she did not know how to
draw what had happened and what she had told the officer on a previous occasion.
9.
After about twenty minutes, the complainant said that in the night time her father would take down her trousers. She found it difficult to describe what happened next, but eventually told the officer that her father would "get his privates". She then hesitated, and some time was spent settling her down and fetching a drink. The officer and intermediary then used pictures of people and children, with arrows, to help her explain. Gradually, she indicated that the appellant put his "private" on to her "private" and pressed down hard so that it hurt "in the inside bit". She agreed with the officer's summary of what she was saying, namely that "Daddy put his private inside (her) private and then moved it from side to side". She told the officer that she did not tell anyone at the time because her father told her that if she did, they would die. The officer then went over her complaint twice more in an attempt to elicit further detail, before completing the interview.
10.. The complainant was examined by a consultant paediatrician. She described the complainant as a generally healthy child, but with abnormal findings to her genitalia. Examination showed a complete transection of the hymen in the seven to nine o'clock position posteriorly. This was indicative of penetrative injury to the hymen which had occurred at some time in the past. There were no signs of recent injury. The doctor was of the opinion that the findings were strongly supportive of child sexual abuse having occurred.
11.
The appellant was arrested in 2017. He denied the allegations. At trial his case was that the complaints were false and made at the instigation of the complainant's mother who was living a chaotic lifestyle and taking drugs. It was said that she wanted rid of the appellant and to thwart any attempt by him to remove her children from her.
12.
Mr Genney, who represented the appellant at trial and who assisted Mr Wright QC before us this morning, asked the complainant a number of questions, as agreed and authorised by the judge. They were short, direct and limited in nature. However, he included in his questions matters relevant to the defence case about the family situation and he also asked the child directly whether her mother had put her up to making the allegations. He cross-examined a police officer about the conduct of the interview and he cross-examined the complainant's mother about her lifestyle and her possible motives for getting her daughter to make a false complaint.
13.
Before his summing-up, the judge circulated a draft of his proposed directions. Mr Genney invited the judge to direct the jury about the limitations placed upon him by the current principles governing cross-examination of a vulnerable witness. The judge ruled that it would be appropriate to provide an explanation to the jury that cross-examination of a child cannot be as extensive or as forceful as it might otherwise be of an adult. He stated that he intended to direct the jury that Mr Genney had conducted a cross-examination which was entirely proper and in accordance with the current regime; but that such a cross-examination has limitations, because it is not possible to test every item with depth and vigour and the jury should take that into account in weighing the evidence. However, the judge would not allow Mr Genney to make any implied criticism of the new regime or comment about the disparity in the time taken for the evidence in chief to be elicited and the permitted cross-examination. He suggested that
Mr Genney read the judgment in
R v Lubemba
[2014] EWCA Crim 2064
and he declined Mr Genney's invitation to change his proposed direction that "such cross-examination had limitations" to include "such cross-examination had limitations as to the content, form and duration of the questioning".
14.
Thereafter, Mr Genney addressed the jury in accordance with the judge's directions, as he understood them to be. Helpfully, we have a transcript of those submissions in which he addressed the restrictions placed on cross-examination as to form, content and duration, and he specifically focused on the detailed contents of the ABE interview. Essentially, it was his submission to the jury that the interviewers had great difficulty in extracting the complaints from the complainant and this was because the complaints were untrue.
15.
In his summing-up, the judge directed the jury, both in writing and orally, as follows:
"It is also very important for me to make mention of one thing. It is good practice that children are not cross-examined with the vigour that might be adopted for an adult. That, inevitably, has limitations because it is not possible to test every item with depth and vigour. I am sure you will take that into account (the limitation) when you are weighing the evidence of [the complainant]. I will read that sentence again. …
I am sure you will take into account that limitation when you are weighing the evidence of [the complainant]. There have been a limited number of questions, and they have been, inevitably, shorter and to the point than might otherwise by the case. I should add that the cross-examination was conducted entirely properly by counsel. The key point is that you must, at all times, act fairly."
The judge repeated, in short form, the same warning when he came to remind the jury of the contents of Mr Genney's cross-examination, which he again described as "entirely proper".
The Grounds of Appeal
16.
Initially, there were three grounds of appeal upon which leave was given:
Ground 1: the disparity between what the defence was allowed to ask in crossexamination and the method, content and duration of what the prosecution adduced in the complainant's ABE interview had a wholly disproportionate and unfair effect.
Ground 2: the judge's directions to the jury as to the law regarding permitted cross-examination of a child by the defence were insufficient and the judge erred in refusing Mr Genney's suggestions for further amendment.
Ground 3: the judge unfairly curtailed Mr Genney's comment in his closing speech on the extent to which he was permitted to cross-examine, in contrast to the questions that the police officer was allowed to ask in the ABE interview.
17.
In the course of Mr Wright's written submissions and his oral argument ground 1 seems to have become part of ground 2. Mr Genney's cross-examination of the complainant is now described by Mr Wright as "a model of its kind" in that he loyally complied with best practice for cross-examination of vulnerable witnesses. No complaint is now advanced as to the restrictions placed by the court on Mr Genney’s cross-examination of the complainant. We shall therefore, combine the two grounds.
18.
Mr Wright complains that the judge's directions to the jury failed sufficiently to compare and contrast the nature and content of the short and properly structured cross-examination with the ABE interview that lasted over one hour. Where, as here, one has an ABE interview and limited cross-examination, Mr Wright maintains that it is incumbent on the judge to go a great deal further to ensure a proper balance between the prosecution and the defence than His Honour Judge Richardson did. Mr Wright also accused the interviewers of being repetitive and of asking leading, prompting or ‘tag’ questions. He and Mr Genney identified the following alleged deficiencies in the judge's directions:
i.
The judge did not explain to the jury
the limitations on cross-examination prior to its occurring, as is recommended in the current Compendium, section 10-5 of the Judicial
College Guidance and in the judgment in
R v Wills
[2011] EWCA Crim 1938
.
ii.
The judge failed to compare and
contrast the content, form and duration of the cross-examination with that of the examination in chief at the time of the cross-examination. Mr Wright suggested that the judge should have directed the jury on the issues that Mr Genney would have wished to pursue with the complainant and pursue in greater detail had she not been a vulnerable witness, and that these directions should have been given before, at the time of, or possibly after, the cross-examination.
iii.
In his summing-up, the judge failed
to address Mr Genney's concerns as to the contrasting approaches in the evidence in chief and the cross-examination, and failed in his warning as to the limitations on cross-examination to go as far as is now recommended in the Compendium.
iv.
The
judge's
directions
in
his
summing-up did not go far enough to make plain that the evidence of the child was very much in dispute and did not sufficiently remind the jury of the defence case.
19.
As to ground 3, Mr Wright accepts that there may have been a degree of misunderstanding between Mr Genney and the judge as to what Mr Genney wished to say in his closing submissions to the jury, but he contends that the judge restricted Mr Genney’s comments. Mr Genney should have been entitled to make further submissions on the length of time it took the interviewers to elicit the complaints and the criticisms that Mr Genney had of the way in which the interviewers had conducted the examination, and, the perceived imbalance between the latitude given to the prosecution and the lack of latitude given to the defence.
20.
In his Grounds of Opposition, supplemented by short oral submissions, Mr Worsley, who appeared for the Crown, submitted that the evidence of the complainant was elicited in accordance with good practice and the relevant advocacy tool kits. The defence were able to suggest editing of the interviews to eliminate any extraneous or irrelevant material, or material improperly obtained. As to the cross examination, the defence accepted that, given the vulnerability of the complainant, they could not put their case by traditional means and Mr Genney was allowed to put any matters relevant to the defence. Any limitations placed were as to style rather than content. In any event, the complainant detailed the allegations against her father in very clear terms. Mr Worsley described her presentation to the jury as one of a child who plainly loved her father, but that when it came to disclosing his abuse of her, she was "very matter of fact". He conceded, during the course of his submissions, that it would have been preferable had the judge followed what is now accepted to be best practice and warned the jury before the child was cross-examined of the limitations placed on the cross examiner and possibly discussed with counsel whether any further direction was required after the crossexamination as to the issues that had not been explored in greater detail. Nonetheless, Mr Worsley maintains that this was a very experienced trial judge who amended his directions to include a sufficient warning on the limitations and that that warning, in the context of this particular trial which was very short and the issues very clear, was perfectly sufficient to ensure that the appellant had a fair trial.
Conclusions
21.
Given the concerns expressed by the very experienced single judge in giving leave, we pressed counsel on their experiences of the process now adopted for cross examining vulnerable witnesses and considered whether we should give any further guidance on best practice. Guidance is bound to evolve with the benefit of experience. We believe that the following is best practice in a case involving cross examination of a vulnerable witness. First, the identification of any limitations on cross examination should take place at an early stage. We assume that this will occur at the ground rules hearing where the judge will discuss with the advocates the nature and extent of the limitations imposed and whether they are simply as to style or also relate to content. Before the witness is cross examined, it is best practice, (as recommended by the Judicial College) that as well as giving the standard special measures direction, the trial judge also directs the jury in general terms that limitations have been placed on the defence advocate. If any specific issues of content have been identified that the cross examiner cannot explore, the judge may wish to direct the jury about them after the cross examination is completed. On any view, the judge should direct the jury about them in the summing-up. Finally, we should add that every advocate (and trial judge) is expected to ensure that they are up to date with current best practice in the treatment of vulnerable witnesses.
22.
Bearing those observations in mind, we turn to the issue of the safety of the appellant’s convictions. It is clear from the transcripts of the discussions between counsel and the judge, and the judge's summing up that all parties were doing their best to ensure that they complied with what they understood to be current best practice. However, counsel wrongly informed the judge that there was no guidance available from the Judicial College. Guidance was available and easily accessible in the Compendium and in the judgment in
Wills
. It is unfortunate that this guidance was missed. However, it does not follow from the fact that the trial judge did not adopt best practice in every respect that a conviction is unsafe.
23.
Having considered the conduct of the trial overall and the limited nature of the restrictions placed on the cross examiner, we reject the assertion that the appellant’s convictions are unsafe.
We have reached that conclusion for the following reasons.
24.
First, the appellant no longer complains about the limitations placed on the defence in crossexamination and concedes that the limitations (essentially only as to style) did not themselves undermine the fairness of the trial. Even if limitations as to content had been placed on the defence advocate, this would not necessarily have affected the safety of the conviction. There are usually ways in which a defence case and any relevant material can be put fully and fairly before a jury without confronting a vulnerable witness and causing unnecessary distress or confusion.
25.
Second, whilst we accept that the ABE interview was probably too long for a child of seven and was not a perfect model of its kind, many of the questions asked by the officer were questions that Mr Genney would have wished to ask. Mr Genney relied on some of the answers elicited. The answers were as much evidence when the questions were asked by the officer as they would have been had they been asked by Mr Genney.
26.
Third, whilst it is true that the judge did not warn the jury of the limitations placed on crossexamination before it took place, as we would recommend as best practice, he gave every other direction recommended with care and precision. He directed the jury in his summing up of the need to limit the cross-examination and he repeated that warning when he reminded the jury of the contents of the cross-examination. He reminded the jury of the contents of the ABE interview in some detail, including a comment of his own, favourable to the defence. We also note that the judge referred to the defence case throughout his summing-up and summarised it in some detail at the end of the summing-up. This included the defence list of seven principal submissions said to undermine the prosecution case. One of the seven submissions amounted to a clear assertion that the mother had persuaded her children to make false complaints about their father. The list of submissions was included in the judge's written directions handed to the jury.
27.
Accordingly, we are satisfied that, overall, the summing-up and the judge's directions were fair. The jury must have been well aware of the kind of limitations placed upon Mr Genney: (a) from the judge's directions; (b) from the cross-examination itself; and (c) from Mr Genney's own submissions to them. There could be no doubt in the jury's mind that the child's evidence was very much in dispute. The judge reminded them of that fact more than once.
28.
As to Mr Genney's submissions to the jury, on our reading of the transcript the only matter that the judge refused to allow Mr Genney to address was the length of the ABE interview, as compared to the timing of the cross-examination. The judge was entitled to form the view that it was not a relevant factor. What was relevant was the effectiveness of the questions asked and the facts elicited. In any event, both the judge and Mr Genney reminded the jury of the difficulties the police officer encountered in eliciting the disclosures. Mr Genney went through the ABE interview in some considerable detail in his closing submissions. The jury would have been well aware of the length of the interview and his observations on the nature and content of the officer's questions.
29.
Overall, therefore, we are satisfied that the conduct of the trial was fair and sufficiently consistent with best practice, albeit, with the benefit of hindsight, we would have preferred the judge to have gone further. In our judgment, the conduct of the trial has not tipped the balance unduly in favour of the prosecution. The appellant had a fair trial and there is nothing to undermine the safety of the conviction.
The Renewed Application for Leave to Appeal against Sentence
:
30.
The applicant was aged 41 at the time of sentence. He had two previous convictions of a wholly different nature, dating back some years.
31.
In his sentencing remarks, the judge described the applicant's conduct as "depraved and cruel". He sentenced on the basis that the rapes occurred in excess of four times, probably five or six. He placed the case within category 2A of the relevant guideline and identified a number of aggravating features. Category 2A provides a starting point of thirteen years' custody and a range of eleven to seventeen years for one offence. The victim was very young and obviously very vulnerable; the conduct was repeated several times; the applicant was the complainant’s father and his conduct was a gross breach of trust; the offences occurred in a place where the child should have felt protected by her father; and the applicant had made threats that if the complainant told anyone, something terrible would happen to her.
32.
The judge could identify very limited mitigation. He accepted the previous criminality was irrelevant and also that the applicant might find imprisonment more burdensome because of his language difficulties and other unspecified vulnerabilities.
33.
In his succinct grounds of appeal, Mr Wright submits that the sentence imposed was excessive. The judge was accused of ‘double counting’ and having insufficient regard to the overall length of the sentence. Mr Wright did not accept that five or six occasions of rape could be called a ‘campaign of rape’. He conceded that the judge placed the offending in the right category but submits that the sentence could have been somewhat shorter.
34.
Refusing leave to appeal against sentence, the single judge gave the following reasons:
"1. A long sentence was inevitable and a higher sentence than the Category 2A starting point was justified. The relevant range, for one offence, extends upwards to seventeen years.
2.
The judge dealt with this case on the basis that there were five or six offences. The breach of trust operated to move the case upwards within the range as did the location of the offences (her home). It was important to avoid double counting in that respect but the overall impact of this offending on the victim is likely to be lifelong because her father violated her in her own home.
3.
For those reasons a sentence towards the top of the category range was required, and that is what the judge imposed.
…"
35.
We agree with those observations. Despite, therefore, the eloquence and excellence of Mr Wright's submissions, we are driven to the conclusion that both the appeal against conviction and the renewed application for leave to appeal against sentence must be respectively dismissed and refused.
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_____________________________________ | {"ConvCourtName": ["Crown Court at Kingston upon Hull"], "ConvictPleaDate": ["24th March 2017"], "ConvictOffence": ["rape of a child under 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 Kingston upon Hull"], "Sentence": ["custodial term of sixteen years, with an extended licence period of one year", "special custodial sentence for an offender of particular concern"], "SentServe": ["concurrently"], "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": ["middle child"], "VictimType": ["a child"], "VicNum": ["a child"], "VicSex": ["She"], "VicAgeOffence": ["seven"], "VicJobOffence": ["child under 13"], "VicHomeOffence": ["children were placed in foster care"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Achieving Best Evidence Interview", "consultant paediatrician"], "DefEvidTypeTrial": ["He denied the allegations."], "PreSentReport": ["data not available"], "AggFactSent": ["threats", "occurred in a place where the child should have felt protected", "previous convictions", "gross breach of trust", "conduct was repeated", "vulnerable witness", "victim was very young"], "MitFactSent": ["language difficulties and other unspecified vulnerabilities"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against conviction", "leave to appeal against sentence"], "AppealGround": ["Ground 2: the judge's directions to the jury as to the law regarding permitted cross-examination of a child by the defence were insufficient and the judge erred in refusing Mr Genney's suggestions for further amendment.", "The judge was accused of ‘double counting’ and having insufficient regard to the overall length of the sentence.", "Ground 1: the disparity between what the defence was allowed to ask in crossexamination and the method, content and duration of what the prosecution adduced in the complainant's ABE interview had a wholly disproportionate and unfair effect.", "Ground 3: the judge unfairly curtailed Mr Genney's comment in his closing speech on the extent to which he was permitted to cross-examine, in contrast to the questions that the police officer was allowed to ask in the ABE interview."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["dismissed and refused."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["In our judgment, the conduct of the trial has not tipped the balance unduly in favour of the prosecution. The appellant had a fair trial and there is nothing to undermine the safety of the conviction.", "a sentence towards the top of the category range was required, and that is what the judge imposed."]} | {"ConvCourtName": ["Crown Court At Kingston Upon Hull"], "ConvictPleaDate": ["2017-03-24"], "ConvictOffence": ["rape of a child under 13"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Kingston Upon Hull"], "Sentence": ["custodial term of sixteen years, with an extended licence period of one year", "special custodial sentence for an offender of particular concern"], "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": ["Relative"], "VictimType": ["Individual person"], "VicNum": ["1 of 1"], "VicSex": ["All Female"], "VicAgeOffence": ["7"], "VicJobOffence": ["Child"], "VicHomeOffence": ["Temporary Accommodation"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Expert report/testimony", "Achieving Best Evidence Interview"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["threats", "Location", "gross breach of trust", "conduct was repeated", "victim was very young", "previous convictions", "vulnerable witness"], "MitFactSent": ["language difficulties and other unspecified vulnerabilities"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Other", "against conviction"], "AppealGround": ["The judge was accused of ‘double counting’ and having insufficient regard to the overall length of the sentence.", "Ground 2: the judge's directions to the jury as to the law regarding permitted cross-examination of a child by the defence were insufficient and the judge erred in refusing Mr Genney's suggestions for further amendment.", "Ground 3: the judge unfairly curtailed Mr Genney's comment in his closing speech on the extent to which he was permitted to cross-examine, in contrast to the questions that the police officer was allowed to ask in the ABE interview.", "Ground 1: the disparity between what the defence was allowed to ask in crossexamination and the method, content and duration of what the prosecution adduced in the complainant's ABE interview had a wholly disproportionate and unfair effect."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["a sentence towards the top of the category range was required, and that is what the judge imposed.", "In our judgment, the conduct of the trial has not tipped the balance unduly in favour of the prosecution. The appellant had a fair trial and there is nothing to undermine the safety of the conviction."]} | 496 |
No:
200805279/A8
Neutral Citation Number:
[2009] EWCA Crim 456
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 26 February 2009
B e f o r e
:
LORD JUSTICE HOOPER
MR JUSTICE JACK
MRS JUSTICE SHARP DBE
- - - - - - - - - - - - - - - -
R E G I N A
v
MOHAMMED KANDEH JALLOH
- - - - - - - - - - - - - - - -
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 Rawat
appeared on behalf of the
Appellant
Mr G Fitzpatrick
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - -
J U D G M E N T
1.
Mr Justice Jack: On 4 September 2008 at the Crown Court at Harrow the appellant, Mohammed Jalloh, was convicted of possession of a shortened shotgun contrary to
sections 1
and
4(4)
of the
Firearms Act 1968
. He also then pleaded on a separate indictment to possession of cocaine and heroin with intent to supply. He was sentenced to imprisonment for five years on the firearms offence and to three years on the two drug offences, concurrently with each other but consecutive to the firearms sentence, so giving a total of eight years.
2.
He appeals against sentence by leave of the single judge.
3.
The offences arose from a search on 26 September 2007 at an address in north London pursuant to a warrant. It was not the appellant's house but that of a female acquaintance. He had spent the night there and he let the police into the house. In an upstairs cupboard the police found a double-barrelled 12 bore Purdey shotgun. Its barrels had been shortened, the fore-piece was missing and the firing mechanism for the right barrel was defective. So it was a Purdey which had come down in the world. No ammunition was found. In the appellant's jeans were, first, a package containing 137 milligrammes of heroin, two packages containing 158 and 157 milligrammes of cocaine, and 12 wraps of cocaine totalling 2.25 grammes.
4.
The prosecution case against the appellant at the trial featured at its forefront that before the gun was found the appellant referred to it and said that it was his. At the trial he denied that he had said that. He had given a no comment interview.
5.
The householder was also charged with the offence relating to the gun, but she was acquitted.
6.
His pleas to the drug offences were on the basis that he was holding the cocaine and heroin for another person and had been doing so for less than 24 hours and would have returned them on the day of the search and that the drugs were not held for commercial supply. We have enquired what was meant by the last part of that basis of plea, "not held for commercial supply". It has been explained to us that it simply meant that the appellant was not getting any benefit from holding them. It was not suggested that the drugs were not ultimately going to be supplied commercially. Given the number of wraps of cocaine, that would have been most unlikely.
7.
When he passed sentence the judge stated that the appellant had put the householder at risk in relation to the gun. He did not otherwise enlarge on his reasons for the five year sentence. In relation to the drugs he said that, looking at the totality of the weight, three years was appropriate.
8.
The appellant is aged 27. He had been dealt with by the courts on eight previous occasions and had received three custodial sentences for burglary and receiving, including three years for burglary imposed on 8 April 2003. He had no prior convictions for firearms or violent offences, nor for drug offences, save for a fine for possession of cannabis.
9.
The factors which the court should consider in relation to sentence for firearms offences are set out in
Avis
[1998] 2 Cr App R(S) 178. Taking them in turn, first, this was a genuine weapon and in its sawn-off state it was a criminal's weapon. No ammunition was found with it. Second, there was no information as to any use having been made of it. Third, the function of the weapon could only be criminal. There is no information as to any particular future criminal purpose. The finding of the weapon, however, in conjunction with a finding of drugs shows the world that the appellant was moving in. We have already referred to his record. The maximum sentence for the aggravated offence as defined in
section 4(4)
is seven years.
10.
We have considered the following cases. In
Gourley
[1999] 2 Cr App R(S) 148 a sentence of four years was reduced to three where there was a plea of guilty to possessing a sawn-off shotgun. Cartridges had also been found. The offender said he had it for the protection of his family.
11.
In
Herbert
[2001] 1 Cr App R(S) 21 a sentence of four years was upheld in a case where the offender had pleaded guilty, but he had put forward a dishonest account of how he had come by the gun which had been disbelieved by the judge following the hearing of evidence. In those circumstances, his mitigation on account of his plea was greatly reduced. The case concerned a sawn-off shotgun and cartridges.
12.
In
O'Shea
[2000] 2 Cr App R(S) 412 it was said that a sentence of 30 months could not possibly be said to be excessive. We find that case of no help.
13.
Beaumont
[2004] 1 Cr App R(S) 64
involved a sawn-off shotgun and cartridges which the offender said he had purchased as collector's items. There was no evidence of criminal intent. The sentence of three years following a plea was reduced to two. Again, the case is of little assistance.
14.
We have concluded, having in mind the considerations set out in
Avis
, that the sentence of five years here was somewhat too high. We consider that four years would fit the circumstances before us. As to the drug offences, it is not said that the sentence of three years was in itself excessive. What is said is that, if one looks at the totality, three years is too high. We do not accept that submission. It seems to us that the total of seven years as it will now be is appropriate for these offences. The appeal will be allowed in respect of the firearms offence as we have stated. | {"ConvCourtName": ["Crown Court at Harrow"], "ConvictPleaDate": ["4 September 2008"], "ConvictOffence": ["possession of cocaine and heroin with intent to supply.", "possession of a shortened shotgun"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleas"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Harrow"], "Sentence": ["total of eight years."], "SentServe": ["imprisonment for five years on the firearms offence and to three years on the two drug offences, concurrently with each other but consecutive to the firearms sentence"], "WhatAncillary": ["data not available"], "OffSex": ["appellant"], "OffAgeOffence": ["27"], "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": ["arose from a search"], "DefEvidTypeTrial": ["At the trial he denied"], "PreSentReport": ["data not available"], "AggFactSent": ["received three custodial sentences for burglary and receiving,"], "MitFactSent": ["He had no prior convictions for firearms"], "VicImpactStatement": ["data not available"], "Appellant": ["data not available"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence"], "AppealGround": ["five years here was somewhat too high"], "SentGuideWhich": ["sections 1 and 4(4) of the Firearms Act 1968.", "totality"], "AppealOutcome": ["The appeal will be allowed in respect of the firearms offence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["five years here was somewhat too high."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Crown Court At Harrow"], "ConvictPleaDate": ["2008-09-04"], "ConvictOffence": ["possession of cocaine and heroin with intent to supply.", "possession of a shortened shotgun"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Don't know"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Harrow"], "Sentence": ["Imprisonment"], "SentServe": ["Combination"], "WhatAncillary": ["data not available"], "OffSex": ["Don't Know"], "OffAgeOffence": ["27"], "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": ["arose from a search"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["data not available"], "AggFactSent": ["Previous convictions"], "MitFactSent": ["He had no prior convictions for firearms"], "VicImpactStatement": ["data not available"], "Appellant": ["data not available"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence"], "AppealGround": ["five years here was somewhat too high"], "SentGuideWhich": ["totality", "sections 1 and 4(4) of the Firearms Act 1968."], "AppealOutcome": ["The appeal will be allowed in respect of the firearms offence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["five years here was somewhat too high."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 516 |
Neutral Citation Number:
[2015] EWCA Crim 1924
Case No.
2014/05589/B4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
The Law Courts
High Street
Lewes
East Sussex
BN7 1YB
Date:
Wednesday 22
nd
July 2015
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Thomas of Cwmgiedd
)
MR JUSTICE NICOL
and
MR JUSTICE STUART-SMITH
__________________
R E G I N A
- v -
ALI SHABANI
__________________
(Transcript of the Handed Down Judgment 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 D Bunting
appeared on behalf of the Appellant
Mr B Douglas-Jones
appeared on behalf of the Crown
____________________
Judgment
THE LORD CHIEF JUSTICE:
1. This appeal comes before the court as a reference by the Criminal Cases Review Commission in respect of the appellant's conviction at Lewes Crown Court before Miss Recorder Chalmers. The conviction arises out of a conviction on the appellant's plea of guilty to possession of false identity documents, contrary to
section 25(1)(a)
of the
Identity Cards Act 2006
.
2. The basis of the appeal is that those who advised the appellant failed to give any, or any proper, advice in relation to the defence which commonly arises in such cases in relation to those who are fleeing from other countries.
3. The background can be shortly stated, as can the law. The law is to be found in the decision of this court given by Leveson LJ (as he then was) in
R v Mateta and Others
[2013] EWCA Crim 1372
.
4. The appellant was a citizen of Iran. He engaged in various activities there which plainly would have given rise to the question of whether he had been involved in political activities. It is unnecessary to set out the detail. He left Iran in circumstances where it was plain on his account of matters that he would be arrested for the activities in which he had been engaged. He travelled via Turkey to Spain and then to London Gatwick. He told the immigration officers of his visit to Turkey, and he said that he had been in another country. It is clear from the facts that have now emerged that he had been in Spain for eleven days. On arrival at Gatwick on 19
th
January he was stopped by an immigration officer and his passport (a Lithuanian passport) was examined. Although it was in his name and contained his photograph, it was obviously a false passport. He was interrogated and enquiries were made by the immigration officer.
5. As will be obvious from that account, he was advised by a duty solicitor. We do not name the duty solicitor, but his competence was such that he did not even appreciate that there might be any defence to someone in those circumstances.
6. On 4
th
February 2011, in the Crown Court at Lewes, the appellant pleaded guilty to possession of a false identity document, as we have set out. It appears that at least the person who advised him on that occasion knew of the defence, but he wholly failed to give the appellant proper advice. As a result, the appellant pleaded guilty and was sentenced to 12 months' imprisonment. An order was made that he was subject to deportation, pursuant to the Borders Act 2007.
7. His case was referred to the First Tier Tribunal Immigration and Asylum Chamber. In a judgment, which we have, the Tribunal very carefully considered all the evidence and concluded that the appellant had been at risk of persecution in Iran and that he left Iran because he was wanted in connection with a criminal offence for conducting his political activities. He had also converted to Christianity after arrival in the United Kingdom. It was concluded that he would have been at risk and that therefore it would not be right to remove him. In consequence, he was granted asylum and given five years leave to remain in the United Kingdom.
8. In November 2012 the appellant took his case to the Criminal Cases Review Commission which, with their usual thoroughness, examined it and referred the matter to this court on 1
st
December 2014.
9. It is plain that if the appellant had been advised properly in relation to the appropriate article of the Refugee Convention 1951 and
section 31 of the Immigration and Asylum Act 1999
he would have had an arguable defence with a realistic prospect of success before this court. Evidence would have been needed in relation to the political activities and the risk of persecution that he suffered, and there would have had to be evidence as to whether, under
section 31(2)
he was still in flight.
10. We have looked carefully at the evidence in relation to both of the issues. It is plain in relation to the question as to whether he was at risk of persecution for his political activities that the evidence that was before the First Tier Tribunal, and which was accepted by the judge of the Tribunal, would have given rise to a defence with a reasonable prospect of success before the jury.
11. As regards the issue under
section 31(2)
, it provides:
"If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country."
12. The issue in this case would have been whether the time that the appellant spent in Spain was time spent in the course of the flight. In our judgment, having looked at the facts and been taken to the evidence that was available, there was plainly a reasonable prospect of him persuading a jury that he was in the course of flight.
13. In the result, therefore, it is clear that the Reference by the Criminal Cases Review Commission set forth a very powerful case as to why this court should review the matter. We have been greatly assisted this morning by Mr Bunting, who has appeared on behalf of the appellant, and Mr Douglas-Jones who has appeared on behalf of the Crown. Mr Douglas-Jones has accepted that in the circumstances which we have briefly outlined, and applying the principles set out in
Mateta
, that this is a case where we should plainly allow the appeal and quash the conviction.
14. There is, however, one serious matter. As a result of the incompetent advice given by the duty solicitor, and more seriously by the solicitor who represented the appellant when he was before the Crown Court, the appellant spent time unnecessarily in prison. It has led to the cost of his detention in prison, the investigation by the Criminal Cases Review Commission, and the appearance of two counsel before us today.
15. It is unacceptable that such advice was given which plainly did not pass a standard of competence. It seems to us that people in the position of this appellant, and the system as a whole, are entitled to expect that those who advise in circumstances such as this should be familiar with the law. There can be little excuse for a failure to understand the law and advise properly. We therefore consider that this is a case where we should refer both the duty solicitor and the solicitor who represented the appellant at the hearing to the Solicitors Regulatory Authority for them to consider whether any proper sanction is to be taken against them.
16. The criminal justice system cannot afford the kind of incompetence that was displayed in this case; nor can we as a nation afford to have lawyers who act so incompetently that someone wrongly spends a considerable amount of time in prison. We have not named the advisers because to do so would be to pre-judge the decision of the Solicitors Regulatory Authority. But if the Solicitors Regulatory Authority find, after they have had a chance properly to investigate the matter, that they breached the levels of competence required, they will be named on that occasion.
_____________________________ | {"ConvCourtName": ["Crown Court at Lewes"], "ConvictPleaDate": ["4\n th\n February 2011"], "ConvictOffence": ["possession of false identity documents,"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["plea of guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Lewes"], "Sentence": ["12 months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["An order was made that he was subject to deportation, pursuant to the Borders Act 2007."], "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": ["false passport."], "DefEvidTypeTrial": ["he did not even appreciate that there might be any defence to someone in those circumstances."], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["risk of persecution in Iran and that he left Iran because he was wanted in connection with a criminal offence for conducting his political activities", "he would have been at risk and that therefore it would not be right to remove him"], "VicImpactStatement": ["data not available"], "Appellant": ["appellant's plea of guilty"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["data not available"], "AppealGround": ["that those who advised the appellant failed to give any, or any proper, advice in relation to the defence which commonly arises in such cases in relation to those who are fleeing from other countries.", "Evidence would have been needed in relation to the political activities and the risk of persecution that he suffered, and there would have had to be evidence as to whether, under section 31(2) he was still in flight."], "SentGuideWhich": ["Refugee Convention 1951 and section 31 of the Immigration and Asylum Act 1999", "section 25(1)(a) of the Identity Cards Act 2006."], "AppealOutcome": ["allow the appeal and quash the conviction."], "ReasonQuashConv": ["As a result of the incompetent advice given by the duty solicitor, and more seriously by the solicitor who represented the appellant when he was before the Crown Court, the appellant spent time unnecessarily in prison. It has led to the cost of his detention in prison, the investigation by the Criminal Cases Review Commission, and the appearance of two counsel before us today. 15. It is unacceptable that such advice was given which plainly did not pass a standard of competence. It seems to us that people in the position of this appellant, and the system as a whole, are entitled to expect that those who advise in circumstances such as this should be familiar with the law. There can be little excuse for a failure to understand the law and advise properly. We therefore consider that this is a case where we should refer both the duty solicitor and the solicitor who represented the appellant at the hearing to the Solicitors Regulatory Authority for them to consider whether any proper sanction is to be taken against them."], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Crown Court At Lewes"], "ConvictPleaDate": ["2011-02-04"], "ConvictOffence": ["possession of false identity documents,"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court At Lewes"], "Sentence": ["12 months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["An order was made that he was subject to deportation, pursuant to the Borders Act 2007."], "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": ["false passport."], "DefEvidTypeTrial": ["offender advised he did not have any defence evidence to submit"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["he would have been at risk and that therefore it would not be right to remove him", "risk of persecution in Iran and that he left Iran because he was wanted in connection with a criminal offence for conducting his political activities"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["data not available"], "AppealGround": ["unlawful/unsafe conviction", "appellant would have been in danger if he did not immigrate", "appellant did not receive proper advice"], "SentGuideWhich": ["section 25(1)(a) of the Identity Cards Act 2006.", "Refugee Convention 1951 and section 31 of the Immigration and Asylum Act 1999"], "AppealOutcome": ["allowed and conviction quashed"], "ReasonQuashConv": ["appellant's solicitor did not give him the correct advise"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 581 |
Case No:
201703962 B4
Neutral Citation Number:
[2018] EWCA Crim 675
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
HIS HONOUR JUDGE GOLDSTONE QC, RECORDER OF LIVERPOOL
T20167504
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
28/03/2018
Before :
LORD JUSTICE BEAN
MR JUSTICE SWEENEY
and
HIS HONOUR JUDGE LEONARD QC (SITTING AS A JUDGE OF THE CACD)
- - - - - - - - - - - - - - - - - - - - -
Between :
KHALDON MOHAMMED
Appellant
- and -
R
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr A Ford
(instructed by
Registrar of Criminal Appeals
) for the
Applicant
Mr A Gibson
(instructed by
Crown Prosecution Service
) for the
Respondent
Hearing date : 23 March 2018
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Bean :
1.
On 16 January 2017, following a trial in the Crown Court at Liverpool before His Honour Judge Goldstone QC, the Recorder of Liverpool and a jury, the applicant was convicted by a majority of 10 to 2 of a single count of rape. He now applies for leave to appeal against conviction based on fresh evidence. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case and nothing may be published which identifies the complainant.
The Facts
2.
On the night of 16 October 2015 the applicant, a taxi driver, drove the complainant (whose first name is Steven) from Liverpool city centre to near Sefton Park. The complainant got out of the taxi and very soon after – in a state of distress – told his friend KQ over the telephone that he had been raped by a taxi driver. She contacted the police and he subsequently made a formal complaint of rape.
3.
The prosecution case was that while they were in the taxi, the applicant forced the complainant to give him oral sex. The prosecution submitted that, in view of the complainant’s distressed state and his immediate complaint, the jury could be sure that he was telling the truth.
4.
The defence case was that the oral sex did take place but was consensual and was instigated by the complainant. It was submitted that it was not possible in the circumstances – where the applicant was driving – for him to have forced the complainant’s head down onto his penis.
5.
The issue for the jury was whether the complainant was telling the truth when he alleged that the oral sex took place without his consent.
6.
The complainant’s evidence was that he had spent the night drinking in town and called a taxi to take him home. He got into the back of the taxi and engaged in the usual conversation with the driver. He had difficulty hearing him, so the driver invited him to get into the front passenger seat which he did. He became uncomfortable when the driver asked about his sexual orientation and whether he liked “dick”. Then he realised that they were not taking a direct route to his home. Suddenly the driver unbuttoned his jeans, took out his erect penis, touched the complainant’s knee and asked him to touch his penis. The complainant was shocked and said no. Then the driver forced the complainant’s head down onto his penis and told him to suck it; the driver asked if it was nice and if he liked it; this was all while he was driving. The complainant went through the motions but was gagging. He felt he had no option. At one point, when they are at a set of traffic lights, the driver told him to sit up which he did, but the oral sex resumed afterwards. The driver ejaculated into his own hand and flicked it out of the window.
7.
When they reached his home in Sefton Park, the driver told him to get out and then drove off. The complainant was upset and was crying when he called his friend KQ and told her what had happened. She offered to call the police and he agreed. He gave an initial account to the police that night, and his ABE interview was a week later.
8.
In cross-examination it was put to the complainant that there were key inconsistencies between his original account to police and his evidence; in particular, in his first account he stated that the oral sex did not begin until after the traffic lights; he denied that the inconsistency was because the oral sex began consensually. When asked why he co-operated with the request for oral sex and why he did not jump out of the car when they stopped at the lights, he said he was scared. It was put to him that he instigated the sex.
9.
A female friend of the applicant whom we shall call KQ gave evidence about the call that she received from the complainant. He was hysterical and told her he had been raped. She then called the police for him. She saw him the next day. He was in bed, pale and upset.
10.
A police control room operator spoke to the complainant on the telephone that night and described him as being in a highly distressed state,
11.
The applicant was arrested and interviewed. He answered questions and his account was that the complainant made unwanted verbal and physical advances which he resisted. He was shocked and was fighting off the complainant and trying to throw him out of the car. Eventually he dropped him off without the fare being paid. The sexual activity was limited to the complainant attempting to kiss him, put his hand down the applicant’s pants and squeezing and touching him.
12.
The applicant gave evidence that he was a Yemeni national, and married with children. He became a taxi driver in March 2015. The complainant initially got into the back of the cab, called him “sexy”, and was chatty. It was the complainant’s idea to get in the front. He immediately put his hand on the applicant’s penis but the applicant told him, “I’m not like that, I’m married”. During the drive home, the complainant then gave the applicant oral sex while he was driving. It was correct that when they stopped at traffic lights; the applicant told him to stop as someone might see. However, the applicant denied at any point the complainant was unwilling. The complainant wanted the applicant to come home with him and wanted to have sex with him. Eventually the applicant masturbated himself to ejaculation and flicked it out of the window. The complainant put his hand on the applicant’s penis and smeared some of the ejaculate on his own face.
13.
When they reached the destination, the applicant asked for the fare of £13.60. The complainant was annoyed and said: “You want money? I’ve got your cum on my face.” He then got out of the car and went off. The applicant then went to a friend’s shop where he bought a drink and told his friends that a female had come onto him and touched him and wanted to give him oral sex. His evidence was that he was too embarrassed to tell his friends what had really happened. Also, he was scared he could lose his wife and children.
14.
In cross-examination, he explained that he had initially decline the complainant’s suggestion but then changed his mind and let him suck his penis, because he was curious. He went along with it but decided he did not like it. He masturbated himself to ejaculation because he wanted the incident over with. He agreed that he did not take the direct route to the address; the reason was that he needed the money. Afterwards he felt embarrassed and ashamed. It was put to him that there were inconsistencies between his defence statement and his evidence.
15.
It has not been suggested that there was any error by the trial judge in his summing up nor any other irregularity during the trial. Unsurprisingly, no application was made at the time for permission to appeal against conviction. The application, which is before us, was made on 29 July 2017 on the basis that fresh evidence was now available which called into question the safety of the conviction.
16.
Statements were lodged from a retired taxi driver, Mr Jeffrey Clarke, made to the defendant’s solicitors on 14
March and 21 July 2017 and a statement made by the applicant’s wife Hannah Mohammed taken by the solicitors on 6 April 2017. The Registrar referred the applications for an extension of time, leave to adduce fresh evidence and permission to appeal against conviction to the full court. The Registrar’s office also identified a technical point relating to sentence to which we shall return at the end of this judgment. The applicant was represented before us by Mr Ford and the respondent by Mr Gibson; both counsel appeared at trial. We are grateful to both of them for their concise and realistic submissions.
17.
As is well known, section 23(2) of the Criminal Appeal Act 1968 states that this court “shall, in considering whether to receive any evidence have any regard in particular to:
a)
Whether the evidence appears to the court to be capable of belief;
b)
Whether it appears to the court that the evidence may afford any ground for allowing the appeal;
c)
Whether the evidence would have been admissible in the proceedings from which the appeal lies on the issues which is the subject of the appeal; and
d)
Whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.
18.
As to the last point, it is common ground that the evidence was not available at trial. As to paragraph (c), Mr Gibson in his skeleton argument expressly concedes that if the fresh evidence satisfied paragraphs (a) and (b) and were admitted in evidence at a retrial, section 41 of the Youth Justice and Criminal Evidence Act 1999 would not preclude the complainant being asked about the alleged previous incident. It is also plain that if the applicant were to establish a case for permission to appeal on the merits the necessary extension of time should be granted.
19.
Mr Clarke and Mrs Mohammed both attended the hearing before us. In accordance with this court’s usual practice we heard their evidence
de bene esse
(that is, on a provisional basis) and after that heard submissions from Mr Ford and Mr Gibson. We reserved our decision, including a decision on whether the evidence should be formally received.
The evidence of Mr Clarke
20.
Mr Clarke told us that he was a taxi driver for about three years but had now retired. He had his own vehicle but worked for Diamond Cars, Whiston, Merseyside. He retired in 2017. He did not know the applicant.
21.
One day he went into a newspaper shop in Whiston and bought the Liverpool Echo. There was an article in it about a taxi driver being jailed. Mr Clarke read it in the shop. The article named the driver but there were no pictures in it. The owner of the shop, who Mr Clarke knew as Tony, said that he knew the taxi driver and his wife. Mr Clarke told Tony to give his (Mr Clarke’s) phone number to the driver’s wife. She rang Mr Clarke about two weeks later. He told her that “the lad I picked up was like the one in the paper”. The newspaper didn’t name the young lad nor show his image. The driver’s wife said she would try to get photos of the lad to me. The phone call was 2-3 minutes.
22.
Mr Clarke was then asked about the incident of “the lad” he had picked up. The witness said he had picked him up at the Marriott hotel in Liverpool City Centre. It was nearly in the early hours of the morning. He had just dropped off another fare. The name Steven came up on his screen with a request to pick him up at the Marriott at 2am and take him to Allerton Road, Mossley Hill. Mr Clarke went to the Marriott as requested and collected Steven. He wasn’t with anyone else. The vehicle was an eight seater bus. The passenger got in right behind the driver’s seat. He was a bit drunk. Then he “started being funny with me. He was slurring his words and singing. When we got closer to the drop off point, which is about 15 minutes drive from the Marriott at that time of night the passenger said that he had got no money and asked “can I pay you in kind?”. Mr Clarke said no. The passenger said “I’ll suck you off if I don’t have to pay. I don’t have any money anyway.” Mr Clarke again said no, stopped the vehicle and told the man to get out, which he did. Nothing sexual had actually happened. Mr Clarke said that incidents of this kind had happened to him before in his time as a taxi driver but only with women passengers. He turned around and drove home. He didn’t think to report it.
23.
He said that the article in the Liverpool Echo reminded him of the previous incident. After he spoke to the driver’s wife on the phone he went round and told Tony the newsagent about it. The driver’s wife sent him pictures of the lad taken from social media. At the time Mr Clarke made his first statement to the defence solicitors he had not seen the photographs. The lady sent them after that. Mr Clarke received them on his mobile phone in colour. No-one else was present at the time. He recognised the photos as being of the lad he had picked up: he was sure of that (the photographs are of the complainant in the applicant’s trial). He did not hear about the trial while it was going on. He is satisfied that the man in the photographs was the same man who had offered to suck him off.
24.
He was asked when he had retired as a taxi driver and thought it was about September 2016: he had been working for Diamond Cabs. It was put to him that by this time Diamond Cabs were no longer licensed and said that at the time he retired he had his own license and was no longer working Diamond. He thought that the incident with the passenger picked up from the Marriott hotel must have been in 2015.
25.
Mr Gibson put to him that Whiston is eight miles east of Liverpool City Centre, whereas Mossley Hill is only three miles east of the centre. Counsel asked why a resident of Mossley Hill who wanted to be collected from the Marriott hotel and taken home to Mossley Hill would call a cab office based in Whiston. The witness said he was already in the city centre when he got the message asking him to pick up Steven.
26.
He said that he had never seen Steven before. Steven was seated behind the driver and started the conversation. At one stage he pulled on the driver’s seat which made Mr Clarke turn around and tell him to stop. The passenger said he had no money. Mr Clarke said that they would go to a bank machine so that the passenger could draw out money: this was when the passenger said he would suck Mr Clarke off. He said he had not reported the incident either to the cab company or to the police. In fact, the first person he told about it was Tony, the newsagent, sometime later when the newspaper article appeared. The newsagents has ceased trading now. He could not say exactly when he spoke to Tony, but the driver’s wife contacted him about two weeks after that and he made his first statement to the solicitors about 4 weeks after speaking to Tony. All he could say about Tony was that he was a middle aged Asian shopkeeper who said that the driver’s wife was a friend of a friend.
27.
He was asked about how he and the cab company dealt with the money he received from fares. He said he was supposed to hand over all the cash. He was asked what happened when he had taken a passenger on a journey and then the passenger left without paying. He replied that he would tell the company. On this occasion he told the company that the fare hadn’t paid but he didn’t tell them why.
28.
Mrs Mohammed then gave evidence. She had been present at her husband’s trial but did not give evidence. Sometime after the trial she received a phone call from Mr Clarke. She didn’t know him. He said that he had experienced an incident similar to her husband’s as reported in the newspaper. It involved a man called Steven. At that point Mrs Mohammed stopped him because she knew it could affect the trial. She referred him to her husband’s solicitor. She told the solicitor about the call and said Mr Clarke would contact him. She didn’t herself speak to Mr Clarke again. However, she sent him pictures of the complainant from a website – the Facebook page of a Liverpool club. When present at the trial she had not seen the complainant’s face directly, because he gave evidence from behind a screen, but she did watch his video recorded interviews from the public gallery so she knew what he looked like. She had not been present when Mr Clarke went to see the solicitors and she doesn’t know him at all. Her view was, if it wasn’t him, then it wasn’t.
29.
When Mr Clarke rang her, she hadn’t been expecting a call. A number came up on screen that she didn’t recognise. She was at home with her children. The caller said he was a taxi driver and he had been in a similar incident. He didn’t go into detail. That was the first she had heard of another taxi driver saying something similar had happened to him.
The test to be applied
30.
As noted very recently by this court in
R v Pabon
[2018] EWCA Crim 420
, the test to be applied in a case of this kind is to be found in
Dial v Trinidad and Tobago
[2005] UKPC 4
;
[2005] 1 WLR 1660
, where Lord Brown of Eaton-under-Heywood (giving the judgment of the majority) said at [31]:
“…….the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have on the mind of the jury. That said, if the court regards the case as a difficult one, it may find it helpful to test its view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the jury to convict….”
Discussion
31.
It is important to note that the case as it went before the jury was not simply one man’s word against another. The prosecution were able to rely on the significant change in the defendant’s case between his police interview and the service of his defence case statement. In interview he had said that the complainant put his hand down the applicant’s trousers and groped his penis and testicles. There was no suggestion of oral sex. However, as already noted, the defence statement and the evidence given by the applicant before the jury were that the complainant had performed oral sex on him, to which the applicant had consented out of curiosity. The prosecution also placed emphasis on the complainant’s distressed state when phoning his friend KQ and when speaking to a police control room operator on the telephone shortly afterwards.
32.
Thus, at the conclusion of the trial, the prosecution case was in our view a very strong one. The combination of lies in interview; the improbability of the defendant allowing a passenger to perform oral sex on him “out of curiosity” on the defendant’s part and then masturbating in front of the passenger; and the distressed state of the complainant very shortly afterwards made for a formidable case, even against a defendant of previous good character.
33.
The fresh evidence from Mr Clarke was superficially plausible, consisting as it did of the evidence of an apparently independent witness that a passenger in Mr Clarke’s minicab called Steven living in the Mossley Hill area had apparently offered Mr Clarke oral sex in lieu of a fare. However, this evidence suffered from the following defects.
34.
Firstly, although the newsagent “Tony” who was the vital link bringing Mr Clarke into the story was allegedly “a friend of a friend” of Mrs Mohammed, the defence have not produced him as a witness, nor is there any satisfactory explanation (for example, in the form of a
Gogana
statement from the defence explaining how the fresh evidence was obtained) of what efforts have been made to trace him, for example by Mrs Mohammed identifying the friend she and “Tony” had in common.
35.
Secondly, there is a fundamental discrepancy between the evidence of Mrs Mohammed and Mr Clarke. Mrs Mohammed stated in evidence that Mr Clarke telephoned her out of the blue, and gave a vivid account of the surprise it caused her. Mr Clarke, however, said in his oral evidence that the first contact between them was that Mrs Mohammed rang him. This cannot simply be a failure to recall detail.
36.
Thirdly. the identification of the complainant by Mr Clarke from a photograph sent to him by Mrs Mohammed is in our view worthless for a number of reasons:
(a)
Mr Clarke had little more than a fleeting glance of his passenger. He says that his passenger was sitting behind him and never came into the front seat. After the alleged offer of oral sex was rejected the passenger left the vehicle.
(b)
There was no attempt to obtain from Mr Clarke any details of what the passenger looked like before he was shown a photograph of the complainant.
(c)
There was no attempt to allow Mr Clarke to see the photograph of the complainant together with at least 8 other photographs of similar looking men.
(d)
There was an interval of at least 19 months, and probably longer, between his encounter with the person in his minicab and identifying him from photographs of the complainant.
37.
In the post-
Turnbull
era Codes of Practice have been developed to circumscribe the way in which the police carry out an identification so as to try to prevent miscarriages of justice by erroneous identifications. The failures in the procedures carried out in this case when compared against the requirements of the Code underline the danger of relying on the identification by Mr Clarke. We have grave doubts as to whether the identification here adds anything at all to the defence case.
38.
Fourthly, Mr Gibson is correct to point out the improbability of a passenger at the Marriott Hotel in Liverpool City Centre wishing to go home to Mossley Hill (three miles from the centre) telephoning a local company based in Whiston (eight miles from the centre). It is just conceivable that this could have been done if Diamond Cabs at the time had a city-wide reach and Mr Clarke just happened to be in the city centre; but it remains improbable.
39.
Fifthly, Mr Clarke initially gave evidence that he didn’t tell the cab company at all about the passenger not paying on arrival in Mossley Hill, but offering oral sex instead; when asked a question about this by the court, he said he told the cab company that the fare had run off though he had given no other details.
40.
Sixthly, the incident in the present case, according to both prosecution and defence, started with the issue of oral sex before any issue of payment arose, whereas the incident described by Mr Clarke concerns an alleged offer of oral sex in lieu of payment of a fare.
41.
Putting all these factors together, each of the three members of this court takes the view that the fresh evidence raises no reasonable doubt as to the guilt of the applicant. We therefore consider that it fails the tests set out in section 23(2)(a) and (b) of the 1968 Act and should not be formally received in evidence.
42.
Mr Ford realistically accepted that if that were to be our decision, the fresh evidence being the only ground for seeking permission to appeal, permission to appeal against conviction should be refused and we so order.
Sentence
43.
The judge imposed a sentence of seven years six months comprising a custodial term of six years, six months and an extended licence period of one year under section 236A of the Criminal Justice Act 2003 (providing for an extended licence period of one year to be added to the custodial term in certain circumstances). The custodial term of 6½ years after a trial was plainly justified, and it is not suggested otherwise. However, the ever-vigilant staff of the Registrar of Criminal Appeals have noted that the Recorder made a technical error which was not picked up by counsel on either side. Because the victim of this offence was not a child under 13, section 236A was not applicable. We therefore grant permission to appeal against sentence, allow the appeal against sentence; quash the sentence imposed by the judge, and substitute a sentence of imprisonment for six years, six months. To that extent only the appeal succeeds. | {"ConvCourtName": ["Crown Court at Liverpool"], "ConvictPleaDate": ["16 January 2017"], "ConvictOffence": ["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 Liverpool"], "Sentence": ["seven years six months comprising a custodial term of six years, six months and an extended licence period of one year"], "SentServe": ["comprising a custodial term of six years, six months and an extended licence period"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["a taxi driver,"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["taxi driver, drove the complainant"], "VictimType": ["complainant"], "VicNum": ["complainant"], "VicSex": ["he"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["his home in Sefton Park"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["spent the night drinking"], "ProsEvidTypeTrial": ["told his friend KQ"], "DefEvidTypeTrial": ["did take place but was consensual and was instigated by the complainant."], "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": ["based on fresh evidence.", "key inconsistencies"], "SentGuideWhich": ["Sexual Offences (Amendment) Act 1992", "section 236A of the Criminal Justice Act 2003"], "AppealOutcome": ["appeal against conviction should be refused and we so order.", "quash the sentence imposed by the judge, and substitute a sentence of imprisonment for six years, six months."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["Recorder made a technical error"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["the fresh evidence raises no reasonable doubt as to the guilt of the applicant."]} | {"ConvCourtName": ["Crown Court At Liverpool"], "ConvictPleaDate": ["2017-01-16"], "ConvictOffence": ["rape"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court At Liverpool"], "Sentence": ["seven years six months comprising a custodial term of six years, six months and an extended licence period of one year"], "SentServe": ["Combination"], "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": ["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": ["Yes-drinking"], "ProsEvidTypeTrial": ["Victim testimony"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["No"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against conviction"], "AppealGround": ["key inconsistencies", "based on fresh evidence."], "SentGuideWhich": ["section 236A of the Criminal Justice Act 2003", "Sexual Offences (Amendment) Act 1992"], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence", "Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["Recorder made a technical error"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["the fresh evidence raises no reasonable doubt as to the guilt of the applicant."]} | 221 |
No. 2016/02644 A4 & 2016/02726 A4
Neutral Citation Number:
[2016] EWCA Crim 1614
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Wednesday 19
th
October 2016
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Thomas of Cwmgiedd
)
MR JUSTICE HOLROYDE
and
MRS JUSTICE McGOWAN DBE
- - - - - - - - - - - - - - - - - - -
R E G I N A
v
ALEXANDRIS KUDRIASOV
ANDRIS APSITIS
- - - - - - - - - - - - - - - - - - -
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 M Watson
appeared on behalf of the Appellant Alexandris Kudriasov
Miss E Leonard
appeared on behalf of the Appellant Andris Apsitis
- - - - - - - - - - - - - - - - - - -
J U D G M E N T
Wednesday 19
th
October 2016
THE LORD CHIEF JUSTICE:
I shall ask Mr Justice Holroyde to give the judgment of the court.
MR JUSTICE HOLROYDE:
1. These appellants, Alexandris Kudriasov and Andris Apsitis, were convicted after a lengthy trial in the Crown Court at Lincoln of two offences of wounding with intent to do grievous bodily harm, contrary to
section 18 of the Offences against the Person Act 1861
, and an offence of conspiracy to pervert the course of public justice. On 17
th
May 2016 the trial judge, His Honour Judge Hirst, sentenced each of them to a total of 18 years' imprisonment, comprising concurrent terms of 18 years' imprisonment for each of the
section 18
offences and two years' imprisonment for the conspiracy offence.
2. The appellants now appeal against the length of their sentences by leave of the single judge.
3. The offences were committed in Boston, Lincolnshire, on a Saturday evening in September 2015. The appellants and others drove to a block of flats which was the home of the victims of the offences of violence, Mr Kaleckas and Mr Likso. The group were armed and clearly intent on violence. Apsitis was carrying a knife. One of the group was carrying an extendable baton, and others had clubs. Kudriasov may have been carrying a golf club, though it is submitted on his behalf that the evidence pointed to his having acquired that weapon at the scene.
4. Mr Kaleckas and Mr Likso were smoking on a landing outside their flat when they saw the appellants and others coming up the stairs. They were immediately struck to the head and body. Both stumbled to the ground as they tried to escape to their flat. Mr Likso managed to get into the flat and picked up a golf club to defend himself. He was pursued into a bedroom, but used pieces of a dismantled bed to drive his attackers back as they continued to strike at him with clubs and the baton. Outside the flat he tried to help his friend Mr Kaleckas, who was on the ground being punched and stabbed by the appellant Apsitis and another man. The evidence showed that Apsitis stabbed Mr Kaleckas about eleven times to his front and back torso. Mr Likso was then driven back into his bedroom, where the appellant Kudriasov struck him on the head with a golf club. The blow was so violent that the head of the golf club broke off the shaft. Kudriasov then stabbed the shaft into Mr Likso's chest. Mr Likso was aware of another attacker holding a knife to his face, but then lost consciousness.
5. The appellants left the scene by car. They endeavoured to clean their clothing and footwear and the car. They were assisted in this by a third defendant who was also convicted of the conspiracy to pervert the course of public justice.
6. As a result of the attack, Mr Likso sustained a fractured skull, a large cut to the back of his head, and stab wounds to his chest and abdomen. He underwent surgery to repair a damaged part of his bowel. He spent a number of days in intensive care, and he underwent a further operation shortly before the trial. By the time of the trial he was still unable to lift heavy weights. His digestive system was impaired. He was suffering from post-traumatic stress disorder and was unable to work.
7. Mr Kaleckas suffered wounds to the side of his head, multiple stab wounds to the chest and abdomen, and stab wounds to his right hand and left elbow. As a result of his injuries, he has lost control over some of the fingers of one hand. He bears the scars of his wounds. He, too, suffers from post traumatic stress disorder. He has nightmares, and he too is unable to work. Thus, both victims suffer significant continuing disability.
8. The appellant Apsitis is now 37 years old. He has previously been convicted of offences which were not particularly serious and did not involve violence. The learned judge rightly treated him as being of effective good character.
9. The appellant Kudriasov is now 43 years old. He was of previous good character.
10. In his sentencing remarks the learned judge observed, with justification, that the injuries, serious as they were, could have been far worse. He concluded that the case fell within category 1 of the Sentencing Council's Definitive Guideline in relation to assault cases. The factors which the judge found indicated greater harm were that the assaults on both victims were sustained, and, at least in the case of Mr Likso, that the injury which was caused was serious in the context of the offence. The factors which he identified as indicating higher culpability were the significant degree of premeditation and the use of weapons.
11. Mr Watson and Miss Leonard, for whose succinct and focused submissions we are grateful, realistically accept that the
section 18
offences fell within category 1. That gives a starting point for each of those offences of twelve years' imprisonment, with a sentence range from nine to 16 years.
12. In addition, the judge rightly identified a number of aggravating features: first, the fact that the attacks took place in the victims’ home; secondly, the significant ongoing effect on both victims, and the fact that they had felt obliged not only to leave their homes, but also to leave this country; thirdly, the fear caused to persons who were present and witnessed the assault – one witness suffered a significant psychological effect and has lost her career; another felt obliged to leave the Boston area and so became separated from her family; fourthly, the fact that the aftermath of the incident was also witnessed by young children; and finally, the fact that the offences were committed under the influence of alcohol.
13. The judge treated the attempts made to clean the clothing and the car as an aggravating feature of the
section 18
offences, and so dealt with the conspiracy count by a concurrent sentence.
14. Neither counsel suggests that the judge was wrong to treat both appellants in the same way, or to structure the sentences in the way he did. It is, however, submitted on behalf of both appellants that the judge failed to give sufficient weight to a number of important matters of mitigation. So far as the offences are concerned, it is submitted that the judge should have given greater weight to the role played by the appellants. Counsel tell us, and we of course accept from them, that in the course of the sentencing hearing the judge had indicated that neither of the appellants was the leading member of the group of attackers and that they had been brought into the incident by another or others who had not been convicted. We understand that the judge took the view that it was someone other than the two appellants who, to adopt counsel's helpful phrase, "led the charge". No specific observation or finding to that effect was made in the sentencing remarks.
15. It is further argued that the judge was wrong to reject a submission that there had been an element of provocation, which provided some mitigation for the offences of violence. In this regard, counsel pointed to evidence that there had been an incident earlier that day in which Kudriasov had been injured. They argued, in the alternative, in their respective written grounds, that the judge should have found some mitigation in evidence suggesting that there may have been some kind of drugs background to the attack on Messrs Kaleckas and Likso.
16. Turning to personal mitigation, both appellants submit that the judge, although he specifically referred in his sentencing remarks to the appellants' previous good character, or effective good character, failed to give sufficient weight to that aspect of the case. Counsel pray in aid that both appellants are hard-working men with family responsibilities, and that both have behaved well and made good use of their time in custody whilst on remand awaiting trial.
17. Next, specific submissions are made on behalf of the appellant Apsitis to the effect that his inability to speak or read English will mean that time in custody will be harder for him than for most other prisoners. It is also submitted on his behalf that the judge should have given some weight to the fact that Apsitis had always admitted presence, and that at a plea and case management hearing he had admitted guilt of an offence of unlawful wounding.
18. On behalf of the appellant Kudriasov, it is submitted that the judge was wrong to find that he may well have brought a golf club to the scene. It is, however, realistically acknowledged that, whether he did or not, he was part of a group who were collectively armed.
19. For those various reasons counsel submit that the total sentences of 18 years' imprisonment were manifestly excessive in length.
20. We accept that each of those points is well-founded, but we have to consider the weight which can be given to them. It seems to us that, whether or not the appellants were the leading members of the group, there can be no doubt that they played leading roles in the joint violence which caused such serious injury to the two victims.
21. As to the suggested provocation or background to the violence, the judge specifically addressed this in his sentencing remarks. He said that he did not know what had been the cause of the attack. He noted that one appellant had not given evidence, and the other had given a lying account about a drugs purchase which went wrong. He said that each of the appellants had had the opportunity to say what the true cause of the incident was, but had chosen not to do so. In those circumstances we can well understand the learned judge's conclusion. We would observe that it is, in any event, difficult to see how either a suggested drugs-related background or a wish to seek revenge for an earlier incident could provide mitigation.
22. As to the matters of personal mitigation, we are confident that the learned judge must have taken these into account when he passed sentence.
23. We must then step back and consider the overall submission, which can be summarised in this way. The sentencing guideline for a single offence of this nature indicates a starting point of twelve years and a range which goes up to 16 years. Counsel argue, cogently, that even taking into the fact that there were two offences of serious violence, an increase from the starting point of twelve years to a sentence of 18 years was manifestly excessive. Counsel invite the court to consider what sentence would have been passed if the offender whom the judge did regard as having led the charge had been convicted.
24. We see merit in those submissions. We are persuaded that the learned judge did on this occasion move too far upwards from the guideline starting point. In our judgment, for the offences of wounding with intent, concurrent sentences of 16 years' imprisonment would have sufficed to reflect the undoubted gravity of the offending.
25. In those circumstances, we allow each of the appeals to this extent. We quash the concurrent sentences of 18 years' imprisonment, and we substitute for them concurrent sentences of 16 years' imprisonment.
26. We make no alteration to the concurrent term for the offence of conspiring to pervert the course of public justice.
27. Thus, the effect of our decision is that for each of these appellants the total term of imprisonment is reduced from 18 years to 16 years. | {"ConvCourtName": ["Crown Court at Lincoln"], "ConvictPleaDate": ["17th May 2016"], "ConvictOffence": ["conspiracy to pervert the course of public justice", "wounding with intent to do grievous bodily harm"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["he had admitted guilt of an offence of unlawful wounding."], "PleaPoint": ["at a plea and case management hearing"], "RemandDecision": ["time in custody"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Lincoln"], "Sentence": ["18 years' imprisonment", "two years' imprisonment"], "SentServe": ["concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["Alexandris Kudriasov and Andris Apsitis"], "OffAgeOffence": ["is now 43 years old.", "is now 37 years old."], "OffJobOffence": ["hard-working"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["the fact that the offences were committed under the influence of alcohol."], "OffVicRelation": ["data not available"], "VictimType": ["Mr Kaleckas and Mr Likso."], "VicNum": ["Mr Kaleckas and Mr Likso"], "VicSex": ["Mr Kaleckas and Mr Likso"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["home of the victims"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": [". Mr Kaleckas suffered wounds to the side of his head, multiple stab wounds to the chest and abdomen, and stab wounds to his right hand and left elbow. As a result of his injuries, he has lost control over some of the fingers of one hand. He bears the scars of his wound", "fractured skull, a large cut to the back of his head, and stab wounds to his chest and abdomen. He underwent surgery to repair a damaged part of his bowel. He spent a number of days in intensive care, and he underwent a further operation shortly before the trial. By the time of the trial he was still unable to lift heavy weights. His digestive system was impaired. He was suffering from post-traumatic stress disorder and was unable to work.", "witness"], "DefEvidTypeTrial": ["at a plea and case management hearing he had admitted guilt of an offence of unlawful wounding."], "PreSentReport": ["data not available"], "AggFactSent": ["The appellants left the scene by car.", "post-traumatic stress disorder", "group", "the fact that the offences were committed under the influence of alcohol.", "they had felt obliged not only to leave their homes, but also to leave this country", "attacks took place in the victims’ home;", "unable to work.", "suffers from post traumatic stress disorder. He has nightmares, and he too is unable to work.", "who was on the ground being punched and stabbed", "clubs", "significant ongoing effect on both victims", "immediately struck to the head and body.", "the aftermath of the incident was also witnessed by young children", "both victims suffer significant continuing disability.", "armed", "carrying a knife", "fear caused to persons who were present and witnessed the assault", "extendable baton"], "MitFactSent": ["previous good character.", "effective good character.", "neither of the appellants was the leading member of the group of attackers and that they had been brought into the incident by another or others who had not been convicted", "previous good character, or effective good character"], "VicImpactStatement": ["data not available"], "Appellant": ["These appellants, Alexandris Kudriasov and Andris Apsitis, were convicted"], "CoDefAccNum": ["third defendant"], "AppealAgainst": ["appeal against the length of their sentences"], "AppealGround": ["They argued, in the alternative, in their respective written grounds, that the judge should have found some mitigation in evidence suggesting that there may have been some kind of drugs background to the attack on Messrs Kaleckas and Likso.", "judge failed to give sufficient weight to a number of important matters of mitigation", "the judge was wrong to find that he may well have brought a golf club to the scene", "inability to speak or read English will mean that time in custody will be harder for him than for most other prisoners.", "judge was wrong to reject a submission that there had been an element of provocation"], "SentGuideWhich": ["Sentencing Council's Definitive Guideline in relation to assault cases.", "section 18 of the Offences against the Person Act 1861"], "AppealOutcome": ["we allow each of the appeals to this extent. We quash the concurrent sentences of 18 years' imprisonment, and we substitute for them concurrent sentences of 16 years' imprisonment."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["15. It is further argued that the judge was wrong to reject a submission that there had been an element of provocation, which provided some mitigation for the offences of violence. In this regard, counsel pointed to evidence that there had been an incident earlier that day in which Kudriasov had been injured. They argued, in the alternative, in their respective written grounds, that the judge should have found some mitigation in evidence suggesting that there may have been some kind of drugs background to the attack on Messrs Kaleckas and Likso.16. Turning to personal mitigation, both appellants submit that the judge, although he specifically referred in his sentencing remarks to the appellants' previous good character, or effective good character, failed to give sufficient weight to that aspect of the case. Counsel pray in aid that both appellants are hard-working men with family responsibilities, and that both have behaved well and made good use of their time in custody whilst on remand awaiting trial.17. Next, specific submissions are made on behalf of the appellant Apsitis to the effect that his inability to speak or read English will mean that time in custody will be harder for him than for most other prisoners. It is also submitted on his behalf that the judge should have given some weight to the fact that Apsitis had always admitted presence, and that at a plea and case management hearing he had admitted guilt of an offence of unlawful wounding.18. On behalf of the appellant Kudriasov, it is submitted that the judge was wrong to find that he may well have brought a golf club to the scene. It is, however, realistically acknowledged that, whether he did or not, he was part of a group who were collectively armed.19. For those various reasons counsel submit that the total sentences of 18 years' imprisonment were manifestly excessive in length.", "judge failed to give sufficient weight to a number of important matters of mitigation"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Crown Court At Lincoln"], "ConvictPleaDate": ["2016-05-17"], "ConvictOffence": ["conspiracy to pervert the course of public justice", "wounding with intent to do grievous bodily harm"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["at a plea and case management hearing"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court At Lincoln"], "Sentence": ["two years' imprisonment", "18 years' imprisonment"], "SentServe": ["Concurrent"], "WhatAncillary": ["Don't know"], "OffSex": ["All Male"], "OffAgeOffence": ["42", "36"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Yes-drinking"], "OffVicRelation": ["Don't know"], "VictimType": ["Individuals"], "VicNum": ["2"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["eye witness", "medical evidence"], "DefEvidTypeTrial": ["admitted to offence of lesser seriousness"], "PreSentReport": ["Don't know"], "AggFactSent": ["the fact that the offences were committed under the influence of alcohol.", "the aftermath of the incident was also witnessed by young children", "fear caused to persons who were present and witnessed the assault", "they had felt obliged not only to leave their homes, but also to leave this country", "significant ongoing effect on both victims", "attacks took place in the victims’ home;", "both victims suffer significant continuing disability.", "suffers from post traumatic stress disorder. He has nightmares, and he too is unable to work.", "unable to work.", "post-traumatic stress disorder", "left victims", "who was on the ground being punched and stabbed", "immediately struck to the head and body.", "clubs", "extendable baton", "carrying a knife", "group", "armed"], "MitFactSent": ["previous good character, or effective good character", "neither of the appellants was the leading member of the group of attackers and that they had been brought into the incident by another or others who had not been convicted", "previous good character.", "effective good character."], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["2"], "AppealAgainst": ["appeal against the length of their sentences"], "AppealGround": ["the judge was wrong to find that he may well have brought a golf club to the scene", "inability to speak or read English will mean that time in custody will be harder for him than for most other prisoners.", "judge did not take into account all mitigating factors", "judge was wrong to reject a submission that there had been an element of provocation", "judge failed to give sufficient weight to a number of important matters of mitigation"], "SentGuideWhich": ["Sentencing Council's Definitive Guideline in relation to assault cases.", "section 18 of the Offences against the Person Act 1861"], "AppealOutcome": ["Allowed&Sentence Replaced by More Excessive Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["trial judge did not consider mitigating factors correctly", "judge failed to give sufficient weight to a number of important matters of mitigation"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 586 |
Neutral Citation Number:
[2018] EWCA Crim 2693
Case number: 2018 00189/01126 C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday 23 November 2018
B e f o r e
:
LORD JUSTICE LEGGATT
MR JUSTICE LEWIS
THE RECORDER OF RICHMOND ON THAMES
HIS HONOUR JUDGE LODDER QC
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R E G I N A
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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)
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MR MARK FRASER
appeared on behalf of the
Applicant
MISS SUSANNAH BRAMLEY
appeared on behalf of the
Crown
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J U D G M E N T
(Approved)
WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
LORD JUSTICE LEGGATT:
1. On 13 December 2017, after a trial before His Honour Judge Moss and a jury in the Crown Court at Guildford, the appellant was convicted of three offences of indecent assault, contrary to
section 14
of the
Sexual Offences Act 1956
, and one offence of indecency with a child, contrary to
section 1
of the
Indecency with Children Act 1960
. On 15 February 2018 he was sentenced for these offences to terms of imprisonment ranging from one to two years - two years being the maximum term that could be passed under the legislation that applied when the offences were committed. The sentences were ordered to be served concurrently with each other, making the total sentence, therefore, one of two years' imprisonment.
1.
Applications for leave to appeal against both conviction and sentence were referred to the Full Court by the Registrar. We granted leave to appeal at the outset of the hearing and have proceeded to hear the appeals.
2.
Reporting restrictions apply to this case, and nothing must be published which is likely to lead members of the public to identify the victim of the offences.
Background
3.
It has become common in recent years for cases involving allegations of sexual assault to be prosecuted long after the relevant events are alleged to have occurred but, by any standard, the length of time which elapsed between the offences alleged in this case and the trial of the allegations was immense. The appellant was born on 27 May 1946. The offences are said to have occurred at some time during the two year period between 9 June 1960 and 8 June 1962, that is to say when the appellant was aged between 14 and 16 years old. The complainant is his younger sister, who was born in June 1949 and was aged between 11 and 13 at the relevant time. The trial was therefore concerned with events said to have occurred more than 55 years earlier.
4.
The prosecution case was that the complainant was sexually assaulted by the appellant in their family home. She shared a bedroom with an older sister and the appellant shared a bedroom with a younger brother. The complainant testified that the appellant would enter her bedroom when she was in bed at times when their parents and the older sister were out. On these occasions, he would touch her all over her body, at first over, and then under, her nightie. To keep her quiet, he would put his hand over her mouth or sometimes would put a flannel in her mouth.
5.
The four counts on the indictment related to four different forms of sexual assault which the complainant said all took place on multiple occasions. Count 1 alleged touching the complainant's breasts, and count 2 digital penetration of her vagina. Count 3, the offence of indecency with a child, charged the appellant with making the complainant masturbate him, and count 4 with making her perform oral sex on him.
6.
The complainant gave evidence that she believed that this abuse went on over a period of about a year but inevitably she could not identify particular occasions and dates; and the prosecution case was accordingly put on the basis that each form of assault occurred at least twice in the period of two years covered by the charge.
7.
The complainant's evidence was supported by evidence given by her younger brother that he recalled once, late at night, hearing the appellant's voice coming from the complainant's bedroom and the complainant saying, "That's enough, stop, [X]", after which the appellant came into the bedroom that he shared with his younger brother. There was also evidence given by the complainant's husband that, some time after their marriage in the 1970s, she had confided in him that she had been abused by her older brother when she was a young girl. And a woman police officer, who is a friend of the complainant, gave evidence that the complainant told her about the alleged assaults in September 2013. It was as a result of the encouragement of this friend that the complainant ultimately reported the matter to the police.
8.
It took a long time for the case to come to trial, mainly because the appellant is now seriously ill - a matter to which we will return. The first hearing in the magistrates' court took place in September 2014. There was a plea and case management hearing in the Crown Court in January 2015. It took a long time for medical reports to be provided about the state of the appellant's health and information emerged in a piecemeal fashion.
9.
His medical condition, as it was in 2017, and as it is now on the basis of a recent medical report which has been obtained and which we have admitted in evidence on this appeal, can be summarised as follows. The appellant has advanced diabetes and many complications which arise from this. These include: eye damage, with poor vision; peripheral neuropathy, leading to numbness, loss of sensation and pain in his feet; and peripheral vascular disease, which has resulted in the amputation of his left leg below the knee and the amputation of three right toes. He cannot walk and is confined to a wheelchair. Most critically, he has end-stage kidney disease and relies on regular dialysis treatment three times a week to keep him alive. He has also suffered from unrelated conditions, including a perforated bowel (for which he spent over four months in hospital) and upper gastrointestinal bleeding, for which he required blood transfusions. Those episodes occurred during the period that the case was proceeding to trial. In recent years, he has spent his time constantly in and out of hospital.
10.
In a report dated 8 December 2016 a Dr Suckling, a consultant nephrologist, estimated the appellant’s chance of surviving five years as only 15-20% and his chance of surviving ten years as only 5%. The updated report provided to us at this hearing from a different consultant nephrologist estimates his chance of surviving ten years from when his dialysis started in 2012 as only 15-20%.
11.
At a further case management hearing in February 2017, the court heard an application that it would be an abuse of process to try the appellant. That application was rejected. On the basis of the medical evidence the judge concluded that, although the appellant's medical situation was unstable and unpredictable, he was fit at times to stand trial. However, he could not attend court on days when he undergoes dialysis, and on any day when he attended court he could not sustain attendance for more than about two hours.
12.
The trial was listed to begin on 27 November 2017, with a three-week time estimate, and a direction that the court would sit for a maximum of half a day on three days a week. On 3 November 2017 a pre-trial review took place, at which it was confirmed that the trial would start on 27 November. The appellant was to attend on Monday, Wednesday and Friday of each week for two hours a day, and there were to be no live witnesses on days when the appellant did not attend.
13.
On the first day of the trial, Monday 27 November 2017, the appellant did not attend court as he had been taken to hospital. The case was adjourned until the following day so that enquiries could be made about when he would be fit enough to attend. On the next day the court was told that there was a realistic expectation that the appellant would be able to attend court on the Friday, 1 December, and the trial was adjourned until then.
14.
On the Friday, the appellant had still not been discharged from hospital. The prosecution applied to proceed in his absence. The application was granted, a jury was sworn, the prosecution opened its case and the recording of the complainant's ABE interview was played to the jury. The trial was then adjourned until the Monday, 4 December 2017.
15.
On that day the appellant was still absent. The trial continued in his absence in the morning, with the complainant being asked a supplemental question and then cross-examined by the appellant's counsel. Her evidence was followed by that of her husband. At 1pm the court then adjourned until the Wednesday. On Wednesday, 6 December, the appellant attended court for the first time. The prosecution evidence was completed on that day.
16.
When the court next sat on the Friday, 8 December, the appellant was again present, but in his counsel's opinion was not in a fit state to give evidence. An application was made for him to give evidence on the following Monday, which was granted.
17.
On that Monday, 11 December, the appellant was in attendance and fit to give evidence. He gave evidence and was cross-examined. The statement of the other defence witness (who was the appellant's and complainant's older sister) was read to the jury. At 1pm the trial was adjourned.
18.
When the court next sat on Wednesday, 13 December, the appellant was once more in attendance. Closing speeches were made and the judge summed up the case. The appellant left court at 1pm, by which time the summing-up was almost completed. The jury retired shortly after the lunch adjournment at 2pm. At 2.56pm they returned unanimous guilty verdicts. The case was then adjourned for reports to be obtained before sentencing.
The appeal against conviction
19.
The ground on which the appellant's convictions are challenged on this appeal is that the judge is said to have been wrong to proceed with the trial in his absence. On behalf of the appellant Mr Fraser submits - and is undoubtedly correct - that it is a fundamental principle of criminal justice in this country that a person accused of a crime has a right to
be present during his trial. It is accepted that this right is not unfettered and that the court has power to proceed in the absence of a defendant. We were referred, as was the judge, to the leading case of
R v Jones
[2003] 1 AC 1
, a decision of the House of Lords, and to the decision of Court of Appeal in
R v Howson
(1982) 74 Cr App R 172
. Those and other authorities make it clear that the power to proceed in the absence of a defendant should be exercised with great caution, even when the defendant has voluntarily absented himself, and all the more so if his absence is involuntary as a result of illness, as it was in this case.
20.
It is further submitted - and this has been the focus of Mr Fraser's oral submissions this morning - that the appellant was prejudiced by the fact that the complainant's evidence, including cross-examination, was given in his absence because the appellant was subsequently criticised by the prosecution for raising certain matters in his evidence which had not been put to the complainant when she was cross-examined and it was suggested that he had fabricated that evidence. There were three such matters: the first related to building wigwams with the complainant when she was 8 years old; the second to the fact that their father worked every night according to the appellant, and not irregular shifts as the complainant had said; and the third matter (which is said to be the most significant) was that the appellant said in evidence that he took the complainant dancing on many occasions in her mid to late teens, the implication being that she would not have gone with him if her allegations were true.
21.
All these matters were mentioned by the appellant to his counsel on the first day that he attended court and it is said that his recollection of them was prompted by seeing his younger brother giving evidence. Mr Fraser submits that, if the trial had not been started in the absence of the appellant, it is likely, or at least possible, that the appellant would have raised the matters in time for his counsel to put them to the complainant in cross-examination, thus avoiding the suggestion of late fabrication.
22.
In relation to this last point, it does not seem to us that either the matters themselves or the appellant's late reference to them were of any real consequence in the context of the evidence and the case overall. But in any event they are not thoughts which were triggered by seeing the complainant's evidence-in-chief since the appellant was not there to see that evidence. Nor was the appellant prevented by his absence from court from communicating them to his representatives. Moreover, he had had many months, if not years, while the case was proceeding to trial to reflect on the allegations and the evidence that he would give. We accept that the appellant was ill for long spells during that period, but we do not accept that that prevented him from giving attention to the subject matter of this case, which must have been very much on his mind. In any event, as Miss Bramley has pointed out this morning, to the extent that there was prejudice through the late raising of the matters in question, there would have been some such prejudice in any event based on the fact on which she relied as part of her argument at the trial that no reference to those matters had been made by the appellant either when interviewed by the police or in his defence statement, which there had been many opportunities to consider during the course of the proceedings and, if necessary, amend.
23.
In these circumstances, we reject the suggestion that any prejudice which the appellant sustained as a result of raising these matters late can be attributed to the judge's decision
to start the trial in his absence. More generally, we do not accept that the decision to proceed with the trial in the absence of the appellant (to the extent that it did proceed in his absence) was unfair. The judge applied the correct legal principles and took account of the relevant factors. Those included the long delays, albeit not through fault of the appellant, in bringing the case to trial; the many adjournments which had already been granted, including when the trial started; the interests of witnesses, including the complainant, who had been waiting a long time to give evidence; and, crucially, whether the appellant's counsel was fully instructed and able to represent his interests without him being present, which Mr Fraser confirmed to the judge that he was. It was also highly relevant that the complainant's evidence-in-chief, apart from her answer to one supplementary question, was contained in a video recording which the defence received months before the trial. Although the appellant did not view the recording, he had seen a transcript of it. Accordingly, although he was not in court to see the recording played to the jury, the appellant knew exactly what evidence would be given by the complainant as her evidence-in-chief.
24.
Furthermore, this is not a case where the defendant was prevented by his ill-health from giving evidence. The appellant was able to, and did, give evidence in court in his own defence – which, for a defendant who wishes to testify, is the most critical aspect of the right to participate in the trial: see the recent decision of this court in
R v Welland
[2018] EWCA Crim 2036
. The appellant was also present in court to hear the rest of the defence evidence, closing speeches and the judge's summing-up.
25.
In the circumstances we think it impossible to say that the judge exercised his discretion wrongly in proceeding with the trial in the appellant's absence to the limited extent that he did. The appeal against conviction is therefore dismissed.
26.
We would add for completeness in relation to that appeal that an application was made by Mr Fraser this morning to rely on a recent witness statement made by the appellant. That statement refers to the three matters already mentioned which he gave evidence about anyway at the trial but in addition certain other similar evidence. We can see no justification at all for admitting that evidence as there is no good reason, in our opinion, why that evidence, if considered relevant, could not have been adduced at the appellant's trial.
27.
The appeal against sentence
28.
The judge, in his detailed sentencing remarks, outlined the facts of the offences. He referred to a witness statement made by the complainant describing the impact of the offences on her. In that statement she relates how, even though the incidents happened some 55 years ago, she has carried the effects of them with her ever since, in the form of periodic anxiety and depression and feelings of uncleanliness and insecurity. The judge noted that she has, as she says, been fortunate to find the love and support of a kind and sympathetic husband, to whom she has been married since the age of 21.
29.
In relation to the appellant, the judge noted that at the time when he committed the offences he was himself a boy of only 14. When sentenced, he was 71 years old. In all the years in between he had been of good character, having no conviction for any criminal offence apart from a motoring offence. He has had, in the judge's description, a life filled with much sadness and sorrow and illness. He worked as a boat builder. He was married, but his marriage broke down. He had two sons and a daughter. One of his sons committed suicide and the other also died. His former wife has died. He is now gravely ill. The judge referred to the appellant's illnesses and numerous disabilities, and to the fact, which we have mentioned, that his life expectancy is now extremely low. The judge said that he could not ignore the fact that the appellant is gravely ill.
30.
The judge noted that under today's Sentencing Guidelines the general sentencing levels for offences of the kind of which the appellant has been convicted are significantly higher than the maximum sentences which the court has power to impose under the legislation which is applicable because it was in force at the time when the offences were committed. The judge said that he had been invited to conclude that he should impose a suspended sentence, but he was satisfied that to do so would not send out the right signal to the appellant or to anyone else. He concluded that the appropriate sentence was one of two years' imprisonment.
31.
On behalf of the appellant, Mr Fraser has submitted that the judge was wrong in all the circumstances to impose a sentence of immediate imprisonment, and that taking into consideration his youth when the offences were committed, how long they were committed, the appellant's lack of criminal convictions and the grave state of his health, the sentence should have been suspended. Alternatively, Mr Fraser has submitted that the court can and should properly take account of the medical situation of the appellant and reduce his sentence as an act of mercy, in accordance with established principles.
32.
The Crown responds that the judge took account of all the relevant circumstances and factors, and that the sentence imposed cannot be said to have been manifestly excessive. However, the Crown accepts the principle that the court can, as a matter of mercy, take account of the appellant's serious ill-health.
33.
We agree that the judge considered the relevant factors, but we do not think that he accorded to some of those factors the weight they deserve. It is essential to bear in mind the appellant's young age when these crimes were committed. Even if the court were dealing with recent offences, that would be a major mitigating factor. The current guideline sentence lengths to which the judge referred in his remarks are for adult offenders; a significant reduction would be required in sentencing a boy aged 14.
34.
Second, it was at the trial, and is at this distance in time, impossible to establish to the criminal standard of proof the number of occasions when each type of offence occurred. That is why the prosecution case was put at the trial on the basis that each type of offence was committed on at least two occasions. A person convicted of a crime is entitled to be sentenced on the basis of the facts which have been proved beyond reasonable doubt, and only those facts. That means that, for the purpose of sentencing the appellant, it must be assumed that the eight occasions proved at the trial were the only occasions when the offending occurred.
35.
Third, this is not just an ordinary case of an offender who has no previous criminal convictions: this appellant has lived between 55 and 60 years - the best part of a lifetime - since he committed these offences without ever offending again. That is a factor to which considerable weight should be given.
36.
Last, and by no means least, the appellant is, as the judge recognised, gravely ill. The medical evidence indicates that, to put it bluntly, he is very near the end of his life.
37.
Long, long after the events occurred crimes committed by the appellant in his youth have caught up with him. He has been tried and convicted by a jury. The complainant has been vindicated. We do not underestimate the impact which the offences have had on her and what she has suffered. We consider that the judge was entitled to pass an immediate prison sentence to mark this offending, but that is all that it can properly do. Matters would have been different if the appellant had been prosecuted and convicted some time ago, but in his present state of illness and in all the circumstances of this case no purpose is served by keeping him in prison. It is punishment enough that he has been publicly convicted and imprisoned, and will end his life in shame. In our opinion the sentence imposed is, in justice and in mercy, longer than was necessary. It should be quashed and replaced by a sentence of one year's imprisonment on all counts concurrent. To that extent this appeal is allowed.
38.
MR FRASER: Would it be possible, my Lord, to have a post hearing conference with F?
39.
THE CLERK OF THE COURT: We can arrange that, my Lord.
40.
MR FRASER: Thank you, I am grateful. | {"ConvCourtName": ["Crown Court at Guildford"], "ConvictPleaDate": ["13 December 2017"], "ConvictOffence": ["indecency with 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": ["total sentence, therefore, one of two years' imprisonment"], "SentServe": ["concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["between 14 and 16 years old"], "OffJobOffence": ["worked as a boat builder", "between 14 and 16 years old"], "OffHomeOffence": ["in their family home"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["his younger sister"], "VictimType": ["the victim"], "VicNum": ["the victim"], "VicSex": ["She"], "VicAgeOffence": ["aged between 11 and 13"], "VicJobOffence": ["aged between 11 and 13"], "VicHomeOffence": ["in their family home"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["The complainant testified", "evidence given by her younger brother"], "DefEvidTypeTrial": ["medical evidence", "defence witness"], "PreSentReport": ["data not available"], "AggFactSent": ["abuse went on over a period of about a year", "periodic anxiety and depression"], "MitFactSent": ["appellant is gravely ill", "appellant's young age"], "VicImpactStatement": ["statement made by the complainant describing the impact"], "Appellant": ["Applicant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against both conviction and sentence"], "AppealGround": ["the judge is said to have been wrong to proceed with the trial"], "SentGuideWhich": ["section 14 of the Sexual Offences Act 1956", "section 1 of the Indecency with Children Act 1960.", "Sentencing Guidelines"], "AppealOutcome": ["appeal against conviction is therefore dismissed.", "quashed and replaced by a sentence of one year's imprisonment on all counts concurrent"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["no purpose is served by keeping him in prison. It is punishment enough that he has been publicly convicted"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["impossible to say that the judge exercised his discretion wrongly"]} | {"ConvCourtName": ["Crown Court At Guildford"], "ConvictPleaDate": ["2017-12-13"], "ConvictOffence": ["indecency with a child", "indecent assault"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Guildford"], "Sentence": ["total sentence, therefore, one of two years' imprisonment"], "SentServe": ["Concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["14-16"], "OffJobOffence": ["Employed", "Child"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Relative"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Female"], "VicAgeOffence": ["11-13"], "VicJobOffence": ["Child"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Witness testimony", "Victim testimony"], "DefEvidTypeTrial": ["defence witness", "medical evidence"], "PreSentReport": ["Don't know"], "AggFactSent": ["Psychological harm", "Prolonged"], "MitFactSent": ["appellant's young age", "appellant is gravely ill"], "VicImpactStatement": ["Yes"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against both conviction and sentence"], "AppealGround": ["the judge is said to have been wrong to proceed with the trial"], "SentGuideWhich": ["Sentencing Guidelines", "section 1 of the Indecency with Children Act 1960.", "section 14 of the Sexual Offences Act 1956"], "AppealOutcome": ["Allowed&Sentence Replaced by More Excessive Sentence", "Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["no purpose is served by keeping him in prison. It is punishment enough that he has been publicly convicted"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["impossible to say that the judge exercised his discretion wrongly"]} | 95 |
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
NEUTRAL CITATION NUMBER:
[2021] EWCA Crim 659
Case No:
2019/02727/B1
Royal Courts of Justice
The Strand
London
WC2A 2LL
Thursday 22
nd
April 2021
B e f o r e:
LADY JUSTICE CARR DBE
MR JUSTICE LAVENDER
THE RECORDER OF NEWCASTLE
(
His Honour Judge Sloan QC
)
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
____________________
R E G I N A
- v –
ALEXANDER STEPHEN ANDREWS
____________________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
____________________
Non-Counsel Application
____________________
J U D G M E N T
___________________
Thursday 22
nd
April 2021
LADY JUSTICE CARR:
I shall ask Mr Justice Lavender to give the judgment of the court.
MR JUSTICE LAVENDER:
1.
This is a renewed application for an extension of time (15 days) in which to apply for leave to appeal against conviction following refusal by the single judge.
2.
On 21 March 2019 in the Crown Court at Oxford the applicant pleaded guilty to two counts of being the owner of a dog which caused injury to a person while dangerously out of control, contrary to
section 3(1)
and (4) of the
Dangerous Dogs Act 1991
. He was sentenced to concurrent terms of 18 months' imprisonment on each count. He was ordered to pay a victim surcharge of £140, a total of £2,750 in compensation, a contribution to the costs of the prosecution in the sum of £4,000 and the costs of kennelling his dog, in the sum of £9,820.23. A contingent destruction order was made in respect of the dog and the applicant was disqualified from keeping a dog without limit of time.
3.
The applicant was the owner of a black Staffordshire Bull Terrier named "Piglet", to whom he was clearly very attached. In 2017 the applicant was living in Oxford and regularly walked his dog along Parks Road. The applicant did not like the fact that a number of cyclists did not dismount at a certain location on the pavement in Parks Road where building works were taking place and blocking the cycleway. It appears that a sign telling cyclists to dismount may have been removed.
4.
The case for the prosecution in relation to the first incident was as follows. On 9 October 2017 the applicant was walking his dog in Parks Road. The applicant spoke to a number of cyclists, including Paul Mitchell. The dog bit Mr Mitchell once above his left knee, causing a superficial injury. That was the subject of count 1. We have seen photographs of the injury allegedly caused by the dog and a video of the incident taken on Mr Mitchell's body-worn video camera, which the prosecution say shows the applicant's inability to control his dog.
5.
We entirely understand why the prosecution say that this video shows that the applicant was unable to control his dog and why a jury might have concluded that the dog was dangerously out of control, even though it was on a lead. Indeed, at one point in the video the applicant said, "I suggest you don't get any closer", which was clearly a reference to the dog. Mr Martin replied, "He should be muzzled." Moreover, a passer-by said to the applicant, "I really recommend you train that guy, man. That's going to be a real danger."
6.
The prosecution's case as to the second incident was that the applicant was in the same location with his dog at about 10.15am on 14 November 2017 when Victoria Lackey was cycling towards him in the direction of Broad Street. The applicant stood facing her, shouted at her and told her to dismount. As she passed him, the dog bit her and hung on to her leg for three to five metres. She sustained a wound to her right leg measuring 2 centimetres in depth, which penetrated the tissue, but not the muscle. Again we have seen photographs of this injury.
7.
The police seized the applicant's dog on 20 November 2017.
8.
The applicant instructed counsel, Michael Peters, and had a conference with him on 2 November 2018, which he says lasted for three hours. According to the applicant, Mr Peters advised him that his case was winnable. 2 November 2018 was the date on which an unsigned defence statement was uploaded to the Digital Case System. According to that document, the applicant denied that his dog was out of control on either occasion, asserted that Mr Mitchell cycled right up to his dog, who became scared and distressed, denied that his dog bit Mr
Mitchell, asserted that Miss Lackey cycled directly towards his dog and failed to stop, as a result of which the dog became distressed and reacted in an instinctive, defensive manner.
9.
The applicant's trial was listed to commence on 20 March 2019. His original counsel, Mr Peters, was on holiday on that day. The applicant applied, unsuccessfully, for an adjournment of his trial. The applicant was unrepresented on 20 March 2019 and the hearing was adjourned to the following day for him to seek representation. He was given a copy of the prosecution opening note.
10.
On 21 March 2019 the applicant was represented by Sean Smith of counsel. The applicant pleaded guilty to both counts. We will return to the events of that day.
11.
The applicant says that he tried to initiate his appeal within 28 days of his conviction, but that he was unfamiliar with the process and did not follow the correct procedure. In those circumstances, we have considered the merits of the proposed grounds of appeal.
12.
The applicant has drafted his own grounds of appeal. We make allowance for the fact that he is not a lawyer. The first page lists eight grounds of appeal which, although not numbered, we will refer to by number as if they were numbered in the order in which they appear. The applicant has also drafted a number of other documents, including: a 13 page letter to the judge, dated 10 April 2019; a ten page response to a statement from Mr Smith; 36 pages of submissions in response to the single judge's decision; and a 26 page executive summary prepared for this hearing.
13.
We have read all of these documents and have taken account of them. We do not intend to deal with many of the points which are raised by the applicant, a large number of which are simply irrelevant to this hearing. For instance, he complains that the seizure of his dog was unlawful. However, the legality of the seizure has no bearing on the question which we have to decide.
14.
The applicant is a layman and may not appreciate it, but the question which would arise on any appeal is a narrow one. It is whether his conviction was safe. Putting it another way, an appeal is not an opportunity for a wide-ranging exploration of complaints about the investigation or prosecution of the applicant or the treatment of his dog. Rather, it is concerned solely with the question of whether or not his conviction was safe.
15.
Ordinarily, the conviction of a defendant who pleads guilty is safe because, by pleading guilty, the defendant has admitted his guilt. It follows that the circumstances in which this court would allow an appeal against conviction following a plea of guilty are extremely limited.
16.
In his letter to the judge, the applicant set out the reason why he said that he pleaded guilty. The principal reason was that Mr Smith had advised him that he had only a slim chance of acquittal. The applicant did not have to accept that advice. He says that he had received different advice from Mr Peters. In the light of that conflicting advice, he had to choose whether or not to contest the charges against him. He chose to plead guilty.
17.
There is a dispute between the applicant and Mr Smith as to whether Mr Smith advised the applicant fully (as Mr Smith says that he did) as to the consequences of a guilty plea. It is unnecessary for us to go into the details of that dispute. The applicant said in his letter to the judge that his overriding concern was for the welfare of his dog and that a positive report on his dog was obtained that day from the kennels, which gave rise to a chance that the dog would be returned to him if he pleaded guilty. Of course, the dog would have been returned to him if he had maintained his not guilty plea and been acquitted. No doubt the applicant would have maintained his not guilty plea if he had considered that he had a chance of being acquitted.
Instead, the applicant chose to plead guilty.
18.
In those circumstances, we are confident that the applicant's conviction was safe. The contrary is not arguable.
19.
We deal briefly with the eight grounds of appeal. Ground 1 is that the applicant was severely disadvantaged by not being allowed to be represented at trial by the counsel of his choice. That does not give rise to an arguable ground of appeal. The court was not obliged to adjourn the trial to a date when the applicant's original counsel was available. The applicant had ample time in which to instruct fresh counsel. In any event, the applicant had had the benefit of Mr Peters' advice, but still chose to plead guilty.
20.
Ground 2 is that the applicant was unable to offer a proper defence as the prosecution failed to state exactly how he was alleged to have committed the offences. This is unsustainable. The prosecution's case was clear.
21.
Ground 3 is that the applicant did not have adequate time to prepare a defence with his "last minute barrister". This is unarguable. The applicant's defence was set out in his defence statement, which was uploaded over five months before the trial. He was not starting from scratch on the second day of trial. The applicant could have instructed Mr Smith, or any other barrister who was available, in advance of the trial. He chose not to do so. He cannot rely on that choice as a ground of appeal.
22.
Ground 4 is that the case was not brought to trial within a reasonable time. That does not give rise to a ground of appeal. If the applicant had considered that the delay had been such that there could no longer be a fair trial, then the appropriate course would have been for him to apply for the prosecution to be stayed as an abuse of process. We do not suggest that any such application would have had any prospect of success. However, the applicant did not make such an application. Instead, he pleaded guilty.
23.
Ground 5 is that the applicant was not of sound mind when, with extreme reluctance, he conceded to change his plea to guilty, which he did for the purpose of securing the return of his dog. We have already dealt with the applicant's decision to plead guilty. The suggestion that he was not of sound mind is not supported by any medical evidence.
24.
Ground 6 is that the applicant's barrister was professionally negligent by failing to advise the applicant of the full consequences/ramifications of pleading guilty and incorrectly advised the applicant that he would be given credit for his guilty pleas. We have already indicated that we do not regard the dispute between the applicant and Mr Smith as to the adequacy of Mr Smith's advice as relevant to the determination of this application. The applicant would not have considered pleading guilty, whatever its consequences, unless he considered that he had no prospect of being acquitted.
25.
Ground 7 is that the trial judge displayed prejudice from the outset of the trial. We see no basis for this allegation. We note that it formed no part of the reasons offered by the applicant for his decision to plead guilty. Moreover, the appropriate remedy in a case of apparent bias on the part of the judge would have been to invite the judge to recuse himself. That was not done.
26.
Ground 8 is that there were very few agreed or established facts in the case by virtue of the witness statements being largely contradictory. Any contradictions between the witnesses' evidence could have been explored at trial if the applicant had chosen to maintain his not guilty pleas. He chose not to do that.
27.
In the submissions which he has made since filing his grounds of appeal, the applicant has, amongst other things, placed particular emphasis on his contention that a dog who is on a lead is, by definition, not out of control, with the result that he could not have been guilty on either count. There is no basis in
the Act
for such a contention. Indeed, the decision of this court in
R v
Gedminintaite
[2008] EWCA Crim 814
flatly contradicts it. In other words, it would not have been a defence for the applicant to say that his dog was on a lead.
28.
In his submissions today, the applicant has referred to various items of evidence which he says support his case as to the causation of the injuries sustained by Mr Mitchell and Miss Lackey and as to the conduct of his dog. These are all matters which could have been ventilated at a trial if the applicant had chosen to maintain his plea of not guilty. He chose, instead, to plead guilty.
29.
Accordingly, and for the reasons which we have given, this renewed application is dismissed.
__________________________________
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________________________________ | {"ConvCourtName": ["Crown Court at Oxford"], "ConvictPleaDate": ["21 March 2019"], "ConvictOffence": ["owner of a dog which caused injury to a person while dangerously out of control", "section 3(1) and (4) of the Dangerous Dogs Act 1991"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Oxford"], "Sentence": ["8 months' imprisonment on each"], "SentServe": ["concurrent"], "WhatAncillary": ["victim surcharge", "costs of the prosecution", "disqualified from keeping a dog", "contingent destruction order"], "OffSex": ["He"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["living in Oxford"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["spoke to a number of cyclists"], "VictimType": ["Paul Mitchell"], "VicNum": ["Paul Mitchell", "Victoria Lackey"], "VicSex": ["her", "Mr"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["body-worn video camera", "injury"], "DefEvidTypeTrial": ["applicant denied that his dog"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["applicant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["extension of time", "against conviction"], "AppealGround": ["Ground 8 is that there were very few agreed or established facts", "Ground 7 is that the trial judge displayed prejudice", "Ground 2 is that the applicant was unable to offer a proper defence", "Ground 1 is that the applicant was severely disadvantaged", "Ground 5 is that the applicant was not of sound mind", "Ground 3 is that the applicant did not have adequate time", "Ground 6 is that the applicant's barrister was professionally negligent", "Ground 4 is that the case was not brought to trial within a reasonable time"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["application is dismissed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["These are all matters which could have been ventilated at a trial if the applicant had chosen to maintain his plea"]} | {"ConvCourtName": ["Crown Court At Oxford"], "ConvictPleaDate": ["2019-03-21"], "ConvictOffence": ["section 3(1) and (4) of the Dangerous Dogs Act 1991", "owner of a dog which caused injury to a person while dangerously out of control"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Oxford"], "Sentence": ["8 months' imprisonment on each"], "SentServe": ["Concurrent"], "WhatAncillary": ["disqualified from keeping a dog", "victim surcharge", "contingent destruction order", "costs of the prosecution"], "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": ["2 of 2", "1 of 2"], "VicSex": ["Mixed"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Digital", "Medical"], "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", "Other (e.g., application for extension of time to appeal)"], "AppealGround": ["Ground 8 is that there were very few agreed or established facts", "Ground 1 is that the applicant was severely disadvantaged", "Ground 2 is that the applicant was unable to offer a proper defence", "Ground 3 is that the applicant did not have adequate time", "Ground 4 is that the case was not brought to trial within a reasonable time", "Ground 5 is that the applicant was not of sound mind", "Ground 6 is that the applicant's barrister was professionally negligent", "Ground 7 is that the trial judge displayed prejudice"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["These are all matters which could have been ventilated at a trial if the applicant had chosen to maintain his plea"]} | 51 |
Neutral Citation Number:
[2009] EWCA Crim 2555
Case No:
2009/03572/A7
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
HIS HONOUR JUDGE BOULTON
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
03/12/2009
Before :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MRS JUSTICE RAFFERTY
and
MR JUSTICE HENRIQUES
- - - - - - - - - - - - - - - - - - - - -
Between :
R
- v -
Peter Ralphs
Attorney General Reference under section 36 of the
Criminal Justice Act 1988
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr D. Atkinson for the Attorney General
Mr J Gibson for the Offender
Hearing dates : 5
th
November 2009
- - - - - - - - - - - - - - - - - - - - -
Judgment
The Lord Chief Justice of England and Wales:
1.
This is a Reference under
section 36
of the
Criminal Justice Act 1988
by Her Majesty’s Attorney General of a sentence imposed on Peter Ralphs (the offender) by His Honour Judge Boulton sitting in the Crown Court at Liverpool on 16 June 2009.
2.
The offender is 38 years old. He was born in June 1971. Although he has previous convictions, in the present context they are either relatively insignificant or stale. They do not aggravate the seriousness of the offences now under consideration.
3.
Following a not guilty plea at the plea and case management hearing on 17 February 2009, the case was re-listed at the request of the offender, and on 3 March 2009 the offender pleaded guilty as follows:
(i)
Count 1 – Possession of a prohibited weapon, contrary to
section 5(1)
(a) of the
Firearms Act 1968
, namely a 9mm Browning calibre Ingram machine gun;
(ii)
Count 2 – Possession of a prohibited weapon, contrary to the same subsection, namely a 7.65mm calibre Skorpion machine pistol;
(iii)
Count 3 – Possession of expanding ammunition, contrary to
section 5
(1A)(f) of
the 1968 Act
, namely a twenty-nine 9mm Browning calibre hollow point cartridges, designed or adapted to expand on impact.
(iv)
Count 4 – Possession of expanding ammunition, contrary to the same subsection, namely forty-four 9mm Luger jacketed hollow point cartridges;
(v)
Count 5 – Possessing an accessory to a firearm, contrary to
section 1(1)
(a) of
the 1968 Act
, namely a sound moderator;
(vi)
Count 6 – Possessing ammunition without a Firearm Certificate, contrary to
section 1(1)
(b) of
the 1968 Act
, namely forty 9mm Browning full metal jacket cartridges;
(vii)
Count 7 – Possession ammunition without a Firearm Certificate, contrary to the same subsection, namely fifty-seven 9mm Luger full metal jacket cartridges;
(viii)
Count 8 – Possession ammunition without a Firearm Certificate, contrary to the same subsection, namely fifteen 32” Automatic calibre full metal jacket cartridges;
(ix)
Count 9 – Possession ammunition without a Firearm Certificate, contrary to the same subsection, namely twenty-five 9mm Luger calibre full metal jacket cartridges with NATO compatibility.
4.
On 16 June 2009 the offender was sentenced to 6 years’ imprisonment on counts 1 and 2, the sentences to run concurrently, and to 3 years’ imprisonment on each of counts 3-9, all the sentences to run concurrently with each other and with the sentences on counts 1 and 2. Accordingly the total sentence was 6 years’ imprisonment. Appropriate credit was given for time spent on remand prior to sentence.
5.
The facts are accurately set out in the Reference itself.
6.
The police executed a search warrant at the offender’s address 11 Parbrook Road, at 8am on 27
th
November 2008. The weaponry which formed the basis for the counts in the indictment were all found in a tool box in the cupboard under the stairs.
7.
Count 1 related to a 9mm Browning calibre Ingram machine pistol. This weapon had no magazine fitted, but the selector was set for the fully automatic mode which would have permitted the successive discharge of two or more missiles without repeated pressure on the trigger. It functioned, when tested, in both automatic and semi-automatic modes. The barrel of the gun had been externally threaded to allow a muzzle attachment to be fitted. Although not loaded with ammunition, much of the ammunition that was recovered with it in the cupboard could have been fired from it.
8.
Count 5 related to a sound moderator. It was marked Ingram M11 9mm Auto, and was suitable for use with the Ingram machine pistol (count 1). It was classified as an accessory to a lethal barrelled weapon, and thus subject to the certificate procedure in
section 1
of the
Firearms Act 1968
. The Ingram machine pistol was test fired with the silencer fitted, and operated properly.
9.
Count 2 related to a 7.65mm (.32 Auto) calibre Skorpion machine pistol. The folding stock had been broken off. Like the Ingram machine pistol, this gun was designed successively to discharge two or more missiles without repeated pressure on the trigger. It functioned, when tested, in both automatic and semi-automatic modes. The weapon’s selector switch was set for 20 when found, and the safety catch was off. Moreover, this gun was loaded with a full magazine of 15 cartridges. These cartridges were 32” Automatic calibre full metal jacket cartridges, and formed the subject matter of count 8 of the indictment.
10.
Count 3 related to twenty-nine 9mm Browning calibre hollow point cartridges. These cartridges were designed to expand on impact. 12 of these were found with a magazine that could have been fitted to the Ingram machine pistol, 2 more were found in a box with other ammunition and 15 more were found with other ammunition in a sock.
11.
Count 4 related to forty-four 9mm Luger jacketed hollow point cartridges. Like the Browning cartridges, these were designed to expand on impact. 8 cartridges were found in a bag with other ammunition, and the remaining cartridges were found in a further bag containing ammunition.
12.
Count 5 related to forty 9mm Browning full metal jacket cartridges. 5 of these were found with a magazine that could have been fitted to the Ingram machine pistol, 28 cartridges were found in a box of ammunition and a further 7 cartridges were found in a sock which also contained other ammunition.
13.
Count 7 related to fifty-seven 9mm Luger full metal jacket cartridges, 26 of which were found in a bag of ammunition and 31 of which were found in a further such bag.
14.
Count 9 related to twenty-five 9mm Luger calibre full metal jacket cartridges with NATO compatibility, 1 of which was found in one carrier bag of ammunition, 23 of which were found in a second such bag and a further cartridge was found separately in the same cupboard.
15.
The offender was arrested and interviewed on 27
th
November 2008. During his interview he offered the explanation that he had been waved down in the street by a man he refused to name who asked him to “hold something for me”. Without asking any further questions he agreed. Later that evening there was a knock at his front door. He opened it. A different man was standing there. Again he refused to name him. The man handed him a drill box and told him that he would be back in the morning for it. The offender did not look into the box. He believed it was a drill. He put it under the stairs. He thought nothing more about it. Initially he said he never touched any of the weapons or the ammunition, but he later stated that these were weapons involving a lad who was shot a couple of months earlier and that the guns had been on the street for a long time. However he would not tell the police any more for fear for the safety of his children. He asserted that he had not received any money for holding the tools, just that, as a joiner, he loved tools. He also said that he remembered handling one of the guns when he was shown them a few months earlier.
16.
During the course of the hearing before the Crown Court reference was made to a written basis of plea. Counsel on his behalf said:
“The prosecution would not dispute that the defendant was a minder of material, that is, as I understand, not in dispute, and the reason for his minding the material was explained in his interview. So maybe that does not necessarily impinge on the sentence your Honour would otherwise impose. As I understand it, the defendant has never claimed that he was under immediate threat and indeed in interview he acknowledged that at the time he was not threatened when he received the firearms and ammunition, he was threatened as such, but as he explained in his interview, there was a background of intimidation.”
17.
Counsel went on to address the question of the offender’s knowledge of the contents of the drill box. Counsel observed that the offender had “said in interview that he did not know what was in the drill box but he suspected – well, he concedes that he knew that it was or had a clear suspicion that it was illegal. So whilst not knowing the nature of what was in the box he knew that the box contained something illegal”. The question of a Newton hearing was discussed.
18.
At the end of the discussion the judge observed “I will make the same finding that he (was) only a minder, but it seems almost inevitable I would have to find that he knew perfectly well what he was minding and had done for a number of days”. There was a short adjournment. Counsel spoke to his client. He recorded that the offender “would not seek to dissuade your Honour from sentencing him on the basis that your Honour indicated. He maintained that he was a minder, and that does not seem to be in dispute…the history indicates that he was intimidated by the circumstances in which he found himself and the people who he believed were behind the delivery of the items…”
19.
A statement from Detective Chief Superintendent Stephen Moore, the Merseyside Police Strategic Lead for the Reduction of Gun Crime, was put before the judge. This showed that between 2002-8 the number of firearm discharges had tripled, and a third of these discharges had caused injury. He concluded:
“The nature of gun crime is chaotic and largely unpredictable. Innocent members of the public face great danger due to the reckless discharge of weapons, married to the variables of poor marksmanship, defective ammunition and mixed quality weapons. On occasion bullets hit homes and vehicles of innocent people. On several occasions in recent times innocent people have died or been injured as a result of the criminal use of firearms. The impact of these crimes is severe and leads to fear in our communities.”
20.
A pre-sentence report dated 26
th
June 2009, was prepared in relation to the offender by the National Probation Service. The author of the report under the heading of ‘Offence Analysis’ observed:
“Though it was evidence Mr Ralphs was keen to distance himself from any participation within the illegal gun trade, he did not attempt to minimise the significance of his involvement and accepts his guilt in relation to having ultimately been found in possession of the firearms and ammunition in question. This said, Mr Ralphs firmly denies any knowledge of being in possession of these items and thus he unknowingly committed the offence.”
These assertions were inconsistent with the basis on which it was agreed by the offender that he should be sentenced.
21.
Under the heading, ‘Assessment of the Risk of Serious Harm’, the author assessed the offender to be at medium risk of re-offending, with a medium risk of harm to the public.
“…Although there is no evidence of any further violent behaviour since (1994) his involvement in this current matter and ultimately his vulnerability to the will of those with a more criminal agenda, has placed Mr Ralphs in a position where he has allowed himself to become involved in the serious process of spreading illegal firearms throughout society.”
22.
Sentencing the offender the judge described these weapons as “hideous”, observing that one gun was loaded, and the other, although not having ammunition attached to it, was in the automatic setting. He also noted the large quantity of very dangerous ammunition. He plainly had consecutive sentences in mind, because he observed “had you been the armourer of whoever was eventually to receive, whether received back or received from you, these weapons, you would be looking at sentences in double figures”. The offender was “a minder of these weapons and …under a degree of pressure or coercion and, without making a finding, that, firstly, you genuinely were afraid to give information which would assist the police in tracing the owner or those people who placed them with you and also…that you had not had them for very long, however very long might have been.” Given the guilty plea tendered at what was described as the first available opportunity the judge decided that concurrent sentences would be appropriate.
23.
The essential features of this case are self-evident. The offender fell to be sentenced on the basis that he was the minder, but not the distributor or supplier of lethal weapons, which would eventually be returned to or on the orders of the unknown and still unknown individual who left them in the offender’s safe keeping. As it happens he was caught before they had been in his possession for very long and before he returned or otherwise disposed of them. Caught red-handed, the offender, a man of mature years, not a youngster, and not of previous good character, pleaded guilty, but not, as was suggested, at the earliest available opportunity. Indeed when he did offer a guilty plea, it was on a basis that the judge rejected. Nevertheless it was appropriate for some allowance to be made for the guilty plea. All that said this was a small armoury consisting of two lethal weapons together with ammunition capable of use in each weapon. One was loaded, the other was fully set for automatic firing. The armoury included a great deal of additional ammunition, and a silencer.
24.
In these circumstances it was submitted on behalf of the Attorney General that the sentence was unduly lenient: indeed it was submitted that the sentence should have been in double figures, which, if correct, required that, consecutive sentences should have been passed. For the offender, the submission was that the sentence, even if lenient, was sufficient to reflect the offender’s overall criminality, not least in the context of the intimidatory pressures to which he was subject. Concurrent sentences were appropriate to reflect the criminality involved in the possession of weapons by the offender in a single box.
25.
The effect of complicated legislation is that on conviction on indictment offences contrary to
section 5(1)
and 5(1A) of the
Firearms Act 1968
, as amended, are subject to a statutory maximum sentence of 10 years’ imprisonment. At the same time, unless the circumstances are “exceptional”, offences contrary to
section 5(1)
(a)(ab)(aba)(ac)(ad)(ae)(af) and (c) and
section 5
(1A)(a) committed by an offender aged 18 or over at the date of conviction are subject to an appropriate custodial period for a minimum term of 5 years’ imprisonment. Accordingly, ignoring exceptional circumstances (which do not arise for consideration in this case) the minimum appropriate custodial sentence was 5 years’ imprisonment. Yet subject to orders for consecutive sentences, the maximum sentence was 10 years’ imprisonment. Although the minimum sentence is not subject to any discount for a guilty plea (
R v Jordan and others
[2005] 2 CAR (S) 44) the maximum sentence should normally be discounted.
26.
In short, therefore, the effect of statute in the vast majority of cases of possession of a firearm and ammunition is that the range of sentence available to the judge is very limited. Subject to possible consecutive sentences (which we shall address shortly) the range is between 5 years and 10 years’ imprisonment, and in the event of a guilty plea to an appropriately reduced discount from the maximum of 10 years’ imprisonment. This leaves remarkably little room for case-specific flexibility. The question for decision is whether the restriction on the range of sentences can properly be circumvented in situations like this, where the offender was found in possession of more than one gun, or, and no less important, a combination of guns and appropriate ammunition for use with them which came in to his possession on a single occasion and which were kept hidden and were found in the same hiding place, by an order for consecutive sentences.
27.
Two long-standing general principles are engaged. The first principle is totality. The aggregate of the sentences must be appropriate to the offender’s criminality in the context of the available mitigation. Second, consecutive terms should not normally be imposed for offences which arise out of the same incident or transaction.
R v Noble
[2003] 1CAR(S) 312 provides a clear example: consecutive sentences for causing several deaths by dangerous driving were quashed. Notwithstanding the numerous deaths there was a single act of dangerous driving. However there is sometimes a difficulty in deciding whether criminality under consideration may or may not be regarded as a single incident. The fact that offences are committed simultaneously is not necessarily conclusive. Thus
R v Fletcher
[2002] 2 CAR (S) 127 exemplifies orders for consecutive sentences in the context of indecent assault and threats to kill which arose out of the same incident.
28.
Examples abound of occasions when consecutive sentences are justifiably imposed. Obvious examples include a robbery committed with the use of a firearm, or violent resistance of arrest, or offences committed on bail: in all these examples however distinct offences are committed in circumstances where the offences, although distinct, can properly be said to increase the relevant criminality. A further principle, identified by Dr David Thomas in his monumental work, Current Sentencing Practice, Vol 1 at A5-J is that a court “may impose consecutive sentences for offences committed on the same occasion when there are exceptional circumstances which justify a departure from the usual practice”. (See
R v Wheatley
[1983] 5CAR (S) 417 (a case of a driver driving without insurance but after consuming excess alcohol) applied in
R v Dillon
[1983] 5CAR (S) 439,
R v Lawrence
[1989] 11 CAR (S) 580 and
R v Hardy
[2006] 2CAR (S) 4). Our attention was also drawn to
R v Jameson and Jameson
[2009] 2 CAR (S) 26, a recent decision of this court, where it was stated that:
“…A sentencing judge should pass a total sentence which properly reflects the overall criminality of the defendant and the course and nature of the criminal conduct disclosed by the offences for which he stands to be sentenced, while always having regard to the principle of totality. However, the imposition of concurrent sentences for like offences may not be appropriate where, as here, the statutory maximum sentence for an offence prevents the proper reflection of these matters”.
However the problem with the deployment of this decision as authority for the proposition advanced on behalf of the Attorney General is that the offences of administering a poison or noxious substance involved a number of different occasions when acid was sprayed in faces of members of the staff of premises from which the appellants were stealing. These were “like” offences which did not constitute a single incident. Where offences are indeed distinct or separate events, the court is entitled to order consecutive sentences to reflect the defendant’s criminality.
29.
When we invited Mr Atkinson to draw our attention to any sentencing decision which provided direct support for his submission that in this particular case consecutive sentences were appropriate, he was unable to do so. The problem is simple. In the context of a narrow range of available sentencing powers, and in particular the statutory maximum sentence, we are in reality being invited to circumvent the statutory maximum sentence on the basis that we believe it to be too low and to achieve our objective by disapplying well understood sentencing principles of which Parliament must be deemed to have been aware when the statutory maximum and minimum sentence was fixed. Tempting as it is to do so, that is a step too far.
30.
In
R v Wilkinson and others
[2009] EWCA Crim 1925
attention was drawn to some of the problems created by the different statutory structures which govern the sentencing arrangements which apply to firearms offences and Class A drug offences. This case provides another. If this offender had been in possession of Class A drugs with intent to supply them (as on his plea he was in possession of these firearms with that intent) he would have been liable to a maximum sentence of life imprisonment. The problem must be addressed by legislation.
31.
Notwithstanding the constraints on the sentencing powers, our conclusion is that the present sentence was unduly lenient. The particular aggravating features of the case are that offender was in possession of more than one lethal weapon with ammunition fit for use in both lethal weapons, together with a silencer. The problem of pressures and intimidation are real, but those who provide a safe hiding place for weapons like these make a significant and distinctive contribution to the use of firearms on the streets and elsewhere. The offender was caught red-handed, and even if, in accordance with the definitive guideline relating to the guilty plea, that did not deprive him of some credit, nevertheless the plea was tendered in circumstances which , even if regarded as the first available opportunity, asserted a lower level of criminality than the judge was prepared to accept. These considerations lead us to conclude that the sentence should be increased from one of 6 years’ imprisonment to 8 years’ imprisonment. | {"ConvCourtName": ["Crown Court at Liverpool"], "ConvictPleaDate": ["3 March 2009"], "ConvictOffence": ["Possession of a prohibited weapon", "Possessing an accessory to a firearm", "Possession of expanding ammunition", "Possessing ammunition without a Firearm Certificate"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["the offender pleaded"], "PleaPoint": ["the case was re-listed at the request of the offender"], "RemandDecision": ["time spent on remand"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Liverpool"], "Sentence": ["6 years’ imprisonment on counts 1 and 2, the sentences to run concurrently, and to 3 years’ imprisonment on each of counts 3-9, all the sentences to run concurrently with each other and with the sentences on counts 1 and 2. Accordingly the total sentence was 6 years’ imprisonment."], "SentServe": ["concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["38"], "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 executed a search warrant"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["medium risk of re-offending, with a medium risk of harm to the public."], "AggFactSent": ["intimidation", "significant and distinctive contribution", "possession of more than one lethal weapon"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Attorney General"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["of a sentence imposed"], "AppealGround": ["In these circumstances it was submitted on behalf of the Attorney General that the sentence was unduly lenient"], "SentGuideWhich": ["section 36 of the Criminal Justice Act 1988", "section 5(1) and 5(1A) of the Firearms Act 1968", "totality"], "AppealOutcome": ["the sentence should be increased from one of 6 years’ imprisonment to 8 years’ imprisonment."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["When we invited Mr Atkinson to draw our attention to any sentencing decision which provided direct support for his submission that in this particular case consecutive sentences were appropriate, he was unable to do so."], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Crown Court At Liverpool"], "ConvictPleaDate": ["2009-03-03"], "ConvictOffence": ["Possessing ammunition without a Firearm Certificate", "Possessing an accessory to a firearm", "Possession of expanding ammunition", "Possession of a prohibited weapon"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["data not available"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Liverpool"], "Sentence": ["6 years’ imprisonment on counts 1 and 2, the sentences to run concurrently, and to 3 years’ imprisonment on each of counts 3-9, all the sentences to run concurrently with each other and with the sentences on counts 1 and 2. Accordingly the total sentence was 6 years’ imprisonment."], "SentServe": ["Concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["38"], "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": ["Medium risk of harm"], "AggFactSent": ["significant and distinctive contribution", "intimidation", "possession of more than one lethal weapon"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Attorney General"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["of a sentence imposed"], "AppealGround": ["In these circumstances it was submitted on behalf of the Attorney General that the sentence was unduly lenient"], "SentGuideWhich": ["totality", "section 5(1) and 5(1A) of the Firearms Act 1968", "section 36 of the Criminal Justice Act 1988"], "AppealOutcome": ["Allowed&Sentence Replaced by More Excessive Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["When we invited Mr Atkinson to draw our attention to any sentencing decision which provided direct support for his submission that in this particular case consecutive sentences were appropriate, he was unable to do so."], "ReasonDismiss": ["data not available"]} | 240 |
No:
200502690/B1
Neutral Citation Number:
[2006] EWCA Crim 773
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Wednesday, 22nd March 2006
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE ANDREW SMITH
MR JUSTICE MACKAY
- - - - - - -
R E G I N A
-v-
GILLIAN PAULA BECKINGHAM
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR S HOCKMAN QC
appeared on behalf of the APPELLANT
MR A WEBSTERS QC
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
THE VICE PRESIDENT: On 21st April 2005, following a 10 week trial at Preston Crown Court, before Poole J, the appellant was convicted, by the jury's unanimous verdict on count 9, of failing to discharge a duty under
section 7
of the
Health and Safety at Work Act 1974
. The jury failed to agree in relation to counts 1 to 7, which alleged manslaughter. No sentencing has taken place because it is presently contemplated that, in any event, the Crown will seek a retrial of the appellant in relation to manslaughter.
2.
The co-accused was the Barrow Borough Council. They, on the direction of the judge, were acquitted on the seven counts of manslaughter which were laid against them as well as against the appellant. The council pleaded guilty to count 8, which lay against them, which was the same allegation as against this appellant, namely, a failure to discharge a duty under, in their case,
section 3
of the
Health and Safety at Work Act 1974
. The appellant appeals against conviction by leave of the Full Court, differently constituted, following refusal of leave by the Single Judge.
3.
In summary, the material events were these. In July/ August 2002 there was an outbreak of Legionnaires disease in the Barrow-in-Furness area. The source of the bacteria which caused it was found to be the cooling towers for the air conditioning and heating system of a building in Barrow-in-Furness which included a theatre, which was operated by the council and was known as Forum 28. The dangers posed by the Legionella bacterium and the conditions giving rise to it were, at the time, well recognised and covered by a Code of Practice issued by the Health and Safety Executive, initially in 1995, and then superseded by an approved Code of Practice L8, in relation to the compliance of building owners with their duties under the Health and Safety at Work Act.
4.
The appellant is a qualified architect and she was employed by the council as head of Design Services Group which, among other things, advised and acted for other departments in relation to the maintenance of council buildings. Those duties included negotiating and entering into maintenance contracts for the air conditioning and ancillary equipment in Forum 28. The appellant was nominally subject to supervision from the Director of Development but in practice ran her department without supervision.
5.
Until the end of 2000, the air conditioning maintenance contract at Forum 28 was undertaken by a company called Halls through its subsidiary, Streamline. There were concerns with regard to Hall's efficiency and so a quotation was sought from another firm, Interserve. In April 2001 Halls were given notice of termination of their contract. There were a number of meetings, in particular in July 2001, between the appellant and others, in relation to what Interserve should be asked to quote for. The contract negotiated with Mr Maddock, the commercial manager of Interserve, was to start on 1st September 2001. It was the case for the prosecution that that contract did not include, as it should have done, provisions for appropriate testing and sampling of the water, in order that the system could run safely.
6.
In January 2002, a Mr MacDonald, who was Interserve's engineer, according to his evidence reported that the cooling towers and plant room needed replacement and that the chemical barrels supplying the automatic dosing system were almost empty, so no water treatment was taking place. From the end of July 2002, the staff at Barrow General Hospital noticed an unusually high number of patients presenting with symptoms which on 1st August were diagnosed as Legionnaires disease. The cooling towers at Forum 28 were shut down on that day and the following day the particular strain of Legionella was identified: the cooling towers at Forum 28 were the only source of that bacterium in the area. It was in consequence that the seven counts of manslaughter were framed relating to seven victims who had, sadly, died having contracted this condition.
7.
The appellant was arrested on 6th September 2002. In her first interview she denied having responsibility for the content of the maintenance contract at Forum 28 and she denied responsibility for what had occurred. In a later interview, she denied it was the responsibility of her group to arrange and implement maintenance contracts at public buildings. She suggested that the technical manager, Mr Borthwick, employed at Forum 28 had failed in his duties and that she relied on Interserve to ensure that everything was done properly.
8.
In interview, on 10th December, she accepted it was her department's responsibility to arrange for the contract for Forum 28 and that she had assumed an important role, but she claimed that she had no real understanding of the aspects of water treatment which were relevant. She agreed that she had arranged for the provision of water treatment to be removed from the contract. She was critical of senior management for failing to train her properly, and she denied personal responsibility for the outbreak. The Crown's case against her was, in part, that she had, during the course of these interviews, shifted her ground and told lies.
9.
So far as count 9 is concerned, the allegation was that, between March 2001 and August 2002, the appellant, as an employee of the council, had failed to take reasonable care for the health and safety of herself and others who might be affected by her acts or omissions at work, thereby exposing such persons to the risk of contracting Legionnaires disease, from the discharge of Legionella bacteria from the cooling towers of Forum 28.
10.
The Crown, at the behest of the defence, served ten particulars to support the allegation made in the statement of the offence in count 9. It is unnecessary to rehearse those particulars. They are not in dispute. They include two alleged acts and eight alleged omissions.
11.
At the close of the prosecution case, a submission was made on behalf of the defence that there was no case to answer in relation to count 9. The judge rejected that submission. This gives rise to the first ground of appeal, both in its original form and in a proffered amended form, by way of additional grounds postulated a few days ago in Mr Hockman's supplementary skeleton. To that, in a moment, we shall return.
12.
The jury was directed, in due course, that they had to be sure that one or more of the particulars was made out and be sure that, by reason of it or them, the defendant failed in her duty to take the required reasonable care for the health and safety of those who might be affected. They were also directed that failures by others did not exempt the defendant from liability and it was for the jury to determine what constituted reasonable care. It was for them to decide, also, as a question of fact, what was and was not included in the terms of the agreement with Interserve. The alleged inadequacies of the summing-up give rise to other grounds of appeal to which we shall shortly come.
13.
It is unnecessary for the purposes of this appeal and would be undesirable, in view of the retrial of the appellant which is already contemplated, for us to rehearse the evidence which was heard by the jury and comprehensively reviewed by the judge in his summing-up.
14.
The way in which Mr Hockman QC, who did not appear at the trial, presented the case for the appellant to this Court was under three headings. The first, in relation to the contractual aspect of the matter, was in support of the first ground of appeal on which the Full Court gave leave. The contention is that the evidence was such that the judge should not have permitted the case to go to the jury and should have acceded to the submission of "no case" made at the close of the prosecution evidence. It is submitted that the prosecution case on culpability was irremediably undermined by the evidence of the prosecution witnesses, Mr Maddock and Mr Borthwick, to whom we have referred.
15.
By the more recently proffered grounds of appeal on this aspect of the matter, Mr Hockman seeks to contend that the summing-up was inadequate in relation to the contractual situation which the jury had to assess and such was the deficiency in the prosecution case, with regard to the contractual position, that the judge ought not to have allowed the case to go to the jury. Mr Hockman, frankly accepts that, in the course of the trial below, Mr Maddock was not questioned along the lines that the only contract was the written contract and therefore such oral conversations as had taken place with the defendant were a non-contractual irrelevance. Mr Hockman further accepts that the contractual points which he now seeks to take were not canvassed before the judge at the time a submission of no case was made.
16.
In our judgment, it is not appropriate, in the circumstances of this case, when the contractual position was not evidentially or in submission explored at the trial below, to permit the grounds of appeal to be amplified by reference to that matter at this stage. Focussing, in the light of that observation, on the question of whether or not the material before the jury gave rise to a case to answer, it is, in our judgment, plain that there was a case to answer, in the light of matters canvassed before the jury. It was for the jury to decide whether the water treatment, including the monitoring of the impact of the treatment on bacterial levels, was or was not within the contract between the council and Interserve, as negotiated and not merely facilitated by the appellant. It was for the jury to decide whether, in the light of their conclusions as to that aspect of the matter, there was a consequential breach of the duty of care owed by the appellant. Without seeking to be in any way exhaustive in relation to the prosecution evidence which, as it seems to us, called for an answer, we identify a number of its features. There was exhibit 28, referred to in the summing-up at page 179B, namely the appellant's own note, made after the outbreak had occurred: This indicates, on its face, that dosing/monitoring had been excluded from the Interserve contract. There is exhibit 16, referred to in the summing-up as at page 39, namely the minutes of a meeting on 20th July, at which the appellant was present, at which it appears that it was agreed that checking/dosing should be omitted, as, at that stage, it was contemplated it would be carried out in-house or locally. There was the admission made by the appellant in interview that the decision on 20th July, to withdraw water sampling and dosing from the contract: that is referred to in the summing-up at page 256C. There was also the evidence of Mr MacDonald, to which we have very briefly referred and the evidence from Mr Borthwick. There was also the aspect of the matter that, until after the first interview, the appellant was accepting that water treatment had not been included in the contract and that she was, she accepted at that stage, negotiating the contract.
17.
Those matters, which we merely highlight among others, were such as to constitute a case for the jury's consideration. As to the submission that the evidence of Mr Borthwick and Mr Maddock undermined the prosecution case, that, as it seems to us, was entirely a matter for the jury, in the light of what conclusions they reached as to what aspects of that evidence they could accept and as to what impact the evidence they accepted had upon the prosecution case. In that regard, there is a subsidiary complaint made in the grounds with regard to the direction given that the evidence of Mr Maddock required confirmation before it could be relied on. It is apparent from the terms of the direction that it was given by reference to the prosecution being able to rely on the evidence of Maddock. We do not accept Mr Hockman's submission that, that direction having been given, it was incumbent on the judge to give a further direction that the jury could, even absent confirmation, rely upon the evidence of Mr Maddock so far as the defence were concerned. We also reject the allegation that the summing-up was in general terms unbalanced and unfair. In our judgment, it was, in general terms, fair and balanced and it contained many characteristically trenchant observations by the judge, in relation to the shortcomings of others apart from the appellant. As it seems to us, therefore, there is no substance in the first part of Mr Hockman's submissions, either in their written or in their oral form as presented to us.
18.
The third heading of Mr Hockman relates to what is, for the most part, contained in ground 5 of the grounds of appeal. It is directed to a criticism of the way in which the judge directed the jury with regard to the duty of care on the appellant and as to possible breach of that duty. The relevant passage is set out in the summing-up at page 18C to H. It is unnecessary to rehearse that passage. Mr Hockman's submission is that, over and above what the learned judge said by way of direction to the jury at that stage, he ought also to have directed them that the appellant was only to be fixed with that level of knowledge of risk that a reasonably careful and conscientious manager in her position at that time, with access to the knowledge available to her at the time ought, in the view of the jury, to have had. He should have warned the jury not to apply an unrealistically high standard of perfection or to use hindsight which would not have been available to the appellant at the time. There is no doubt that some judges, in summing-up a case of this kind, might have given a direction which incorporated some aspects of that. The crucial question, however, is whether, the way in which the judge did direct the jury in the passage we have identified was such as might render the jury's verdict unsafe. In our view, that criticism cannot be sustained. He correctly directed the jury that they were to set the standard of what was reasonable care. He directed them that, in determining that question, they should consider all the circumstances; and he identified, specifically, a number of matters to which they should have regard. He also referred to the significance, potentially, of the acts and omissions of others including the council itself and Mr Maddock. In our judgment, there is no reason for regarding the direction which the judge gave in that passage as impairing the safety of the jury's verdict.
19.
There remains however the "options" matter, as Mr Hockman put the second part of his submission. The relevant parts of the summing-up, which give rise to the question of whether this Court's decision in
R v Brown
79 Cr App R 115 was adequately reflected, start at page 17. There, having rehearsed the ten particulars, on which the prosecution relied, the judge said:
"...all that does is to state, in precise form, the case the prosecution has been presenting and the defence has been meeting ... You do not have to find all elements of the particulars proved against Gillian Beckingham, but you must be sure that one or more of those particulars is made out, and be sure by reason of it or them she failed in her duty to take the required, reasonable care, that is to say care for the health and safety of those who might be affected by her acts or omissions..."
At 17G, the judge went on:
"Before you can convict the defendant of this count 9, members of the jury, you must be sure of these things. [He identified four matters, the third of which is pertinent]... by way of one or more of the particulars that have been cited in evidence, and of which I have just reminded you, that while acting within the scope of her duty she failed to take that reasonable care."
20.
The learned judge, during the course of his summing-up, handed to the jury certain written directions on this aspect of the matter, which are, so far as is presently relevant, in these terms:
"In the context of count 9, you should consider the ten particulars of breach of duty by acts or omission alleged by the prosecution in their list of particulars under count 9, together with the evidence of the defendant in response to those particulars. In respect of the particulars of breach, ask yourself in relation to each (a) was this within the scope of duty (b) was she in breach of her duty in respect of that alleged failing. If she was in breach in respect of any one of those alleged failings she is guilty of the offence, under count 9."
Mr Hockman submits that those directions ought to have included a further specific direction, in accordance with
Brown
, that the jury must all be agreed that at least one of the particulars was proved; they must also be agreed which one was proved; and that it was not enough if only some of them were sure on one allegation and others were sure on another, if there was no one allegation on which they were all agreed. Absent any such direction, Mr Hockman submits there were at least ten alternative routes to the verdict of guilty which the jury returned. There may have been no unanimity in relation to one of the ten particulars on which the Crown relied. It may well have been common ground before us that not all the ten particulars were of equal importance and significance. But that was the way in which the case was presented to this jury. The way in which Mr Webster QC, for the Crown, puts the matter is this: he accepts that there is nowhere to be found in the summing-up a single passage in accordance with
Brown
. But he took us to five separate passages in the summing-up, at page 17G, 20C, 129A, 275E and 277, where, in each case, the judge directed the jury that they must be sure, in relation to one of the particulars which the judge was dealing with in that passage. Mr Webster submits that any jury so directed, applying its common sense, must have concluded that they must be sure in relation to one of the particulars, at least, before they could convict. In the alternative, Mr Webster draws attention to the strength of the prosecution evidence in support of his submission, that, even if there was a non- direction by the judge, the verdict should be regarded as safe. We are unable to accept Mr Webster's submissions. As it seems to us, having regard to the way in which this case was presented by the prosecution, it was incumbent on the judge specifically to direct the jury that they must unanimously be sure that one
or more of the particulars relied on as supporting the offence was made out and that this gave rise to a breach of duty under
section 7
.
21.
In the absence of such a direction, we cannot be sure that the jury's verdict on count 9 would necessarily have been the same. We say this because it is not possible to say, in the light of the directions which the judge gave and did not give, by which route the jury reached their verdict or whether they were unanimous on any of the ten particulars on which the count depended.
22.
In those circumstances, this appeal must be allowed and the conviction on count 9 will be quashed.
23.
THE VICE PRESIDENT: Mr Webster, what do you say about a retrial in relation to count 9?
24.
MR WEBSTER: The Crown does intend to pursue the charges of manslaughter. The matter is due to be heard on 7th April, in this building, for directions. We would seek also to retry the defendant in relation to this count.
25.
THE VICE PRESIDENT: Mr Hockman, can you resist a retrial on count 9?
26.
MR HOCKMAN: No, my Lord.
27.
THE VICE PRESIDENT: Very well, we shall give directions that a new indictment be preferred which will include count 9. It will be preferred within 28 days and a plea will be taken to it within 2 months from today. We shall grant, so far as it is necessary to do so, a representation order for leading and junior counsel and solicitors for the retrial in relation to count 9. | {"ConvCourtName": ["Preston Crown Court"], "ConvictPleaDate": ["21st April 2005"], "ConvictOffence": ["failing to discharge a duty"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Preston Crown Court"], "Sentence": ["No sentencing has taken place because it is presently contemplated that, in any event, the Crown will seek a retrial of the appellant in relation to manslaughter."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["she"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["employed"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["data not available"], "VictimType": ["seven victims who had, sadly, died"], "VicNum": ["seven victims"], "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 witnesses"], "DefEvidTypeTrial": ["she denied having responsibility", "no case to answer"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["APPELLANT"], "CoDefAccNum": ["Copy link to this paragraphThe co-accused"], "AppealAgainst": ["appeals against conviction"], "AppealGround": ["the judge should not have permitted the case to go to the jury and should have acceded to the submission of \"no case\""], "SentGuideWhich": ["Health and Safety at Work Act", "section 7 of the Health and Safety at Work Act 1974", "section 3 of the Health and Safety at Work Act 1974"], "AppealOutcome": ["appeal must be allowed and the conviction on count 9 will be quashed"], "ReasonQuashConv": ["In the absence of such a direction, we cannot be sure that the jury's verdict on count 9 would necessarily have been the same"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Preston Crown Court"], "ConvictPleaDate": ["2005-04-21"], "ConvictOffence": ["failing to discharge a duty"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Preston Crown Court"], "Sentence": ["No sentencing has taken place because it is presently contemplated that, in any event, the Crown will seek a retrial of the appellant in relation to manslaughter."], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Female"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Don't know"], "VictimType": ["Individual person"], "VicNum": ["7"], "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": ["prosecution witnesses"], "DefEvidTypeTrial": ["Offender denies offence", "No Case to Answer"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["1"], "AppealAgainst": ["appeals against conviction"], "AppealGround": ["the judge should not have permitted the case to go to the jury and should have acceded to the submission of \"no case\""], "SentGuideWhich": ["Health and Safety at Work Act", "section 3 of the Health and Safety at Work Act 1974", "section 7 of the Health and Safety at Work Act 1974"], "AppealOutcome": ["appeal must be allowed and the conviction on count 9 will be quashed"], "ReasonQuashConv": ["In the absence of such a direction, we cannot be sure that the jury's verdict on count 9 would necessarily have been the same"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 524 |
Neutral Citation Number:
[2012] EWCA Crim 794
Case No: 201102832 B3, 201102964 B3, 201103302 B3, 201103580 B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
HHJ WASSALL at Exeter Crown Court
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
27/04/2012
Before :
LORD JUSTICE PITCHFORD
MRS JUSTICE COX DBE
and
MR JUSTICE BURNETT
- - - - - - - - - - - - - - - - - - - - -
Between :
PAUL FLISHER
TIMOTHY EASTGATE
CHRISTOPHER MICHAEL LEADER
STEPHEN PROCTER
1stAppellant
2
nd
Appellant
3
rd
Appellant
4
th
Appellant
- and -
REGINA
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Paul Hynes QC and Aisling Byrnes Jnr
(instructed by
Edward Fail Bradshaw - Solicitors
) for the
1st Appellant
N Pascoe QC & Jonathan Ray (
instructed by
Parlbys Solicitors)
for the
2
nd
Appellant
Richard Furlong (
instructed by
McKenzies Solicitors
for the
3
rd
Appellant
John Aspinall QC and Jacqui Vallejo (
instructed by
Julian Jefferson Solicitors)
for the
4
th
Appellant
No attendance by Prosecution
Hearing date: 20 March 2012
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Pitchford :
1.
Between 2 February 2011 and 26 April 2011 at Exeter Crown Court the applicants faced trial on an indictment charging them with conspiracy, between 1 April 2009 and 11 September 2010, to supply the Class A drug cocaine. On 26 April 2011 they were convicted by the jury, Flisher by a majority of 10–2, Eastgate by a majority of 11-1, and Procter and Leader unanimously. Flisher and Procter now renew their applications for leave to appeal against their convictions. We grant Procter the necessary 6 days extension of time within which to seek leave to appeal.
2.
All four applicants renew their applications for leave to appeal against sentence. Eastgate applies for an extension of time of 24 days within which to make the application and we grant that extension.
3.
Eastgate was sentenced upon count 1 and also upon three further counts to which he had pleaded guilty on re-arraignment on 7 February 2011, count 7 (possession of a prohibited firearm), count 8 (possession of a prohibited accessory, a silencer, for a firearm), and count 9 (possession of ammunition without a firearm certificate). He was sentenced to a term of 16 years imprisonment upon count 1, 7 years imprisonment upon counts 7 and 8, and 12 months imprisonment upon count 9. The trial judge, HHJ Wassall, ordered that the sentences for the firearms offences should be served concurrently with each other but consecutively to the sentence imposed upon count 1, making 23 years imprisonment in all. The judge ordered 261 days to count towards that sentence pursuant to section 240 Criminal Justice Act 2003.
4.
On 8 March 2010 at the PCMH, Flisher pleaded guilty to count 3 (possession of a prohibited firearm). Count 5 (possession of prohibited ammunition), and count 6 (possession of ammunition without a firearm certificate) were added later. Flisher was found not guilty of count 4 of the indictment in which he was charged with the unlawful possession of a ‘taser’ weapon. He was sentenced upon count 1 to a term of 14 years imprisonment, upon counts 3 and 5 to a term of 7 years imprisonment, and upon count 6, to a term of 12 months imprisonment. The firearms sentences were ordered to run concurrently with each other but consecutively to the sentence upon count 1, making 21 years in all. The judge ordered 531 days to count towards that sentence.
5.
Procter was sentenced to 9 years imprisonment upon Count 1 with 300 days ordered to count towards the sentence for the purposes of sections 240 and 240A Criminal Justice Act 2003.
6.
Leader was sentenced to 9 years imprisonment upon count 1 with 286 days ordered to count against that sentence.
7.
The prosecution case was that the conspiracy involved, over a period of several months, the supply of large quantities of cocaine to the Devon area. The source of supply in Essex was Eastgate and his right hand man was Flisher. When Eastgate was out of the country the conspiracy continued to function, by inference under the control of Flisher. Dean Birch, an Essex lieutenant, pleaded guilty to count 1 and was sentenced to 8 years imprisonment. Shaun Battle and the applicant Procter in the more junior role, were distributors at the Plymouth end of the conspiracy. Battle was convicted by the jury and sentenced to 12 years imprisonment. James Wright, a courier and transport organiser, was also convicted. He was sentenced to 8½ years imprisonment. The applicant Leader was convicted as a courier. He was stopped on 7 August 2009 while driving southbound on the M5 in the direction of Exeter, carrying 5 kilos of powder containing cocaine with a purity of 4%. Investigation of mobile telephones found in the car led police officers to further accused. Cell site evidence, vehicle detection devices and mobile telephone traffic supported the inference of further deliveries of drugs and/or the collection of money by Leader on four further dates, 7 May, 14 May and 4 August 2009.
8.
The evidence supported similar runs by Wright on six occasions between 3 June and 20 September. The evidence supported similar runs by a further accused, Stephen Gray, on 15 occasions between 11 August 2009 and 13 May 2010. His defence was that he was unaware that he was carrying drugs and he was acquitted by the jury.
9.
Flisher lived with his girlfriend, Lisa Varley, in a substantial property, ‘South Barn’ in Epping, owned by Eastgate. He was in frequent and relevant contact with both Eastgate and Battle. Found at Eastgate’s home on his arrest was a computerised spreadsheet which appeared to record the movement of drugs. At least some of the drugs were identified in the spreadsheet by the initials “SP”. Those initials were found on a label attached to the drugs seized from Leader in August 2009. The same initials were used by Flisher and Eastgate in some of their text messages. The prosecution also relied on lifestyle evidence in support of its case against Flisher. Further, on four occasions during the indictment period before his arrest with Lisa Varley on 14 December 2009, Flisher made visits to the Devon area where the supply was taking place. Flisher’s defence was that he was a friend of Eastgate. He was not involved in drug trafficking but, like Eastgate, was engaged in other ‘business’. He had family reasons to visit Devon. He chose not to give evidence in his own defence.
10.
The applicant Procter was an associate of Battle’s. He lived near Tavistock. The prosecution case was that Procter met the couriers to take delivery of drugs for Battle and to hand over money and make payments. He was, the prosecution said, the user of three mobile telephone numbers ‘495’, ‘672’ and ‘827’. All three were used to make and receive calls implicated, the prosecution said, in the trafficking of drugs. That these phones were being used by Procter was established by the evidence of Carly Edwards to whom the numbers had been supplied by Procter at the funeral of a mutual friend, Soloman Read (aka Peacock). Procter did not give evidence in his own defence, but his case constituted a denial that he was a person referred to as “SP” or that he was the user of 495 and 672. A suggestion was made on behalf of Procter that the user of the disputed phones could have been Soloman Peacock. Peacock died in July 2009 from the effects of heroin abuse.
11.
We consider, first, the renewed application made by Mr Hynes QC on behalf of Flisher.
12.
Lisa Varley was charged in the same indictment in count 2 with converting criminal property, contrary to section 327(1)(c) Proceeds of Crime Act 2002. She was also charged in counts 3 and 4 with possession, jointly with Flisher, of the prohibited weapons, respectively a sawn off shotgun and the taser weapon. It was the prosecution case that Varley was aware of Flisher’s involvement in drug trafficking. As to count 2, the prosecution relied upon the movement of money into and out of bank accounts of which Varley was the sole or joint account holder, and, in respect of the firearms charges, Varley’s knowledge of their presence in the home she shared with Flisher at South Barn, Epping.
13.
Following their arrest and while awaiting interview at Loughton police station, Varley was heard to shout at Flisher in an adjoining cell:
“You’re the drug dealer. I am only here because of you. Money doesn’t grow on trees. Where does it all come from? I will tell them about people turning up at the house with boxes of money.”
On 10 October 2010, following Varley’s release on bail, she sent a text message to Flisher which read:
“U are so going to go under along with all ur bent cronies.”
14.
Both Flisher and Varley were sent for trial upon the firearms charges from Mid-North Essex Magistrates Court to Chelmsford Crown Court. On 7 May 2010 the case was transferred to Exeter Crown Court. Having heard argument on an earlier occasion, on 12 January 2011 HHJ Wassall gave leave for the consolidation of the indictment. Mr Hynes QC had invited the judge on behalf of Flisher to dismiss the prosecution’s application on the ground that the firearms charges could not properly be joined in an indictment alleging conspiracy to supply drugs. Furthermore, he submitted, even if those charges were properly joined, the trial of Varley should be severed so as to avoid prejudice to Flisher. The judge rejected Mr Hynes’ arguments. By 8 February 2011 it had become apparent that Varley was relying in her defence to the firearms charges on duress by her co-accused, Flisher. Mr Hynes renewed his application for severance of the two cases. Again the judge dismissed the application.
15.
Flisher now seeks leave to appeal against his conviction on two grounds:
(1)
The firearms counts were not properly joined in the indictment; and
(2)
If the counts were properly joined, the cases of Varley and Flisher should, in order to avoid prejudice to Flisher, have been separately tried.
16.
As to joinder, Crim PR 14.2(3) provides that an indictment may contain more than one count if all the offences charged (a) are founded upon the same facts or (b) form or are part of a serious of offences of the same or a similar character.
17.
The prosecution relied upon the first limb of the test which reproduced Rule 9 of the Indictment Rules 1971, considered by this court in
Barrell & Wilson
[1979] 69 Cr app R 250
. Both accused had been charged in the indictment with count 1, affray, and count 2, assault occasioning actual bodily harm. The judge had permitted the prosecution to join in the indictment an allegation in count 3 that Wilson had, some two months later, attempted to pervert the course of justice by offering a prosecution witness a bribe to change his evidence. Giving the judgment of the court, Shaw LJ said at p 252-253:
“Mr Jubb, on behalf of Wilson, submitted that count 3, far from being founded on the same facts as count 1, derived from a new and different set of facts which was not only different in its nature but separated by a substantial interval of time from the set of facts which gave rise to counts 1 and 2. He contended that to justify a joinder within the terms of section 4 and rule 9 the subsidiary offence must (to use counsel’s terminology) be an integral part of the primary offences and will not be separated from them by any distance in time.
This contention rests on too narrow a construction of the language of the statute and the relevant rules. The phrase “founded on the same facts” does not mean that for charges to be properly joined in the same indictment, the facts in relation to the respective charges must be identical in substance or virtually contemporaneous. The test is whether the charges have a common factual origin. If the charge described by counsel as the subsidiary charge is one that could not have been alleged but for the facts which gave rise to what he called the primary charge, then it is true to say for the purposes of Rule 9 that those charges are founded, that is to say have their origin, in the same facts and can legitimately be joined in the same indictment.”
18.
It was not suggested in the present case that the firearms charges depended for their potency upon the allegation of conspiracy to supply drugs. The joinder of such charges was considered by the court in
Roberts
[2008] EWCA Crim 1304
,
[2009] 1 Cr App R 20
. In that case a search of the accused’s home led to the discovery of both drugs and firearms. Latham LJ cited with approval paragraph 21 of the judgment of Toulson J (as he then was) in
Cox
[2001] EWCA Crim 728
:
“21.
We accept and follow the construction placed on the words by this court in
Barrel & Wilson
. Of course the words “have a common factual origin” are broad. The degree of overlap could range from something very tenuous to, at the other extreme, a situation where the facts are identical. A slight or tenuous connection with not be sufficient, but nor on the other hand need the facts be identical.”
In
Cox
the court approved joinder of a count alleging driving whilst disqualified and a further count of witness intimidation. The connection was that the accused had threatened the same officer who had arrested him on suspicion of driving whilst disqualified. The court in
Roberts
ruled that the drugs and firearms counts had been properly joined. They arose out of searches which took place on the same occasion. The fact that the defendant maintained that the drugs and firearm had been left by different people on separate occasions was immaterial to the question whether the indictment was properly framed.
19.
In the present case officers attended the home jointly occupied by Flisher and Varley. They were investigating Flisher’s involvement in a conspiracy to supply Class A drugs. Subsequently they discovered evidence which justified also a charge against Varley of laundering the proceeds of that conspiracy. On the occasion of their arrest, the police discovered the prohibited weapons and ammunition. It was the prosecution case that the firearms and ammunition were part and parcel of the drug trafficker’s “tools of the trade” and that Varley was well aware of both. In our view, in no sense can it be suggested that the connection between the firearms and the conspiracy was tenuous in the wider sense of the term “common factual origin” to which Toulson J was referring in
Cox.
The firearms and drugs charges were founded on the same facts. We agree with the judge that there was, upon the prosecution case, a factual origin which was common to the allegations of conspiracy, money laundering and possession of firearms. We reject the applicant Flisher’s first ground of appeal.
20.
The foundation for Mr Flisher’s second ground is the prejudice allegedly suffered by him in consequence of the defence being conducted by Varley. The prosecution relied upon Varley’s shouted remarks to Flisher in the police station and her text message to him as evidence of her knowledge of the source of the money which passed through her bank accounts. This evidence was not admissible against Flisher and the judge explained that position to the jury. However, Flisher’s defence was further shielded by the nature of Varley’s defence to count 2, namely that she had no knowledge or suspicion that Flisher might be involved in drug trafficking. Her remarks in the police station and by text were made, she said, not in consequence of any prior knowledge of Flisher’s activity but in consequence of the allegations then being made by the police. This was an assertion which appears to have been accepted by the jury because they found Varley not guilty upon count 2.
21.
Varley was permitted by the judge to adduce through her own evidence, in support of her defence of duress to the firearms charges, evidence of Flisher’s violent and unfaithful conduct towards her. It is true to say that her account of that conduct, while relevant, had doubtful probative value upon the issue of duress. We accept Mr Hynes’ submission that the evidence was indeed capable of having a prejudicial effect upon Flisher. However, the degree of possible prejudice to Flisher would depend upon the charges in respect of which it was capable of having that impact. Flisher had already pleaded guilty to the firearms charges, save for possession of the taser weapon, knowledge of which was denied by both accused. Evidence of Flisher’s possession of the sawn off shotgun and ammunition was admissible upon the conspiracy count. The jury returned verdicts of not guilty in respect of count 4, possession of the taser, not only in the case of Varley but also in the case of Flisher. It would seem that Flisher was not, as a result of anything Varley said, in jeopardy of prejudice in the jury’s consideration of the firearms charges. It is also plain that the evidence of domestic abuse was simply immaterial to the jury’s consideration of Flisher’s position in count 1. Varley did not implicate him. There was no connection between the allegation of domestic abuse and Varley’s defence to count 2; nor was there any connection with Flisher’s defence to count 1.
22.
The principles as to severance are well known (see
Lake
[1977] 64 Cr App R 172 at page 175). There was not in the present case a joint charge of conspiracy faced by Flisher and Varley; Varley was separately charged. However, both accused were charged with aspects of the same criminal behaviour, Flisher with the conspiracy and Varley with laundering the proceeds. It was desirable that these two cases should be tried together provided that the risk of unfair prejudice to Flisher could be avoided. In his written submissions Mr Hynes’ conceded that the judge provided the jury with a “robust” direction to the effect that Varley’s evidence of domestic abuse could not be used in any way in the case of Flisher. In the course of his oral submissions, however, Mr Hynes’ sought to persuade the court that the impact of the directions given was diminished by the piecemeal way in which the judge dealt with his legal directions. The judge dealt with the evidence in compartments; he gave some of his legal directions at the outset of his summing up and some as he approached the evidence to which they were relevant. The judge was reminded from time to time of the appropriate directions but we do not accept Mr Hynes’ submission that the jury could have been confused on these issues.
23.
At page 20F of the transcript of the judge’s summing up, he said this:
“You have heard about the domestic violence that Lisa Varley alleges she suffered at the hands of Paul Flisher, and you have heard about it because it goes to the heart of her defence, so it is relevant to that issue; but this evidence is simply not capable of making it more or less likely that Paul Flisher is guilty on either of the counts on the indictment that he faces and therefore it is quite irrelevant in the case against him. Setting aside the legal position for a minute, you know from your own experience of life, and the court certainly has experience, that a great many outwardly respectable people become involved in violence in the home when they would not … dream of becoming involved in an offence in any other circumstances, let alone dealing with Class A drugs; so for that reason alone you will see that it would be extremely unfair of you to take it into account when you are considering the case against Mr Flisher … so for those reasons you must take great care to take this evidence into account only when you consider the defence raised by Lisa Varley …”
24.
It will be seen that the judge not only directed the jury as to the legal position but also explained why it would be unfair to allow the evidence to have any impact upon their consideration of Flisher’s case. At page 237 of his summing up the judge returned to some aspects of the evidence given which were inadmissible in Flisher’s case. He repeated his reminder of Lisa Varley’s explanation of her accusations against Flisher in the police station and her later text message, and continued at page 238F:
“… you cannot hold that against Mr Flisher … it is not relevant in regards … his case, … but in this case she has given you her explanation. It is evidence only against her; you cannot hold it against Mr Flisher for the reasons that I have said; it is not evidence in the case against him. So you have to distance, when you are considering his case, those remarks, and you will do it in much the same way that I have directed you to so far as anything Lisa Varley said as to the domestic violence. Just set them aside and consider them only when you come on to consider her involvement in the case as it is alleged to be in count 2 onwards, so set it aside and ignore it when you are considering count 1.”
25.
Mr Hynes submitted in writing that the jury’s acquittal of Varley upon count 2 may give rise to the spectre that, notwithstanding the judge’s direction, the jury were influenced against Flisher by the evidence of domestic abuse. We do not agree. As we have demonstrated there was no connection, even remote, between the evidence of domestic abuse and Flisher’s case upon count 1, and he too was acquitted upon count 4. The jury would have had no difficulty, in our view, keeping the evidence in the compartment in which the judge had directed them it was strictly relevant, the possession of a firearm, to which Flisher had already pleaded guilty.
26.
In conclusion it is our view that the applicant has failed to demonstrate that the judge applied incorrect principles, or that he made decisions as to joinder and severance which were plainly wrong. Finally, we do not consider that Varley’s evidence led to a verdict upon count 1 which was arguably unsafe. We refuse the applicant Flisher’s renewed application for leave to appeal against his conviction.
27.
We turn, secondly, to the grounds advanced on behalf of the applicant Procter. It emerged that Procter not only denied that he had been the user of phone numbers “495” and “672” but also that he intended to maintain that the users of those telephones might have been Soloman Read/Peacock and/or his associates. The prosecution was invited to review its disclosure and to reveal any material relating to Peacock. In consequence, Mr Galloway for the prosecution made an application in private, but on notice, to the judge for a review of PII material. The court has been provided with a transcript of the proceedings which took place in private on Thursday 24 February 2011. The result was that the prosecution indicated to Mr Aspinall QC and other defence counsel its willingness to make an admission in the following terms:
“The prosecution are in possession of intelligence relating to Soloman Read to indicate that from the period 2007 until his death in August 2009 he was involved in the supply (in accounts measured in kilogrammes) of cocaine in the South West of England. There is no intelligence linking him to this conspiracy”.
28.
Mr Aspinall was not content with the final paragraph of the admission. Other counsel objected to the admission altogether. Mr Aspinall recalls that the burden of their objection was that section 10 Criminal Justice Act 1967 permitted only the admission of facts “of which oral evidence may be given”. Counsel argued that since the admission was based on anonymous hearsay evidence of “intelligence”, the admission should not be made. Mr Galloway’s recollection, referred to in his written note to the single judge, was that other defendants objected to the admission because it was contrary to their cases. Following submissions in open court to the judge, a further PII hearing took place in private. Again we have been provided with a transcript. In consequence, in a further ruling given in open court on the same day the judge said this:
“The court has considered the material that the prosecution seek to withhold and the facts of the case and the defences as disclosed. The court has concluded that the following admissible evidence is available to achieve the aims of the defence: firstly, the previous conviction of Read in 2004 for possession [with intent] to supply a Class A drug, cocaine, for which he pleaded guilty and was sentenced to 3 years. That conviction can be proved by the memorandum of conviction and a bad character application can easily be made so far as that is concerned. There has already been introduced into the evidence by Mr Aspinall, on behalf of Mr Procter, a conversation between Read and a police officer when Read tells the officer that he has just done 14 months for supplying cocaine. Finally, the inquest findings, in the middle of the conspiracy period, indicate that Read died from a combination of drink and drugs. I have concluded that this evidence can be adduced by the defence, and taken together, it will ensure that the trial process, viewed as a whole, is fair to all the defendants, but particularly fair to the defendants Leader and Procter. I note that, using the evidence regarding Read in this way, the final line of the proposed admission “there is no intelligence linking him to the conspiracy” would not go before the jury.”
It appears to have been the understanding of prosecuting counsel and the judge that since the other parties in the trial were not prepared to agree the admission, it was not open to the prosecution to make it.
29.
Further submissions were made to the judge in open court. It was now submitted that the prosecution should not be permitted to withdraw its earlier “admission”. The judge ruled that no admission had been made. It had been proposed but not accepted by any party. The judge ruled that the admission was based on anonymous hearsay and could only be admitted in evidence if, under section 114 (1)(c) Criminal Justice Act 2003, “all the parties to the proceedings agreed to it being admissible”. For that reason he would not require the prosecution to adhere to the putative admission. The judge regarded the material to which the defence of Mr Procter could have recourse provided ample protection of his interests in the disclosure exercise. The judge ruled that if Mr Procter gave evidence he would not be permitted to refer to the prosecution’s preparedness to make the admission.
30.
Mr Aspinall now submits that the judge was wrong to rule as he did. He should have required the prosecution to make the admission it had originally proposed. He submitted that the agreement of other accused was immaterial since there was a difference in kind between an agreed fact and a prosecution admission. The latter did not require the agreement of all parties to the proceedings.
31.
Section 10(1) Criminal Justice Act 1967 provides:
“(1)
Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant, and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted.”
32.
Mr Aspinall submits that there is a material difference between what he calls “an agreed fact” to which all parties may be required to adhere and “an admitted fact” under section 10. It seems to us that a fact may be admitted between any two parties to the criminal proceeding. If all the parties admit the same fact then they are all bound if the admission complies with section 10. However, it is perfectly permissible for some but not all of the parties to admit the fact at issue. Those who decline to admit the fact are not bound by it. If it were otherwise two parties to the proceedings could bind a third without the third party’s agreement. Section 10(1) is explicit that the admission is conclusive evidence against the party making it. It does not require another party to rely on the admission and the admission is not conclusive evidence for any purpose other than that in respect of which the admission was made. In these circumstances, we do not need to decide whether there is any difference between the concept of an admission and an agreement of fact. Provided that the admission complied with the requirements of section 10, it was not binding upon any other party. The judge, if necessary, could have directed the jury of its limited effect, namely that it was irrelevant in the case of any other defendant and applied only in the case of Mr Flisher. Just such a direction would have been required if, for example, the admission concerned an out of court remark made by Procter about another defendant in the absence of that other defendant.
33.
We turn, therefore, to consider whether the putative admission was an admission of “any fact of which oral evidence may be given in criminal proceedings”. The admission was to the effect that someone had told the prosecution that Read/Peacock was dealing in large quantities of cocaine. This is a fact of which ordinarily oral evidence could not have been given without leave because it is a hearsay statement. Formerly, however, it was not unusual for the trial judge, with the approval of the prosecution, to relax the rule against hearsay in order to permit the defence to adduce evidence in cross examination of the officer in charge of the case as to the results of police enquiries; alternatively to permit a formal admission to be made to the agreed effect. Such evidence was adduced so as to do justice to the defence. Since the modernisation of the rules as to hearsay, section 114(1) Criminal Justice Act 2003 is not confined to evidence which the prosecution seeks to adduce against a defendant but hearsay may only be admitted under that section. The leeway formerly afforded by the court to do justice to a defendant is not a preserved common law exception to the hearsay rule under section 118, but section 114(1)(d) was drafted in order to do justice by reversing, in appropriate cases, the effect of
Blastland
[1986] AC 41
(see the observations of Professor JR Spencer, Hearsay Evidence in Criminal Proceedings, 2008, para 10.46). While the defence could not satisfy section 114(1)(c), since all parties to the proceedings did not agree, we can see no reason why the judge could not have ruled the evidence admissible under “the interest of justice” test in section 114(1)(d). While a court might not permit anonymous hearsay to be adduced in favour of the prosecution, it must be recalled that the purpose of the admission was to enable the prosecution to fulfil its disclosure obligations, described in
H
[2004] 2 AC 134
(HC), so as to balance the personal interest of the accused with the public interest which the admission was designed to protect. Had the judge so ruled, we do not consider that section 10 created any barrier to the making of the admission.
34.
We conclude that the judge was in error in accepting Mr Galloway’s change of tack under pressure from Procter’s co-accused. The proposed admission went further than the evidence which the judge considered adequately protected the defendant’s interests. Mr Procter should have had the benefit of the admission that the prosecution was minded to make provided that the admission properly reflected, which it did, the underlying material the effect of which the prosecution concluded it should disclose.
35.
We therefore turn to consider whether the prosecution’s failure to make the admission arguably affected the safety of the jury’s verdict in Procter’s case. As we have said, there was direct evidence from Carly Edwards that the man to whom she spoke and to whom she texted from her mobile telephone “136” to mobile numbers 495 and 672 was the applicant. The applicant chose not to give evidence that he was not the person with whom Miss Edwards was communicating. Her evidence was, therefore, uncontradicted on the main issue in Mr Procter’s case. The admission which the prosecution had been prepared to make was, accordingly, of no probative value to the issue in Procter’s case. The proposed admission made it no more or less likely that Procter or Peacock was the user of phone numbers 495 and 672. Had Mr Procter given relevant evidence as to his lack of access to these telephone numbers and/or Mr Read/Peacock’s access to them, it is just possible that the admission would have provided some tenuous support for it but he chose not to give evidence. We say tenuous because the prosecution had not been prepared to make an admission without the caveat that there was no intelligence indicating any connection between Peacock’s activities and the count 1 conspiracy. As the decision in
Greenwood
[2004] EWCA Crim 1388
demonstrates, issues as to the proper form of admissions should be left to the prosecution and the defence under the light-handed supervision of the judge (see paragraph 41 (iv) per Waller LJ). We would add that when the form of the admission is the product of the prosecution’s disclosure obligations upon which the judge has ruled in private, the judge may well need to take a more active role in order to ensure that proper disclosure is made and that fairness is done to the parties. We have no doubt that the caveat added to the last sentence of the admission, or some form of words to similar effect, was a proper balancing mechanism which Mr Aspinall had no ground to resist. It is important that a jury is made aware in such circumstances of the limitations of an admission; they should not be misled or otherwise invited to speculate in a vacuum of evidence.
36.
Finally, it was submitted that Carly Edwards should have been the subject of a special warning from the judge using his
Makanjuola
discretion. When Mr Aspinall was asked by the court what risk of self-interest there was against which the jury should have been warned, he had nothing to suggest save the possibility that Carly Edwards had been conducting an affair with more than one man without the knowledge of her partner, and that it was easier to implicate Procter than it would have been to implicate others. In our view, there is no substance in this submission. There was no requirement to give a special warning. At pages 132 and 133 of the summing up the judge took care to remind the jury of Mr Aspinall’s propositions to Carly Edwards in cross-examination and her response to them. In our judgment that was sufficient.
37.
We conclude that there is no arguable basis upon which to doubt the safety of the verdict in Procter’s case and we refuse his renewed application to appeal against his conviction.
38.
We turn to examine the applications for leave to appeal against sentence. The judge expressly rejected Eastgate’s assertion that there was any trafficking in contraband tobacco between Essex and Devon. Mr Hynes QC, on behalf of Flisher, endeavoured to persuade the court that the judge could not legitimately exclude the possibility that Eastgate and Flisher were trading in contraband other than cocaine. We reject his submissions. The judge heard the evidence and was entitled to reach his own conclusion. More realistic were Mr Pascoe’s submissions in writing, on behalf of Eastgate, to the effect that the number of trips made to Devon would suggest a total delivery of some 57 kilos of cocaine at an exceptionally low purity of 4%. This was the conclusion reached by the judge. Thus the total weight of pure cocaine delivered was less than 3 kilos.
39.
Counsel conceded that the judge was concerned not only with the total quantity of pure cocaine delivered but also with the length, breath and organisation of the conspiracy. It was conceded by Mr Pascoe and Mr Hynes that Eastgate and Flisher must be treated as the organisers of this conspiracy. The judge pointed to the evidence that the street value of 30 kilos of cocaine was some £600,000. Counsel pointed out that the judge’s sentence upon count 1 in Eastgate’s case (16 years) was at the top end of the range (ignoring purity, a step 2 consideration) for a category 1 offence described at pages 9-15 of the Sentencing Counsel’s Guideline on Drugs Offences (in force in respect of sentences passed after 27 February 2012). Further, and more relevant to the sentencing exercise in which the judge was engaged, the sentence was outside the guidance given in
Aroyewumi
[1995] 16 Cr App R (S) 211, that for those involved in the importation of 5 kilograms of Class A drugs at 100% purity, sentences will be 14 years imprisonment and upwards.
40.
Secondly, this court was asked to consider whether sentences of 7 years in respect of the firearms offences properly reflects the pleas of guilty entered by Eastgate and Flisher. Eastgate was in possession of a Baikal pistol, and Flisher was in possession of a sawn off shotgun, in defence of their criminal enterprise. They were each in possession of suitable ammunition. In our view, it is an aggravating factor that the applicants were in possession of firearms in conjunction with their pursuit of a serious criminal enterprise. The seriousness of the offences was enhanced because the prospect that prohibited firearms may be used was that much increased. We do not consider that sentences of 7 years imprisonment were arguably manifestly excessive.
41.
Thirdly, in the cases of Eastgate and Flisher, the court was invited to consider the principle of totality. No specific reference to the principle was made by the judge in his sentencing remarks but it is clear that he exercised some care in his configuration of the sentences imposed upon each defendant. We do not detect any sign that the judge did not have the principle of totality in mind. Nevertheless, since we are reviewing the sentences as a whole we have reconsidered the issue in the light of the submissions made to us.
42.
Mr Pascoe relied upon the material provided to the judge by way of personal mitigation in Eastgate’s case. We have considered this material. It is well recognised that in cases of this seriousness personal mitigation will need to be quite exceptional if it is to make a material difference to a sentence otherwise required by way of punishment and to protect the public. We do not consider that Mr Eastgate’s personal mitigation falls into this category
43.
We have concluded that the sentence upon count 1 in Eastgate’s case was too long, based upon the guidance provided by this court in
Aroyewumi
and applying the principle of totality which in this case requires the court not to double-count the aggravating feature of the possession of prohibited firearms. We grant leave in his case. We propose that the sentence of 16 years upon count 1 should be quashed and a term of 14 years imprisonment substituted. The sentences totalling 7 years for the firearms offences will continue to operate consecutively making 21 years in all, and the number of days specified will continue to count.
44.
We intend to preserve the distinction drawn between Eastgate and Flisher by the trial judge. We grant leave in Flisher’s case. We propose that the sentence of 14 years imprisonment upon count 1 should be quashed and a term of 12 years imprisonment substituted. The sentences totalling 7 years for the firearms offences will continue to operate consecutively making 19 years in all, and the number of days specified will continue to count.
45.
In our judgment, our decision upon count 1 in the case of the principal offenders has a marginal effect upon those not being sentenced consecutively for firearms offences. It was common ground that Procter made no noticeable monetary gain for his role as a conduit between the couriers and Mr Battle in Devon. He worked under supervision and lived a comparatively modest lifestyle. We grant leave in Procter’s case. We propose to quash the sentence of 9 years imprisonment in his case and to substitute a sentence of 8 years imprisonment with the specified days to count.
46.
The applicant Leader made four journeys to the West Country as a courier of drugs or money and on one of them was caught in possession of 5 kilos of cocaine. He was clearly engaged for monetary gain and had a previous conviction for possession of Class B drugs with intent to supply. We grant leave in Leader’s case. We propose to quash the sentence of 9 years imprisonment and to substitute a sentence of 8 years imprisonment with the specified days to count.
47.
All these proposed orders are provisional. Unless the applicant concerned notifies the court within 7 days of receiving notice of the handing down of this judgment that he wishes further to address the court, the orders respectively to which we have referred will take effect. | {"ConvCourtName": ["transferred to Exeter Crown Court"], "ConvictPleaDate": ["26 April 2011"], "ConvictOffence": ["possession of ammunition without a firearm certificate", "possession of a prohibited firearm", "to supply the Class A drug cocaine", "possession of a prohibited accessory, a silencer, for a firearm", "possession of prohibited ammunition"], "AcquitOffence": ["unlawful possession"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["on re-arraignment"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Exeter Crown Court"], "Sentence": ["21 years in all", "23 years imprisonment", "12 months", "16 years upon count 1 should be quashed and a term of 14 years", "14 years imprisonment", "7 years", "16 years", "9 years imprisonment"], "SentServe": ["concurrently with each other but consecutively"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["Eastgate’s 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": ["Cell site evidence, vehicle detection devices and mobile telephone"], "DefEvidTypeTrial": ["defence was that he was unaware"], "PreSentReport": ["data not available"], "AggFactSent": ["over a period of several months", "aggravating feature of the possession of prohibited firearms.", "previous conviction for possession"], "MitFactSent": ["personal mitigation in Eastgate", "Procter made no noticeable monetary gain"], "VicImpactStatement": ["data not available"], "Appellant": ["applicants"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["6 days extension of time", "against sentence", "against their convictions", "extension of time of 24 days"], "AppealGround": ["(1) The firearms counts were not properly joined in the indictment", "in order to avoid prejudice to Flisher, have been separately tried."], "SentGuideWhich": ["section 240 Criminal Justice Act 2003.", "principle of totality"], "AppealOutcome": ["entence of 14 years imprisonment upon count 1 should be quashed and a term of 12 years", "quash the sentence of 9 years imprisonment in his case and to substitute a sentence of 8", "grant leave in Leader’s case. We propose to quash the sentence of 9 years imprisonment and to substitute a sentence of 8"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["the sentence upon count 1 in Eastgate’s case was too long"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Transferred To Exeter Crown Court"], "ConvictPleaDate": ["2011-04-26"], "ConvictOffence": ["possession of prohibited ammunition", "possession of ammunition without a firearm certificate", "possession of a prohibited accessory, a silencer, for a firearm", "possession of a prohibited firearm", "[conspiracy to]"], "AcquitOffence": ["unlawful possession"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["on re-arraignment"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Exeter Crown Court"], "Sentence": ["Eastgate", "Leader", "Procter", "Flisher"], "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": ["Digital"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["Armed /weapon", "previous conviction for possession", "over a period of several months"], "MitFactSent": ["Procter made no noticeable monetary gain", "personal mitigation in Eastgate"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["Don't know"], "AppealAgainst": ["Other (e.g., application for extension of time to appeal)", "Other (e.g., application for extension of time to appeal)", "against sentence", "against their convictions"], "AppealGround": ["in order to avoid prejudice to Flisher, have been separately tried.", "(1) The firearms counts were not properly joined in the indictment"], "SentGuideWhich": ["principle of totality", "section 240 Criminal Justice Act 2003."], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence", "entence of 14 years imprisonment upon count 1 should be quashed and a term of 12 years", "Allowed&Sentence Replaced by More Lenient Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["the sentence upon count 1 in Eastgate’s case was too long"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 351 |
Neutral Citation Number:
[2011] EWCA Crim 754
Case No:
201005518 D4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 18 March 2011
B e f o r e
:
LORD JUSTICE AIKENS
MR JUSTICE KEITH
MRS JUSTICE THIRLWALL DBE
- - - - - - - - - - - - - -
R E G I N A
v
SERGIO CHARLES SOUTH
- - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 0207 404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - -
Mr D Claxton
appeared on behalf of the
Appellant
Mr S Jones
appeared on behalf of the
Crown
- - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE AIKENS: This is an appeal against conviction by Sergio South. The appeal is made with the leave of the single judge.
2.
On 9 September 2010 in the Crown Court at Bournemouth, after a trial before HHJ Harvey Clark QC and a jury, the appellant was convicted of burglary. On 8 October 2010 the appellant was sentenced to 39 months' imprisonment for that offence. At the same time, he was sentenced to a total of 15 months' imprisonment for other offences with which we are not concerned. The total sentence of imprisonment imposed was therefore 54 months. The judge ordered that 185 days spent in custody on remand should count against that sentence.
3.
The facts giving rise to the charge are as follows. On 13 November 2009 a house at 67 Richmond Park Road, Bournemouth was burgled between the hours of 12.30pm and 3.30pm. At the time three students lived there. One of them was Spencer Dale. The other two students were Jason and Shane Morgan. Mr Dale left the house at about 12.30pm. He did so through the back door, as was the usual practice for the three students who preferred to use that door rather than the front door. The two Morgans were at that time asleep.
4.
At about 3pm Jason came downstairs and saw that the glass pane to the front door, just above the lock, had been smashed and that the door had been opened. A plastic money jar, aftershave, perfume, an iPod Shuffle, an X-Box, a camera and a black rucksack had all been taken.
5.
On the floor below the letterbox of the front door there were some envelopes which had footmarks on them. These envelopes were subsequently given to the police and they were forensically examined. The evidence concerning those footprints was adduced at the trial.
6.
The appellant had three previous convictions for dwelling house burglaries between March 1998 and July 2003 and one conviction for attempted dwelling house burglary in October 2007. He was arrested in respect of this case on 15 November 2009, and his clothes and shoes were taken by the police. Amongst his possessions the police found an iPod. On the following day Mr Dale identified that iPod as being the one that had been stolen in the burglary.
7.
The appellant was charged and cautioned on 23 December 2009. He made no reply after caution.
8.
The defence case statement was served in March 2010. It did not mention a defence of alibi. On the first day of the trial, on 6 September 2010, the appellant served a Notice of Intention to introduce Alibi Evidence.
9.
At the trial the prosecution case was that the appellant had burgled the house. The prosecution relied on (1) the forensic evidence concerning the footmarks on the envelopes, which the forensic scientist, Michael Jones, said provided "moderately strong" evidence as coming from the footwear seized from the appellant. (2) The prosecution relied on the fact that the iPod which Mr Dale had said was his and was taken from the house was found in the appellant's possessions upon arrest. (3) The prosecution was permitted to adduce "bad character" evidence of the appellant's previous convictions concerning dwelling house burglaries. The prosecution said that those convictions demonstrated a propensity to commit similar offences such as this one. (4) The prosecution relied upon the fact that the appellant had had the opportunity to put forward his alibi defence and an explanation of how the iPod came to be in his possession when he was arrested and cautioned but he had not done so.
10.
The defence case was that between 10.30 or 11am until about 4pm on 13 November 2009, the appellant had been at the house of Mr Michael White, helping him repair a motorcycle. The appellant said he had not been involved in the burglary. His case was and his evidence was that he had bought the iPod from a beggar who had asked £10 for it, saying that he (the beggar) had found it in a gutter. The appellant said in evidence that he had given the beggar £3 for it to "get him off my back".
11.
After the appellant had given evidence and the defence was about to call Mr Michael White in relation to the alibi defence, the prosecution applied, under
section 100(4) of the Criminal Justice Act 2003
to adduce "bad character" evidence relating to Mr White's previous convictions. He was then a man of 49 who had been convicted of 53 different offences of dishonesty between 1978 and 1996. The offences involved theft, burglary, handling, obtaining by deception, forgery, using false instruments and other similar offences. Having heard argument, the judge ruled that the application be allowed.
12.
In his ruling the judge said that the evidence that Mr White might be giving from the witness box "is a matter in issue in the proceedings, and insofar as it purports to support the defendant's alibi, is of substantial importance in the context of the case as a whole". The judge held that the fact that Mr White had "so many convictions" for dishonesty went very much to his credibility. The judge said that he recognised that the last of those convictions was in 1996. However, he also said that those convictions showed that for 18 years of Mr White's life he "was habitually committing offences of dishonesty". Therefore, despite the fact that there had been no convictions since 1996, the judge ruled that the fact of those convictions was a matter that should be drawn to the attention of the jury if Mr White gave evidence, because it was a matter that went to his credibility as a witness. It was particularly important, the judge said, because it was the prosecution case that the defendant had "concocted" his alibi.
13.
Michael White then gave evidence to the effect that the appellant was with him from about 12 noon on 13 November for about 4-5 hours. He accepted that he had the convictions listed. However, he said, "I don't think that I have ever lied on behalf of myself. Most of the offences I pleaded guilty to, but three or four I pleaded not guilty. When I pleaded not guilty and was found guilty the court got it wrong". Mr White said that the appellant told him in January 2010 that he faced the burglary charge and that it was subsequently, as a result of talking to his partner, that he (Mr White) thought that the appellant was with him on 13 November 2009.
14.
When the judge summed up the matter to the jury, he reminded them of Mr White's evidence and the fact of his convictions, and Mr White's evidence about those convictions. The judge did not give the jury any directions on what effect, if any, the fact of those convictions should have on their approach to Mr White's evidence of the alibi or possible alibi of the appellant, or on their approach to the issue of Mr White's credibility as a witness.
15.
The principal ground of appeal is that the judge erred in admitting all of the 53 previous convictions of Mr White as "non-defendant bad character" evidence pursuant to
section 100 of the Criminal Justice Act 2003
. As an alternative, it is submitted that the judge should have restricted the number of convictions that he admitted to those that concerned offences involving "untruthfulness". It is submitted that the judge failed properly to exercise his judgment in not limiting the number of convictions admitted.
16.
Sections 100(1)
, (2), (3)(a) and (b) and sub-section (4) of the
Criminal Justice Act 2003
as follows:
"100 Non-defendant’s bad character.
(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if—
(a) it is important explanatory evidence
(b) it has substantial probative value in relation to a matter which—
(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in the context of the case as a whole
or
(c) all parties to the proceedings agree to the evidence being admissible.
(2) For the purposes of subsection (1)(a) evidence is important explanatory evidence if—
(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial.
(3) In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant)—
(a) the nature and number of the events, or other things, to which the evidence relates;
(b) when those events or things are alleged to have happened or existed;
...
(4) Except where subsection (1)(c) applies, evidence of the bad character of a person other than the defendant must not be given without leave of the court."
17.
Mr Claxton, for the appellant, first submits that the convictions of Mr White do not satisfy the conditions of
section 100(1)(b)
. He submits that the evidence of Mr White's convictions do not have "substantial probative value" in relation to a matter which is in issue in the proceeding and it is not of substantial importance in the context of the case as a whole. Mr White's convictions are only relevant to one matter; that is, whether he was telling the truth about the fact or possibility that the appellant was at his house helping him repair a motorbike from about 12 noon to 4 or 5pm on 13 November 2009.
18.
This is certainly a matter which is in issue in the proceedings and that matter is of substantial importance in the context of the case as a whole. After all, if the jury thought that the alibi might be true, they would have had to acquit.
19.
Therefore the emphasis must be on whether those convictions of Mr White have "substantial probative value" in relation to whether he was telling the truth about the fact or possibility of the appellant being with him at the time the burglary was committed. Mr Claxton in this context reminds us of the remarks of Pitchford LJ in
R v Brewster and Cromwell
[2010] 2 Cr App R 20
at paragraph 23, where the learned Lord Justice said that the questions are: is the creditworthiness of the witness an issue of substantial importance; and is the bad character relied upon of substantial probative value in relation to that issue?
20.
In our judgment, the creditability of Mr White's evidence on the alibi is of substantial importance in the trial as a whole. Therefore, the question is whether those convictions are of "substantive probative value" in relation to that issue. In order to decide that, the judge had to have regard to the factors that are set out in
section 100(3)
. The judge did not say in terms in his ruling that he had had regard to those factors. However, we are satisfied that it is clear that, broadly speaking, he did so.
21.
The nature and number of those "events" are 53 convictions for offences of dishonesty over a period from 1978 to 1996. Some 12 of those offences, occurring over the period 1980 to 1996, were, it appears from the antecedents list, for obtaining by deception, forgery and using false instruments. All of those offences must have involved some form of untruthfulness by White, whether in words or deeds. Mr Claxton conceded that much before us.
22.
The judge said that he recognised the distinction between offences of dishonesty and the issue of untruthfulness, although he did not go on to say how that should be reflected in the decision that he had to make in relation to the admission of these convictions. The judge did recognise that all those convictions were within the period 1978 to 1996, but he did not distinguish between when the convictions for "untruthfulness" occurred, or what those particular offences were, or whether those "untruthfulness" offences were the subject of guilty or not guilty pleas.
23.
The offences of "untruthfulness", by which we include obtaining property by deception, using forged instruments and forgery, were, as we have noted, committed between 1980 and 1996. In particular, we note that in 1990 Mr White was put on probation for 18 months for two offences of forgery and three of using a false instrument under the
Forgery and Counterfeiting Act 1981
, and in 1996 he was put on probation for two years for obtaining property by deception. We do not have any further details of those offences and it does not appear that the judge did either.
24.
Perhaps because the judge did not have details of those offences, he did not consider at all the matter of the similarities and dissimilarities between those offences and what Mr White was alleged to have done or be about to do in this case, viz to give a false statement and to lie on oath that the appellant was with him on 13 November 2009. The judge should have done that comparison to see if the similarity was such that it demonstrated that there was a substantial probative value in the convictions (or some of them) of Mr White, in relation to the truthfulness or otherwise of his proposed alibi evidence.
25.
In our judgment, the judge failed properly to make a full assessment of the probative value or otherwise of the convictions of Mr White to see if they did have a substantial probative value in relation to the matter of his proposed evidence concerning alibi of the appellant. However, we have also concluded that if he had done this exercise, he would have been bound to conclude that the convictions which related to "untruthfulness", i.e. those of obtaining property by deception, forgery and using false instruments, did have substantial probative value in relation to his proposed evidence concerning the alibi of the appellant. Therefore the judge would have been bound to permit those to be adduced as "non-defendant bad character" evidence. However, we conclude that he would not have permitted the adduction of the remaining convictions.
26.
The question, therefore, is whether the introduction of irrelevant convictions and the failure to give any direction to the jury on how they should approach the issue of Mr White's credibility and his evidence in the light of those convictions which were admitted in evidence, makes this conviction unsafe.
27.
The fact that the iPod was recovered from the appellant's possessions two days after the burglary was powerful evidence against him. We are unimpressed by the submission that the appellant's explanation of the purchase from the beggar was credible. We are quite satisfied that a jury would have regarded that explanation as incredible.
28.
Mr Claxton submitted that there were difficulties about the evidence of Mr Jones, the foot imprint specialist. Mr Claxton pointed out that Mr Jones had said that the evidence relating to the footprint was "moderately strong support" for the proposition that the appellant's shoe had made the imprint on the envelopes. Mr Claxton told us that, in cross-examination, Mr Jones had said that this expression reflected a statistical probability of the footprint having been made by the shoes of the appellant which was considerably more than a 50 per cent probability, because the linguistic phrases used, such as "weak or limited support" or "extremely strong support", were based on probability which was itself based on a logarithmic scale.
29.
In connection with this point, Mr Claxton referred us to statements of Thomas LJ in
R v T (Footwear mark evidence)
[2011] 1 Cr App R 9
at paras 73 and 74 in particular. Thomas LJ, giving the reserved judgment of the court, stated that if a footwear examiner expressed a view that went beyond saying that the footwear could or could not make the mark concerned, the report should make it clear that the view is subjective and based on experience of the examiner, so that words such as "scientific" used in making evaluations should not in fact be used because they would, before a jury, give an impression of a degree of precision and objectivity which is not present given the current state of expertise. The factors that the expert does use should, however, be set out and explained.
30.
In the present case, the evidence was that Mr Jones had worked as a scientist in this area since 1982 and had been involved in numerous cases concerned with footwear analysis and comparison of footprints. His evidence was that this footprint was in agreement with the size, pattern, detailed alignment and degree of wear with the trainer of the appellant that had been seized from him upon arrest. The zigzag bar pattern and the curved tramline were similar, and the trainers, which were size 9, were consistent with the footprint which was of size 9 or 8 but not size 10. Mr Jones' evidence was that he encountered the type of footwear seized from the appellant in only 2 per cent of cases that he dealt with as a forensic examiner of footwear and footprints. He also said that burglars frequently used sports trainers.
31.
In our view, the evidence of the expert did not transgress in any way the guidelines set down by this court in
R v T
. Mr Jones' evidence was based on his experience, and he gave his evidence in a manner which enabled the jury to make a decision on whether or not they were sure that those footprints were made by the appellant's trainers.
32.
In addition to that scientific evidence, there was the fact that the three occupants of the house did not use the front door habitually to get in and out; they used the back door.
33.
In addition, there was the supporting evidence of the failure of the appellant to mention at the time of charge and caution either the alibi or how he got the iPod. Indeed neither was mentioned in the defence case statement. Mr Claxton pointed out that the prosecution knew of the proposed alibi defence and Mr White's proposed evidence at the time of the first PCMH, and that the prosecution also knew the evidence about the purchase of the iPod at an early stage. But the fact remains that the appellant was not prepared to put those in a formal document until a much later stage in the proceedings.
34.
As noted, the question we have to ask is whether this conviction is safe despite the fact that the judge wrongly admitted all 53 convictions of Mr White as "non-defendant bad character" evidence and failed to give the jury any direction on how to approach Mr White's evidence in the light of that back character evidence of all his previous convictions.
35.
We have, after analysis and consideration, come to the very clear conclusion that this conviction was entirely safe. There was powerful evidence against the appellant in the form of the recent possession of the iPod, the incredible story of the purchase of it and the footmark on the envelopes at the front door where the burglar had broken in. In support, there was the failure to mention the alibi defence or the purchase of the iPod at the charge and caution stage. There was the late introduction of those two aspects, and the properly admitted evidence of the appellant's previous convictions for burglary.
36.
Therefore we must dismiss this appeal. | {"ConvCourtName": ["Crown Court at Bournemouth"], "ConvictPleaDate": ["9 September 2010"], "ConvictOffence": ["burglary"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["custody on remand"], "RemandCustodyTime": ["185 days spent in custody on remand"], "SentCourtName": ["Crown Court at Bournemouth"], "Sentence": ["39 months' imprisonment", "imprisonment imposed was therefore 54 months", "he was sentenced to a total of 15 months' imprisonment for other offences with which we are not concerned"], "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": ["three students lived there"], "VicNum": ["three students lived there."], "VicSex": ["One of them was Spencer Dale. The other two students were Jason and Shane Morgan"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["students"], "VicHomeOffence": ["e three students lived there"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["The prosecution relied upon the fact that the appellant had had the opportunity to put forward his alibi defence and an explanation of how the iPod came to be in his possession when he was arrested and cautioned but he had not done so.", "Amongst his possessions the police found an iPod. On the following day Mr Dale identified that iPod as being the one that had been stolen in the burglary.", "he foot imprint specialist.", "The prosecution relied on the fact that the iPod which Mr Dale had said was his and was taken from the house was found in the appellant's possessions upon arrest.", "the forensic evidence concerning the footmarks on the envelopes, which the forensic scientist, Michael Jones, said provided \"moderately strong\" evidence as coming from the footwear seized from the appellant", "forensically examined", "\"bad character\" evidence"], "DefEvidTypeTrial": ["the appellant served a Notice of Intention to introduce Alibi Evidence.", "The appellant said he had not been involved in the burglary.", "appellant had been at the house of Mr Michael White, helping him repair a motorcycle.", "His case was and his evidence was that he had bought the iPod from a beggar who had asked £10 for it, saying that he (the beggar) had found it in a gutter. The appellant said in evidence that he had given the beggar £3 for it to \"get him off my back\"."], "PreSentReport": ["data not available"], "AggFactSent": ["three previous convictions for dwelling house burglaries", "bad character"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["appellant was convicted"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal against conviction"], "AppealGround": ["The principal ground of appeal is that the judge erred in admitting all of the 53 previous convictions of Mr White as \"non-defendant bad character\" evidence pursuant to section 100 of the Criminal Justice Act 2003."], "SentGuideWhich": ["section 100(4) of the Criminal Justice Act 2003"], "AppealOutcome": ["appeal"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Crown Court At Bournemouth"], "ConvictPleaDate": ["2010-09-09"], "ConvictOffence": ["burglary"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["185 days spent in custody on remand"], "SentCourtName": ["Crown Court At Bournemouth"], "Sentence": ["imprisonment imposed was therefore 54 months", "he was sentenced to a total of 15 months' imprisonment for other offences with which we are not concerned", "39 months' imprisonment"], "SentServe": ["data not available"], "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": ["Stranger"], "VictimType": ["Individuals"], "VicNum": ["3"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Student"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["expert witness", "alibi submitted at a later stage", "\"bad character\" evidence", "stolen item on appellant's possession", "forensic evidence", "stolen item found on offender"], "DefEvidTypeTrial": ["bought stolen item", "Offender denies offence", "Offender claims to have alibi", "Offender claims to have alibi"], "PreSentReport": ["Don't know"], "AggFactSent": ["bad character", "previous relevant convictions"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal against conviction"], "AppealGround": ["judge should not have admitted evidence"], "SentGuideWhich": ["section 100(4) of the Criminal Justice Act 2003"], "AppealOutcome": ["appeal"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 532 |
Neutral Citation Number:
[2014] EWCA Crim 299
Case No: 201205722 C2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date: Thursday, 6 February 2014
B e f o r e
:
LADY JUSTICE MACUR DBE
MR JUSTICE BURTON
THE RECORDER OF CARLISLE - HIS HONOUR JUDGE BATTY QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
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R E G I N A
v
GA
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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)
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Miss L Wilding
appeared on behalf of the
Appellant
Miss J Knight
appeared on behalf of the
Crown
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JUDGMENT (Approved)
1.
LADY JUSTICE MACUR
: This appeal is brought with the leave of the full court. The two grounds of appeal are that the lower court was wrong (i) to adjudge the complainant’s mental capacity to consent to sexual conduct in accordance with the provisions of the Mental Capacity Act 2005 as opposed to the
Sexual Offences Act 2003
, as a consequence of which the wrong standard of proof was applied; and (ii), to admit the evidence of the Prosecution expert witness who had exceeded previous understanding of the law as interpreted in the context of the Mental Capacity Act and, consequently, who’s definition of capacity was so vague and uncertain as to prejudice the jury’s consideration of the facts.
2.
The respondents concede the appeal in terms. They acknowledge that there is a danger that this young appellant was found to have committed the alleged act of sexual assault on the civil standard of proof, namely the balance of probabilities. We consider this to be an entirely realistic and proper concession.
3.
Nevertheless, guidance is sought by the both those representing the appellant and respondent as to the assessment of a complainant’s mental capacity in a criminal trial when the offence alleged to have been committed involves proof of lack of their consent. In this case it did. The appellant was initially charged with rape, before being indicted of sexual assault by touching.
4.
A section 3 sexual assault requires that a Defendant is proved to had touched a complainant intentionally and that such touching was sexual, without the complainant’s consent and that the appellant did not reasonably believe that the complainant consented.
5.
The facts of the matter are these. The appellant is 22 years of age; he was 20 when the incident took place which led to charge. The complainant was of the same age and they were both students at a special needs school in Hertfordshire. Both had learning disabilities. The appellant had an IQ of 51, and is classified as having a moderate learning disability. He is deaf. The complainant was diagnosed as having a mild learning disability.
6.
The appellant and complainant had been friends for some time when they were together on 15 January 2011 at the complainant's house watching television in the living room with the complainant's brother, girlfriend and another. Shortly after, the appellant and the complainant went to the complainant's bedroom where they watched a movie, "Matilda", together.
7.
They were visited in the room by the complainant's brother's girlfriend who, as a witness in the case, noted that all seemed fine. However, there is no issue but that at some stage thereafter a sexual encounter occurred which at least involved the appellant removing the complainant's trousers and underwear by pushing them down her legs and removing his own, lying on top of her rubbing his penis against her vagina. He ejaculated onto the complainant's underwear and that appeared to be the end of the matter. Subsequently, the complainant was to say that she did not like it and had told him to stop.
8.
When the appellant's father collected him later that evening, the complainant’s brother's girlfriend observed that the complainant seemed fine and cuddled the appellant as he left. No complaint was made during the course of that day.
9.
The following day, the complainant mentioned to the brother's girlfriend that she had had sex with the appellant the previous day. When asked if she had said "yes" the complainant said that she did not want to do it and had said "no". The complainant's mother was informed and the police were contacted.
10.
On 19 January, some four days after the incident in question, the complainant’s version of events was obtained and recorded in an ABE (achieving best evidence) interview.
11.
The appellant attended at the police station by appointment. There was a written statement prepared, obviously with the assistance of a solicitor, in which he indicated that during the time they were together in the complainant's bedroom they were cuddling, that the complainant had told him that she was "horny" and that any touching had been consensual. He did not think his penis had gone into her vagina. That is where the evidence stood.
12.
A report as to the complainant's ability to give evidence without an intermediary was commissioned but in fact was prepared to include opinion as to her capacity to consent to sexual relations. The expert concluded in her report that, in accordance with the definition of "mental incapacity" provided by sections 2 and 3 of the Mental Capacity Act 2005, the complainant did not have the capacity to consent to sexual relations. A further expert report was commissioned in response, necessarily so by those representing the defendant, and as a result of that report the court properly required that the experts meet and prepare a joint note of agreement and disagreement. At this stage it is unnecessary to refer further to that document, save that the appellant, by his counsel, Miss Wilding, criticises the inherent contradictions to be found within the agreed opinion of the two experts and the oral evidence given by the prosecution expert at ‘trial’ and summed up to the jury at some length.
13.
Prior to trial, and perhaps unsurprisingly, there was a finding of disability made in relation to the defendant, and, in accordance with
section 4A of the Criminal Procedure (Insanity) Act 1964
, a jury was empanelled in order to make judgment as to whether or not the defendant had committed the act alleged; that is, the jury specifically would not be required to determine the mens rea of the defendant and would not consider whether the appellant (as he became)did or had reason to believe that the complainant was consenting to his sexual advances.
14.
The jury found that he had committed the act alleged and, in accordance with that finding, the judge imposed a supervision order. The appeal followed. The matter came before the full court after refusal by the single judge, and as a result of the discussions therein, a transcript of which has been provided, it became clear that the Vice President required argument to be addressed upon what appeared to be a novel point of law: that is whether or not the trial judge had correctly directed the jury as to the burden and standard of proof applicable in the case of determining the capacity of the complainant to consent to the acts which subsequently the jury found to have occurred and which indeed the appellant had admitted.
15.
We have taxed Miss Knight, prosecuting counsel, to explain the “public interest” said to be served in prosecuting this appellant in the obvious and particular circumstances of the case. The facts are previously recorded, including the relative disability of the appellant comparative to that of the complainant. The decision to charge him first with rape and then with sexual assault is astonishing. Miss Knight, with the benefit of hindsight, frankly acknowledges this. This appellant was a young man of good character, which fact should in our opinion have weighed heavily in the context of the facts as a whole in informing the appropriate course to be followed. But that is as an aside to the issues that we must decide.
16.
The question of capacity to consent to sexual relations is recently dealt with in the decision of the Court of Appeal Civil Division in
IM v LM, AB and Liverpool City
Council
[2014] EWCA Civ 37
. This was a civil appeal from the Court of Protection involving an adjudication upon the capacity of LM to consent to future sexual relations.
17.
The judgment traverses the many first instance decisions made in relation to the question of capacity to consent to sexual relations and then specifically considers the apparently different opinions of Lady Hale in
R v C
[2009] UKHL 42
and the now President of the Family Division who on more than one occasion has added to the jurisprudence in this area by incremental advice in relation to the question, both pre and post the enactment of the Mental Capacity Act 2005.
18.
The judgment of the Court of Appeal recognises and adopts the principle of the obvious desirability that civil and criminal jurisdictions should adopt the same test for capacity to consent to sexual relations by reference to various first instance judgments, amongst others
Re MM (Local Authority X v MM and KM)
[2007] EWHC 2003.
19.
We agree. The approach should be the same necessarily informed by the definition and guidance contained in sections 2 and 3 of the Mental Capacity Act 2005. That is not to say that a jury will need to be directed in strict accordance with the language used by and steps to be adopted in accordance with proceedings brought pursuant to the Mental Capacity Act 2005
20.
That of course does not answer the issue in this appeal, namely who bears the burden and which standard of proof must be applied in criminal proceedings other than those brought pursuant to section 44 of the Mental Capacity Act 2005.
21.
Section 2(4) of the Mental Capacity Act 2005 provides : "
In proceedings under this Act or any other enactment, any question whether a person lacks capacity
within the meaning of this Act
must be decided on the balance of probabilities.”
( emphasis supplied)
22.
Section 44 of the Mental Capacity Act 2005 creates the offence of ill treatment or neglect of those who lack capacity or whom the defendant reasonably believes to lack capacity.
23.
In
Hopkins
[2011] EWCA Crim 1513
, Pitchford LJ, giving the lead judgment of the court, made clear that the Act specifically required the determination of the issue of capacity to be assessed in accordance with the civil standard of proof, but this was not to change the criminal standard of proof of the offence and the manner in which it was committed. That is, he said, at paragraph 47:
"The prosecution must prove (1) to the criminal standard that the defendant ill treated or wilfully neglected a person in his care, and (2) that on a balance of probability that person was a person who at the material time lacked capacity."
This reasoning was followed by a differently constituted Court of Appeal in
R v Dunn
[2011] 1 Cr App R 34
.
24.
The
Sexual Offences Act 2003
does not explicitly define capacity nor refer to a definition of the same “
within the meaning of this [Mental Capacity] Act
”
Section 74 of the Sexual Offences Act 2003
provides the interpretation of "consent":
"For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice."
Quite clearly, therefore, the issue of consent involves inter alia the capacity to choose, subject to inferences that may be drawn in accordance with sections 75 and 76 of the Act. Sections 30(2)(a), 31(2)(a), 32(2)(a) and 33 (2) (a) of the
Sexual offences Act 2003
which create “offences against persons with mental disorder impeding choice” express a lack of capacity as follows:
"... he lacks the capacity to choose …. (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason)..."
25.
The bracketed words reflect the provisions of sections 2(1) and 3(1) of the Mental Capacity Act, and lead us to determine that the difference in definition of capacity in the civil and criminal jurisprudence is a difference without distinction.
26.
However, the similarity of definition does not , in our view, dictate the same standard of proof. We observe that the adjudications of the Court of Protection will look to the future in generality; the criminal law looks retrospectively to specific acts of the past.
27.
The fact that capacity is lacking in relation to one area of decision making at the material time does not necessarily translate into another area or another time. The criminal court concerned with offences created by the Sexual Offences Act must adjudge, if in dispute, capacity to understand and consent to sexual relations. The weight to be given to the complainant’s understanding of the circumstances will therefore vary enormously as between a sexual encounter and consent to invasive medical treatment. This must be fully borne in mind not only by those ‘experts’ who venture away from the Court of Protection into the criminal courts but also the judges who must be careful to appraise the expertise and therefore competence of those called to give ‘expert’ evidence of competence before the jury. At this time there is no better source of reference than
IM v LM, AB and Liverpool City Council
.
28.
The requirement that a complainant should understand the nature of the act of the sexual engagement involved will be a relatively simple issue to address. The question relating to the understanding of reasonable foreseeable consequences obviously should not become divorced from the actual decision-making process carried out in that regard on a daily basis by persons of full capacity. In the opinion of this court, adopting the opinion of the Court of Appeal Civil Division in
IM
, this process is "largely visceral rather than cerebral, and owes more to instinct and emotion rather than to analysis".
29.
Section 1(2) of the Mental Capacity Act 2005 provides that “A person must be assumed to have capacity unless it is established that he lacks capacity”. When capacity to consent is in issue in criminal proceedings, the burden of proving incapacity falls upon the party asserting it and will inevitably be the prosecution. We consider that, other than in criminal proceedings pursuant to section 44 of the Mental Capacity Act, the prosecution must discharge that burden to the criminal standard of proof; that is, they must make the jury sure that the complainant did not have capacity to consent. If the jury cannot be sure that the relevant complainant lacks capacity, then they must be directed to assume that he or she does. The issue for them then will be an examination of all the facts and circumstances to determine whether or not the complainant consented to the act or acts in question and whether the alleged assailant knew they did not consent or did not believe that they did so or were unreasonable in their belief that there was consent.
30.
In this particular case, expert evidence was led before the jury on the question of the complainant’s capacity. It appears to us that it will inevitably be the case, if capacity is an issue, that an expert will be called to provide evidence which would not otherwise be within the common experience of the jury. It is vitally important that such evidence is ‘expert’ , relevant and only deals with the matter in issue, namely capacity. Having read the transcript of the prosecution expert evidence in this case we regret to say that she exceeded her remit, particularly in articulating her own interpretation of the facts as to whether or not the complainant did consent. It is unfortunate that the witness was not adequately managed in the court process as a whole. Whatismore, it seems to us that the opinions expressed by the prosecution expert did not reflect the jurisprudence at the time.
31.
Therefore, even if not conceded we would have allowed the appeal being certain that decided that the jury’s finding was unsafe on two grounds: (i) the judge adopted the wrong standard of proof in his directions to the jury in relation to the issue of capacity; and (ii) the expert evidence not fit for purpose to assist the jury to come to any conclusion at all as to the capacity of by the complainant to consent to sexual relations.
32.
In leaving the particular issues raised in this appeal, it behoves us to say that ‘charging’ decisions in relation to the prosecution of offences concerning complainants where there is or may be an issue of capacity to consent, would benefit from a measured consideration of the full array of offences created by section 30, and following, of the
Sexual Offences Act 2003
and which incorporate the full range of criminal sexual activity.
33.
Finally, we would not wish our expressed and implicit disapprobation of the charging decision in this case to be seen as presenting any bar or obstacle to those cases which quite clearly have at their heart the intent to prosecute those who exploit the vulnerable and those of limited capacity.
34.
The appeal was properly conceded. We allow the appeal. The finding made by the jury pursuant to
section 4A
of
the 1964 Act
will be set aside and the supervision order discharged.
35.
Are there any further matters?
36.
MISS WILDING: My Lady, I believe it is incumbent upon me to invite the defendant's costs order. It was raised on the last occasion and on that occasion it was said that it would need to be renewed upon determination today.
37.
LADY JUSTICE MACUR: There has been a concession of the appeal made known at an early stage.
38.
MISS WILDING: The concession was made known as a result of service of my skeleton argument on 10 January. The concession was made by my learned friend in her reply on the 17th.
39.
LADY JUSTICE MACUR: Have you a schedule of costs?
40.
MISS WILDING: No, I do not, my Lady. I can certainly arrange for that to be done. In the usual course of events it will involve a representation order, but because this was a finding and not a conviction I understand a different order has to be made by the court. It will simply amount to the preparation undertaken, the service of the advice and grounds of appeal and the skeleton argument.
41.
LADY JUSTICE MACUR: I see.
42.
What do you say about that, Miss Knight?
43.
MISS KNIGHT: It is right to say that the appeal was not conceded until a skeleton in response was served on the 17th, so the Crown would not oppose that viewpoint.
44.
LADY JUSTICE MACUR: Thank you very much.
45.
MISS WILDING: I ought to add, in the note provided by the Registrar following the hearing before the Vice President on 28 November, it says that at paragraph 6 a defendant's costs order under section 16(9)(b) of the Prosecution of Offences Act was made, but certainly on that occasion I was informed I would need to renew it at the conclusion of the hearing today.
46.
LADY JUSTICE MACUR: Yes, so we make a defendant's costs order. Thank you very much.
47.
Is there anything further from you, Miss Wilding?
48.
MISS WILDING: No, thank you.
49.
LADY JUSTICE MACUR: Miss Knight, are there any points that you wish to be covered that have not been covered in the judgment?
50.
MISS KNIGHT: No, thank you, my Lady. | {"ConvCourtName": ["data not available"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["rape"], "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": ["imposed a supervision order"], "SentServe": ["data not available"], "WhatAncillary": ["a supervision order"], "OffSex": ["he"], "OffAgeOffence": ["20"], "OffJobOffence": ["students"], "OffHomeOffence": ["complainant's house"], "OffMentalOffence": ["learning disabilities"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["appellant and complainant had been friends for some time"], "VictimType": ["The complainant was of the same age"], "VicNum": ["The complainant"], "VicSex": ["her"], "VicAgeOffence": ["complainant was of the same age"], "VicJobOffence": ["students"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["learning disabilities"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["witness", "two experts", "ABE (achieving best evidence) interview."], "DefEvidTypeTrial": ["consensual", "two experts"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["jury’s finding was unsafe"], "AppealGround": ["grounds of appeal are that the lower court was wrong (i) to adjudge the complainant’s mental capacity to consent", "(ii), to admit the evidence of the Prosecution expert witness"], "SentGuideWhich": ["4A of the Criminal Procedure (Insanity) Act 1964", "Mental Capacity Act 2005", "Sexual Offences Act 2003"], "AppealOutcome": ["allowed the appeal being certain that decided that the jury’s finding was unsafe"], "ReasonQuashConv": ["(i) the judge adopted the wrong standard of proof in his directions to the jury in relation to the issue of capacity; and (ii) the expert evidence not fit for purpose"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["data not available"], "ConvictPleaDate": ["Don't know"], "ConvictOffence": ["rape"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["data not available"], "Sentence": ["imposed a supervision order"], "SentServe": ["data not available"], "WhatAncillary": ["a supervision order"], "OffSex": ["All Male"], "OffAgeOffence": ["20"], "OffJobOffence": ["Student"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Has learning difficulties"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1 of 1"], "VicSex": ["All Female"], "VicAgeOffence": ["20"], "VicJobOffence": ["Student"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Has learning difficulties"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["two experts", "Victim testimony", "witness"], "DefEvidTypeTrial": ["Expert 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": ["Conviction"], "AppealGround": ["(ii), to admit the evidence of the Prosecution expert witness", "grounds of appeal are that the lower court was wrong (i) to adjudge the complainant’s mental capacity to consent"], "SentGuideWhich": ["4A of the Criminal Procedure (Insanity) Act 1964", "Sexual Offences Act 2003", "Mental Capacity Act 2005"], "AppealOutcome": ["allowed the appeal being certain that decided that the jury’s finding was unsafe"], "ReasonQuashConv": ["(i) the judge adopted the wrong standard of proof in his directions to the jury in relation to the issue of capacity; and (ii) the expert evidence not fit for purpose"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 178 |
Case No.
2003/03916/C1
Neutral Citation Number:
[2004] EWCA Crim 1358
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Wednesday 21 May 2004
B e f o r e:
LORD JUSTICE WALLER
MR JUSTICE DAVIS
and
MR JUSTICE DAVID CLARKE
--------------
R E G I N A
- v -
CHRISTIAN FRANCIS McCONNELL
--------------
Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
--------------
MR P McCARTNEY appeared on behalf of THE APPELLANT
MR H O'BRIEN QUINN appeared on behalf of THE CROWN
--------------
J U D G M E N T
Wednesday 12 May 2004
LORD JUSTICE WALLER: I will ask Mr Justice Davis to give the judgment of the court.
MR JUSTICE DAVIS:
1.
On 25 June 2003, in the Crown Court at Stoke-on-Trent, before His Honour Judge Eades and a jury, the appellant was convicted by a majority verdict of indecently assaulting a male person aged 9 years. On 22 August 2003, he was sentenced to a three year Community Rehabilitation Order. He now appeals against conviction by leave of the single judge.
2.
The background facts are these. At approximately 1pm on 10 June 2001 a 9 year old boy called Daniel was indecently assaulted by a man who sat down beside him and put his hand down his trousers. The incident occurred in an area called “the doctor's garden” in a hospital in Cheddleton. The garden was described as a grassy area surrounded by trees and shrubs which enclosed the area. Access could only be gained through the entrances. The prosecution case in summary was that the appellant, who was an in-patient at “the Grange”, a secure unit in that hospital, indecently assaulted Daniel by putting his fingers down his underpants. Daniel's mother and a psychiatric nurse at the hospital saw the appellant, whom they both knew, in the vicinity at the relevant time. Subsequently, Daniel and him mother identified the appellant at a video identification parade held on 17 September 2002.
3.
The defence case in summary was a straightforward denial. The appellant accepted being in the vicinity at the time, but he maintained that he never entered the doctor's garden. The issue for the jury was one of identification.
4.
Daniel gave evidence by way of a video-recorded interview. He said that he had been visiting his mother, who was employed at the hospital. He had been playing football with his mother, her partner and also their dog in the doctor's garden. The two adults walked away and he began to cry because his mother had left him behind. The indecent assault occurred when he sat on a low wall on the pathway leading to the doctor's garden. He screamed when the assault took place.
5.
In interview, when asked what the man looked like, he said, “I haven't got the slightest clue”. When prompted, he described the man as being tall and aged about 21. He gave evidence that he and his mother saw the appellant in the hospital canteen some time after the incident, but prior to the identification parade, and that his mother pointed to the appellant and asked Daniel if that was the man. In cross-examination he was adamant that the man he had picked out at the identification parade was the man who had indecently assaulted him and not the person his mother had pointed out to him.
6.
Daniel's mother gave evidence that she had walked a short distance away from Daniel before she and her partner started calling for him. She then heard a scream. She saw the appellant moving away from the doctor's garden and hurrying towards the main entrance of the hospital. She denied that she had pointed the appellant out to her son in the canteen, as her son claimed. She stated that neither of them saw the appellant after that day. She accepted that what she had originally described as screaming was more like sobbing and crying and that she heard the sounds after she saw the appellant leaving the doctor's garden. That would be after the assault.
7.
Her partner, Keith Grain, gave evidence that they had left Daniel behind and they began to call for him. He saw a man 20 feet away walking from the direction of the hospital. He turned away and the man disappeared. He then saw the same man walking from the path to the doctor's garden. He identified a volunteer at the subsequent identification parade.
8.
A psychiatric nurse called Michelle Walker described how she was standing next to the vending machine when she saw the appellant run through a side entrance near the fire exit. He ran past her, nearly knocking her over. She stated that he appeared to be scared and looked over his shoulder as if he was being chased. She watched him head along a corridor towards the back of the hospital, which was not near the canteen.
9.
At the close of the prosecution case counsel appearing for the appellant made a submission of no case to answer, but that was rejected by the judge.
10.
The appellant then gave evidence consistent with his interview. He denied going into the doctor's garden. He said that he had not seen Daniel's mother or the psychiatric nurse, although he accepted that he knew them. His evidence was that he had left the hospital to purchase cigarettes and he re-entered through the side exit, jogging slowly. He then turned right and stopped in the corridor for ten minutes to have a cigarette and then walked to the canteen. He said that, due to his medical condition, he often felt fearful and anxious and walked with his head down.
11.
No complaint of any kind is made in relation to the summing-up. It is accepted that it was fair and balanced and appropriately highlighted the potential weaknesses in the identification evidence. Nevertheless, it is said that the identification evidence was so weak and unreliable that the judge erred in rejecting the submission of no case to answer at the close of the prosecution case.
12.
There is no doubt that there were significant problems with the identification evidence of the 9 year old complainant. He gave no detailed identification description to the police at the time. There was a delay of over one year before the identification procedure, and before that the appellant had been (on the complainant's evidence, although not the evidence of his mother) pointed out to the complainant by his mother in the hospital canteen on a previous occasion, which gave rise to the suggestion that during the identification parade he identified the man that his mother had pointed out and not the person whom he recollected had assaulted him. In addition there were various discrepancies as to the time when he said he had screamed out and what his mother actually heard and what she saw when she heard him sobbing.
13.
However, all this the judge accepted. He agreed if the evidence of the complainant was the only evidence, it would not suffice. But there was significantly more to it than that. It was not disputed that someone had assaulted the complainant. The witness, Keith Grain, saw a man at the scene and indeed disappearing away, albeit that he could not pick out the appellant at the identification parade. The mother, who knew the appellant, had seen him leaving the garden in a hurry and moving towards the main entrance of the hospital, albeit this was at a time after she had heard her son crying or sobbing. In due course she identified the appellant at the subsequent identification parade. She had seen no one else leave the garden. The nurse, Michelle Walker, who knew the appellant, had seen him running by a side entrance to the hospital and then away from the hospital looking scared. The side entrance was no great distance away from the main entrance. All of this, it was accepted, took place in a relatively short time-scale.
14.
There was, therefore, an amount of evidence to support the young complainant's evidence, even if his evidence, taken entirely on its own, was unsatisfactory. Accordingly, the judge was justified in leaving the matter to the jury. Thereafter, it was for the jury properly directed, as they were in the summing-up, to decide whether or not the appellant was guilty.
15.
In such circumstances it cannot be said that this conviction is unsafe. The appeal is therefore dismissed. | {"ConvCourtName": ["Crown Court at Stoke-on-Trent"], "ConvictPleaDate": ["On 25 June 2003"], "ConvictOffence": ["indecently assaulting a male person aged 9"], "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": ["three year Community Rehabilitation Order."], "SentServe": ["data not available"], "WhatAncillary": ["three year Community Rehabilitation Order."], "OffSex": ["APPELLANT"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["in-patient at “the Grange”, a secure unit in that hospital"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["a man who sat down beside him"], "VictimType": ["9 year old boy"], "VicNum": ["9 year old boy"], "VicSex": ["9 year old boy"], "VicAgeOffence": ["9 year old boy"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Daniel gave evidence", "mother and a psychiatric nurse at the hospital saw", "video identification parade"], "DefEvidTypeTrial": ["He denied going into the doctor's garden.", "defence case in summary was a straightforward denial."], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["APPELLANT"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeals against conviction"], "AppealGround": ["There is no doubt that there were significant problems with the identification evidence"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["The appeal is therefore dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["an amount of evidence to support the young complainant's evidence, even if his evidence, taken entirely on its own, was unsatisfactory. Accordingly, the judge was justified in leaving the matter to the jury."]} | {"ConvCourtName": ["Crown Court At Stoke-On-Trent"], "ConvictPleaDate": ["2003-06-25"], "ConvictOffence": ["indecently assaulting a male person aged 9"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["data not available"], "Sentence": ["three year Community Rehabilitation Order."], "SentServe": ["data not available"], "WhatAncillary": ["three year Community Rehabilitation Order."], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Temporary Accommodation"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Stranger"], "VictimType": ["Don't Know"], "VicNum": ["1"], "VicSex": ["All Male"], "VicAgeOffence": ["1"], "VicJobOffence": ["Child"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["No"], "ProsEvidTypeTrial": ["video identification parade", "Victim testimony", "Eye-witness testimony"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["No"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Conviction unsafe"], "AppealGround": ["Problems with evidence"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["an amount of evidence to support the young complainant's evidence, even if his evidence, taken entirely on its own, was unsatisfactory. Accordingly, the judge was justified in leaving the matter to the jury."]} | 460 |
Neutral Citation Number:
[2011] EWCA Crim 314
Case No:
201100229/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 28th January 2011
B e f o r e
:
LORD JUSTICE HOOPER
MR JUSTICE OPENSHAW
MRS JUSTICE SHARP DBE
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
JORDAN ANTHONY GREER
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
QWordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Miss E Mushtaq
appeared on behalf of the
Applicant
Miss L Bakker
appeared on behalf of the
Crown
J U D G M E N T
1.
MRS JUSTICE SHARP: This application for permission to appeal against sentence comes before the full court on the direction of the Registrar. It raises one point only, namely whether the judge was wrong to refuse to take into account the time that the applicant had spent on remand in custody when activating a suspended sentence.
2.
The applicant was sentenced by Mr Recorder Atherton on 30th September 2010, at Bolton Crown Court, for one offence of assault occasioning actual bodily harm and one offence of burglary. The assault occurred when two of the applicant's companions forced entry into the home of the complainant. The applicant then punched the complainant once, as result of what he was alleged to have said about the applicant's girlfriend.
3.
The burglary took place at the home of the applicant's mother. The applicant broke into her home and stole her mobile phone and £20 in cash when she was away on holiday.
4.
The applicant admitted the offence when interviewed. He was then 19 years old and had a poor record.
5.
When he came to be sentenced the applicant had by then been in custody on remand for 106 days. The Recorder imposed concurrent sentences of detention in a young offender institution for the two offences: 4 months for the assault and 2 months for the burglary which he suspended for 12 months with a Supervision Requirement.
6.
The applicant did not comply with the Supervision Requirement. He was brought back to court on 2nd December 2010 for breach of the Requirement and appeared before His Honour Judge Everett. The judge said that if the applicant now complied with future requirements of the probation service, he would give him another chance by imposing a breach activity requirement but that if he did not, he would be sent to prison.
7.
Still the applicant failed to comply. Accordingly, on 6th January 2011 the appellant appeared for a second time before His Honour Judge Everett for breach of the suspended sentence requirement.
8.
Miss Mushtaq, who appeared for the applicant on that occasion and appears for him today, submitted to the judge that he should give the applicant credit for the time spent on remand in custody, having regard to the provisions of
section 240(3) of the Criminal Justice Act 2003
.
9.
The judge did not have the benefit of a transcript of the sentencing remarks made by Recorder Atherton on 30th September 2010. Nonetheless it appears from what the judge then said that he had some information as to what had been said by Recorder Atherton. We do not know what was available to the judge, but it is clear that the judge was under the impression as a result, first, that the Recorder had explicitly said he had taken the time the applicant had spent in custody into account when he passed sentence, and second, that the Recorder would otherwise have passed a sentence on the applicant "in the region of 10 months". In the result, the judge activated the suspended sentence in full. His view was, as he said expressly, that the applicant "richly deserved the full 4 months" that were imposed by the Recorder.
10.
In his sentencing remarks the judge said:
"The suspended sentence was imposed by Mr Recorder Atherton and Mr Recorder Atherton, in passing sentence, said (the comments that I have are), 'In sentencing you, I do take account of the time you have spent in custody."
11.
We now have, as the judge did not, a transcript of Recorder Atherton's sentencing remarks. What the Recorder said was this:
"I have to bear in mind the public interest and the interest of trying to avoid further offending. It seemed to me that, if I were to send you back to Forest Bank, you would soon be released because of the time that you have spent in custody already and you would then be released into a situation of homelessness and hopelessness and a return to the company of people with whom you have been offending in the past, so that outlook is bleak.
The question is whether I can step back from an immediate custodial sentence and, having regard to your age and the fact that you indicated that you would plead guilty to this offence at the plea and case management hearing and that you admitted the offence at your mother's house, it seems to me that there is an alternative available to me, which is to impose a suspended sentence of imprisonment and that is what I will do. The offence itself merits six months imprisonment (that is in a young offender institution), having regard to the guilty plea that was indicated, that would probably be more appropriately a four month sentence, so that is what I am going to pass; a sentence of four months imprisonment, which will be suspended for 12 months on condition that you do not commit any further offence during that period."
12.
In those circumstances Miss Mushtaq's principal submission is that the judge was wrong not to take the days spent on remand into account when activating the applicant's suspended sentence because he was wrong in his conclusion that those days had specifically been taken into account by the Recorder when he imposed the suspended sentence.
13.
In our judgment, it is indeed clear from the Recorder's sentencing remarks, as is submitted, that he did not expressly take the days the applicant had spent on remand in custody into account, although the length of the sentence that was passed might have suggested otherwise. On that ground alone it follows, in our view, that the judge's refusal to take the relevant days into account when activating the applicant's suspended sentence was wrong, for the reasons explained by this court in
R v Mari
[2010] EWCA Crim 1143
, a case in which a similar problem to the one which has arisen in this case occurred. See in particular paragraph 6 to 9 of that decision where Maddison J, giving the judgment of the court said this:
"The Registrar referred this case to the full court so that it could consider the lawfulness of the judge's approach. This case illustrates the sorts of problems that can arise when the activities of a persistent offender bring into play the somewhat complex provisions of the
Criminal Justice Act 2003
. We are sure that the judge's approach was in fact unlawful.
Sections 240(1)
,(3) and (4) insofar as they are material provide that when a court imposes a sentence of imprisonment for an offence in connection with which the offender has been remanded in custody, it must direct that the number of days for which the offender has been thus remanded are to count as time served by him as part of the sentence unless it considers that it would not be just to give such a direction.
Section 240(7)
provides in effect that for the purposes of
section 240
a suspended sentence is to be treated as a sentence of imprisonment not when it is first imposed but if and when it is ordered to take effect, pursuant to paragraph 8 of schedule 12 to the Act of 2003, which governs the court's powers to activate a suspended sentence in whole or in part should the offender have broken any of the community requirements associated with the suspended sentence, or should he have committed a further offence during its operational period. Thus, in this case the judge was obliged to direct that the periods of 35 and 30 days, to which we have referred, should count towards the sentence unless he thought that it would be unjust to do so.
With respect to the judge, his assumption that the two judges who passed the suspended sentences would have adopted the approach to which he referred could not possibly found a legitimate conclusion that it would not be just to direct that the periods of 35 and 30 days should count towards the sentences he activated. In fact, there is nothing to suggest that either of the judges who passed the suspended sentences originally did in fact adopt the approach that His Honour Judge Hopkins QC assumed that they did.
If further support beyond the terms of the Act itself were required that the judge's approach was unlawful, it is to be found in the case of Fairbrother to which we have already referred, and in which this court in a constitution presided over by the then Vice Precedent, Latham LJ accepted without question that the sentencing judge had been in error in failing when activating a suspended sentence to direct that the 158 days that the appellant had spent in custody prior to the passing of that suspended sentence should count towards the effective sentence now being imposed, and proceeded to correct the error."
14.
15.
Accordingly, we grant permission to appeal and allow the appeal against sentence to this extent only: we exercise our discretion under
section 240 of the Criminal Justice Act 2003
, to credit the applicant with the time he has spent on remand in custody. We direct that the 106 days which, on the information presently before us, is the time that the applicant spent on remand in custody, shall count as time served by him as part of the sentence. In the event that the information we have been given is not accurate, then the number of days can be corrected administratively by communication with the Registrar to the Court of Appeal. | {"ConvCourtName": ["Bolton Crown Court"], "ConvictPleaDate": ["30th September 2010"], "ConvictOffence": ["offence of burglary", "assault occasioning actual bodily harm"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["applicant admitted the offence when interviewed"], "PleaPoint": ["applicant admitted the offence when interviewed"], "RemandDecision": ["remand in custody"], "RemandCustodyTime": ["custody on remand for 106 days."], "SentCourtName": ["Bolton Crown Court"], "Sentence": ["4 months for the assault and 2 months for the burglary"], "SentServe": ["concurrent sentences"], "WhatAncillary": ["breach activity requirement", "he suspended for 12 months with a Supervision Requirement."], "OffSex": ["He"], "OffAgeOffence": ["19"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["homelessness"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["applicant's mother."], "VictimType": ["applicant's mother"], "VicNum": ["applicant's mother"], "VicSex": ["applicant's mother"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["broke into her home"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["data not available"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["The applicant did not comply with the Supervision Requirement.", "had a poor record."], "MitFactSent": ["19 years old", "plead guilty"], "VicImpactStatement": ["data not available"], "Appellant": ["The applicant was sentenced"], "CoDefAccNum": ["two of the applicant's companions"], "AppealAgainst": ["appeal against sentence"], "AppealGround": ["judge's approach was unlawful,", "judge was wrong to refuse to take into account the time that the applicant had spent on remand in custody when activating a suspended sentence."], "SentGuideWhich": ["data not available"], "AppealOutcome": ["we grant permission to appeal and allow the appeal against sentence to this extent only: we exercise our discretion under section 240 of the Criminal Justice Act 2003, to credit the applicant with the time he has spent on remand in custody."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Bolton Crown Court"], "ConvictPleaDate": ["2010-09-30"], "ConvictOffence": ["offence of burglary", "assault occasioning actual bodily harm"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["During interview"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["106 days"], "SentCourtName": ["Bolton Crown Court"], "Sentence": ["6 months"], "SentServe": ["Concurrent"], "WhatAncillary": ["breach activity requirement", "he suspended for 12 months with a Supervision Requirement."], "OffSex": ["All Male"], "OffAgeOffence": ["19"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Homeless"], "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": ["Don't know"], "DefEvidTypeTrial": ["Don't know"], "PreSentReport": ["Don't know"], "AggFactSent": ["The applicant did not comply with the Supervision Requirement.", "had a poor record."], "MitFactSent": ["plead guilty", "19 years old"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["2"], "AppealAgainst": ["appeal against sentence"], "AppealGround": ["judge's approach was unlawful,", "judge was wrong to refuse to take into account the time that the applicant had spent on remand in custody when activating a suspended sentence."], "SentGuideWhich": ["Don't know"], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 542 |
Neutral Citation Number:
[2015] EWCA Crim 390
Case
No: 201404029/B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 20th February 2015
B e f o r e
:
LORD JUSTICE LAWS
MR JUSTICE HICKINBOTTOM
MR JUSTICE KNOWLES
- - - - - - - - - - - - - - -
R E G I N A
v
MARLEE DANN
- - - - - - - - - - - - - - -
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 R linford
appeared on behalf of the
Appellant
Mr I Dixey
appeared on behalf of the
Crown
- - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE LAWS: On 4th August 2014 before His Honour Judge Cottle at the Plymouth Crown Court this appellant pleaded guilty on re-arraignment to conspiracy to blackmail. The Crown case was in barest outline as follows. A man called Josh Pollard was serving a prison sentence in 2013 in Exeter jail. The appellant was on remand at the jail. Pollard was said to owe money to an associate of the appellant's called Mathew Bird. The accusation was that the appellant together with others attempted to force Pollard to repay by threatening to throw scolding water over him or slash him with a blade.
2.
There were three co-defendants, Mathew Bird, who pleaded guilty to the conspiracy and Joe Burkett and Ashton Hall. Ashton Hall was the appellant's partner and the mother of his two small children. Her role was allegedly that of a conduit through which the appellant in prison could communicate with Bird and Burkett. The Crown offered no evidence against Burkett and Hall, in respect of whom not guilty verdicts were duly entered. The appellant was sentenced to 18 months' imprisonment on 19th December 2014. He appeals against his conviction by leave of the single judge. As we shall explain the appeal concerns the circumstances leading to his plea of guilty on 4th August 2014 and the fact that on 9th October 2014 his application to vacate the plea was refused which His Honour Judge Darlow.
3.
All four defendants pleaded not guilty at a mention in the Crown Court on 6th December 2013. It was at that stage anticipated that the Crown would proceed to trial against all four. Mr Dixey for the prosecution this morning has indicated there were however some discussions in June 2014. At all events on 30th July 2014 at the Plymouth Magistrates' Court a representative of the CPS approached Mr Stephen Nunn, a solicitor, instructed in this case on behalf of Ashton Hall. In fact the proceedings in the Magistrates' Court involved this appellant's brother Luke Dann, who Mr Nunn also represented. The Crown representative indicated to Mr Nunn that if acceptable pleas were received in this case from the appellant, Bird and Burkett the Crown would not seek to proceed against Ashton Hall. The next day the indication was repeated but this time to the effect that pleas from the appellant and Bird only would be acceptable and in that case the other two would not be proceeded against. That is what in the event happened. Mr Nunn deposes to these events in a witness statement.
4.
The proposal to drop the case against Burkett and Hall if the appellant and Bird pleaded guilty was put to the appellant's counsel Mr Linford by counsel for the Crown, at court, on 4th August 2014, when the case was listed for trial. Mr Linford was concerned about it. He considered that his client was being put under very great pressure to plead. He and Ashton Hall has we have mentioned two children, they were aged 2 and 4 and would dependent on relatives if both parents were convicted and sent to prison. The judge gave Mr Linford plenty of time to consider the position.
5.
In the event the appellant pleaded guilty on 4th August 2014 having signed a statement which includes this:
"I have two children aged 4 and 2. I cannot countenance the possibility of their being without a mother for a period of time were Ashton to be convicted and sent to prison. Today is the first time this has been suggested to me ie that her fate may be in my hands ...
I am not guilty of the offence of which I am charged. My barrister Mr Linford, has advised me that I must not plead guilty unless I am guilty. However, I feel that the pressure that this offer has put me under leaves me with no choice but to admit to something that I have not done. I cannot take the risk of Ashton being convicted and imprisoned and me likewise when a plea from me will certainly avoid the risks of Ashton's conviction."
6.
In these circumstances it is submitted that the appellant's plea of guilty was obtained through improper pressure and should have been vacated and in the circumstances the conviction is unsafe.
7.
It is elementary that a conviction may be set aside if a defendant is put up under pressure to plead guilty by the judge or anyone else, even a member of his family including a member of his family - see for example
R v Nightingale
2 Cr App R 7 and
R v Jordan
73 Cr App R 194. Such cases however offer little assistance here. The case of
R v Herbert
(1992) 94 Cr App R 230
does. In that case the appellant was jointly charged with his wife and another which drugs offences. During the trial the wife's counsel approached prosecution counsel and asked if the Crown would wish to proceed against the wife if the husband pleaded guilty. The Crown indicated that in that case they would consider it in the public interest not to proceed against the wife. The appellant changed his plea while continuing to maintain his innocence. Just as happened here.
8.
He was very properly advised by counsel, as was this appellant, that he should only plead guilty if he was guilty. He was sentenced to five-and-a-half years' imprisonment. He appealed against conviction alleging that he had been put under improper pressure to plead guilty. The appeal was dismissed.
9.
The single judge refusing leave in this case said this:
"I see no reason why, having obtained the benefit of your decision to admit guilt by getting the charge against your partner dropped, you should now be allowed to disown it. The case of Steven Herbert
(1992) 94 Cr App R 230
confirms that you cannot.
Nevertheless, there is a difference in the case of Steven Herbert in that the approach and proposal, were in this case made and instigated by the Prosecution. While I doubt that this difference is material, the issue raised by your appeal is in my view one of sufficient general importance that it should be considered by the Full Court of appeal."
10.
The essential reasoning in
Herbert
is with respect contained in the following passages from the judgment of the court in delivered by Taylor LJ (as he then was):
"It is common ground that, either when asked or of his own initiative, it is perfectly proper for prosecuting counsel to state the Crown would accept a plea to unlawful wounding on a charge under
section 18
of
the Offences Against the Person Act 1861
, or allow counts charging earlier offences of dishonesty to lie on the file, should the defendant plead guilty to the latest offence charged. Such 'offers' could be said to be inducements or to involve pressure, but making them has long been accepted as properly part of the discharge of his duty by counsel for the Crown. That duty requires him to balance the need to bring serious wrongdoing to book and, on the other hand, not necessarily to pursue every charge to a conclusion regardless of the public interest and the public purse ...
Mr Lucas sought to distinguish between offers or inducements relating solely to the particular defendant's own case and offers or inducement relating to interest of others. He submitted that the former category may be permissible as in the instance examples of agreeing to accept a lesser plea or dropping certain counts. This case, however, comes into a letter category, for here the inducement relates not only to the appellant's case by also to that of his wife. The second category involves a form of 'pressure' which should not, counsel submits, be permitted. Although it may be that many defendants would be more influenced by the effect of their plea on their wives than on themselves, we can see no valid distinction in principle."
Then finally a little later:
"In the end, therefore, the appellant's case comes to this. Nobody did anything wrong; not the judge not prosecuting counsel, not defending count. Indeed defending counsel carried out his duty to his client to the letter and beyond. But, despite that, prosecuting counsel's answer, which was not in truth an offer but a statement of how the Crown saw its duty, has had the effect of rendering this appellant's plea a nullity. We cannot accept that argument. Of course there are, as Mr Lucas accepts, always pressures on an accused person, and sometimes the factors he has to weigh in deciding how to plea make for difficult decisions. By in our judgment, the course of events here involves no fault on anyone's part. The appellant had the benefit of the post conscientious advice and he made his own free choice."
11.
It seems to us there is a principle to be derived from the reasoning of this court in
Herbert
. A defendant faced with the prospect that if he pleads guilty he may obtain some advantage may of course feel pressurised to plea guilty, depending no doubt on the attraction of the advantage, the strength of the case against him and, if he has any moral centre, his own knowledge of his guilt or otherwise.
Herbert
and other cases show that the fact of such pressure will not always render a resultant plea of guilty unlawful. In our judgment the principle is that a plea of guilty following a proposal made or endorsed by the Crown will not be vulnerable on grounds of improper pressure if it is made or endorsed by the Crown only by reference to Crown counsel's judgment as to what the public interest in the prosecution taken as a whole, including the case against other defendants, demands.
12.
In the present case there is nothing to suggest that the Crown's proposal or offer was moved by anything other than a proper apprehension of the public interest. Mr Linford has very properly this morning shown us the case of
R v Najera
and referred us to a passage starting at paragraph 49. It is not necessary to look into the facts. At that paragraph Kay LJ giving the judgment of the court says think:
"The question of the pressures on one defendant when a close relative is a co-accused were considered and acknowledged by the court in Herbert. They are an inevitable part of the process unless the prosecution have 'cynically' proceeded against the relation to put pressure on the accused. It is not suggested in this case that in prosecuting the appellant's husband the prosecution were 'cynically' trying to bring pressure to bear on the appellant or that they were acting with any improper motive in not dropping the prosecution against him."
13.
While this reasoning does not in terms state the principle that we have sought to articulate, it seems to us that it is consonant with it and it; is this principle that underlies what was said in that case. The principle assumes that the defendant has been properly and carefully advised by his counsel. That was well fulfilled here. For completeness we should say that it says nothing about the kind of case where a plea is induced or apparently induced by an indication of sentence from the judge. That is addressed in other authorities which we need not cite for the purpose of the present appeal.
14.
In all these circumstances we conclude that this appellant's appeal was not improperly induced and his application to vacate it was rightly refused. It follows this appeal must be dismissed.
15.
We should add by way of postscript that a further point arose on the papers. Mr Linford reports what was said in conversations in July 2014 between Josh Pollard's father and Luke Dann and between Luke Dann and Josh Pollard himself. It is not necessary to go into these. We mention them only because there was a suggestion that they might constitute material casting doubt on the safety of the conviction. However, Mr Linford rightly accepts that in the events that happened nothing arising from those conversations can advance the case. The merits of the prosecution are closed by the appellant's proper plea of guilty. The appeal is dismissed. | {"ConvCourtName": ["Plymouth Crown Court"], "ConvictPleaDate": ["4th August 2014"], "ConvictOffence": ["conspiracy to blackmail."], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["on re-arraignment"], "RemandDecision": ["appellant was on remand at the jail."], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Plymouth Crown Court"], "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": ["data not available"], "VictimType": ["man called Josh Pollard"], "VicNum": ["man called Josh Pollard"], "VicSex": ["man called Josh Pollard"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["serving a prison sentence"], "VicHomeOffence": ["sentence in 2013 in Exeter jail."], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["pleaded guilty"], "DefEvidTypeTrial": ["admit to something that I have not done"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["two children, they were aged 2 and 4"], "VicImpactStatement": ["data not available"], "Appellant": ["appellant"], "CoDefAccNum": ["three co-defendants"], "AppealAgainst": ["conviction"], "AppealGround": ["his application to vacate the plea was refused", "appellant's plea of guilty was obtained through improper pressure"], "SentGuideWhich": ["section 18 of the Offences Against the Person Act 1861"], "AppealOutcome": ["appeal is dismissed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["appellant's appeal was not improperly induced and his application to vacate it was rightly refused"]} | {"ConvCourtName": ["Plymouth Crown Court"], "ConvictPleaDate": ["2014-08-04"], "ConvictOffence": ["conspiracy to blackmail."], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["on re-arraignment"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Plymouth Crown Court"], "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": ["Don't know"], "VictimType": ["Individual person"], "VicNum": ["1"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Other"], "VicHomeOffence": ["Temporary Accommodation"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Offender admits offence"], "DefEvidTypeTrial": ["Offender retracts plea"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["two children, they were aged 2 and 4"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["3"], "AppealAgainst": ["conviction"], "AppealGround": ["appellant's plea of guilty was obtained through improper pressure", "his application to vacate the plea was refused"], "SentGuideWhich": ["section 18 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": ["appellant's appeal was not improperly induced and his application to vacate it was rightly refused"]} | 41 |
Neutral Citation Number:
[2017] EWCA 1145 (Crim)
Case No:
201700302 A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 7 July 2017
B e f o r e
:
LORD JUSTICE HOLROYDE
HIS HONOUR JUDGE ZEIDMAN QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
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R E G I N A
v
MOHAMED IGAL
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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)
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Mr J Hasslacher
appeared on behalf of the
Appellant
The Crown did not attend and was not represented
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J U D G M E N T (Approved)
1.
MR JUSTICE HOLROYDE
: The provisions of the Sexual Offences (Amendment) Act 1992 apply to protect the victim of these offences. Accordingly, no matter relating to her shall during her lifetime be included in any publication if it is likely to lead members of the public identify her as the victim these offences. This prohibition will continue unless and until waived or lifted pursuant to the Act.
2.
On 4 November 2016 in the Crown Court at Woolwich, this appellant was convicted at the conclusion of a trial before Her Honour Judge Downing and a jury of two offences of rape of a child under 13 years of age, contrary to section 5(1) of the Sexual Offences Act 2003. The offences had been committed in 2010, when the complainant was 10 years old. She lived with her aunt and uncle on a housing estate. The appellant lived on the same estate. He befriended the complainant by talking to her as she walked to and from the local shops. After a short period of casual acquaintance, in the course of which it seems the complainant had become emotionally attached to the appellant, he took her to a quiet location on the estate and persuaded her to give him oral sex. This happened more than once (the complainants evidence was to the effect that there had been 3 such occasions in all), and included ejaculation on the complainants face. Within a short time, the appellant introduced other youths to the complainant. They too wanted oral sex from her. It seems that the offending stopped at a time of increased police presence in the area, and the complainant later moved away from the estate.
The appellant was arrested on the 15 July 2015. He denied all the allegations, and denied that he was responsible for Facebook exchanges with the complainant in which he had referred to the oral sex.
3.
On 16 December 2016, the trial judge sentenced the appellant to concurrent terms of 7 years and 9 months' imprisonment on each of the two counts and made the appropriate ancillary orders. The appellant now appeals against his total sentence by leave of the single judge. He has had the advantage of representation by trial counsel, Mr Hasslacher, for whose written and oral submissions the court is very grateful.
4.
A victim personal statement which was made available to the judge for the purposes of the sentencing hearing set out in clear terms the effect of these offences on the complainant and the consequences of the offences for her relationship with members of her family. Without going into the details of personal matters, the complainant was subsequently taken into care. She was left with a feeling that she had been abandoned at a difficult time. As a result of her experiencing these offences, she indicated that she had found it difficult to trust anyone. That had affected her relationships with others. She had been in a state of mental turmoil which had affected her exam results. She had found it understandably very difficult to report matters to the police and, having done so, she had had a most anxious wait for some 18 months or more before the matter was finally resolved at trial. She summarised the effect of the offences in these stark terms, saying that they had "destroyed my life and my family".
5.
The appellant was born on 12 September 1993 and so is now 23 years old. At the time of the offences he was aged 16, approaching his 17th birthday. He had no criminal record at that time. Subsequent to these offences, and starting in 2014, he has made a number of appearances before the courts for offences involving drugs, culminating in a 6-month custodial sentence in 2016. He has no other convictions for any sexual offences.
6.
In a pre-sentence report, the author assisted the court to the extent which was possible given that the appellant was still denying his guilt and maintaining his innocence. The author of the report did not assess him as a dangerous offender as that term is defined for sentencing purposes. The learned judge did not make any finding of dangerousness.
7.
At the sentencing hearing, submissions were made by Mr Hasslacher as to the correct application of the Sentencing Council's definitive guideline on sentencing for sexual offences. Counsel argued that the appropriate categorisation of these offences under the guidelines was category 3B. The learned judge disagreed. She concluded that it was a case of category 2 harm for two reasons: firstly, because the complainant was particularly vulnerable due to her personal circumstances; secondly, because the judge treated the offence as being a sustained incident. The learned judge then concluded that the case was one of category A culpability, again for two reasons: first, a significant degree of planning was involved; secondly, she found that grooming behaviour had been used against the complainant.
8.
For a category 2A offence in the case of an adult offender the guideline indicates a starting point of 13 years' custody and a range of 11 to 17 years' custody. For a category 3B offence by an adult offender the starting point is 8 years' custody and the range from 6 to 11 years. Thus there is, as Mr Hasslacher emphasises, a very significant difference in the guideline starting point as between the two categories, although the respective sentencing ranges do overlap to a limited degree.
9.
The judge took into account as a serious aggravating factor the evidence which showed that through the appellant the complainant had been introduced to other young men who had also taken advantage or tried to take advantage of her. She concluded that in all the circumstances the appropriate sentence for an adult offender after a trial would be 12 years' imprisonment. Having regard to the appellant's young age at the material time, she reduced that to 8 years. She made a further reduction of 3 months because the appellant had been subject to a period of detention. Thus she arrived at the total sentence of 7 years 9 months' imprisonment.
10.
Before this court, Mr Hasslacher challenges the learned judge's application of the sentencing guidelines. He submits that the total sentence was manifestly excessive. We will address briefly the criticisms which he makes of the judge's approach to the sentencing exercise, but in the end the question we must consider is whether the total sentence was manifestly excessive for the offending of which the appellant had been found guilty.
11.
As to harm, we are satisfied that the learned judge was entitled to conclude that this was a category 2 case by reason of the complainant's particular vulnerability. Mr Hasslacher argues that, whilst undoubtedly vulnerable, the complainant was not particularly vulnerable. He points out that the offence is one which can only be committed against a child aged under 13, and therefore vulnerability consequent upon youthfulness is already catered for within the guidelines. Mr Hasslacher's argument in essence is that the circumstances established by the evidence did not show any particular vulnerability going beyond that.
12.
We disagree. This is a matter of degree and one which the trial judge is in the best position to assess. The evidence showed that the complainant was only 10 years old at the time, although it is said she looked older than her chronological age; for various family reasons she was largely isolated; she knew very few people on the estate where she lived; and, it seems, unhappily, that she was not being as well protected as she should have been by the aunt with whom she was living. Evidence showed, for example, that when the appellant, who must have struck the aunt as obviously much older than the complainant, visited the complainant's flat, the aunt appears to have been complacent about treating him as her niece's boyfriend.
13.
It seems to us that in all the circumstances, including in particular his introduction of other youths to the girl, that the appellant must quickly have realised that this complainant's family and personal situation was not one in which there would be any effective constraint upon her or upon him in persuading her to allow him to engage in sexual activity.
14.
All that said, and the offence for that reason properly being categorised as category 2 harm, we must respectfully disagree with the learned judge's view that it was also a category 2 case because it was a sustained incident. It seems that the learned judge was using that term, at least in part, to reflect the fact that more than one offence had been committed. That is a distinct point. We agree with counsel that the circumstances of the individual offences did not show that any one of them was particularly protracted or prolonged. In the end, however, that is not a point which assists the appellant so far as the judge's decision that this was a category 2 offence is concerned.
15.
As to culpability, the learned judge again had to determine a question of degree, namely whether there was here a significant degree of planning. Mr Hasslacher submits there was not. He argues that, whilst there may have been some planning, it could not be categorised as significant so as to make it a case of higher culpability. In our judgment, however, the learned judge was again entitled to make the decision she did. Whether or not the complainant looked rather older than her true age, the evidence does seem to us to show very clearly that the appellant quickly realised that she was responsive to his show of interest in her and he was able to take her to a secluded place where he could persuade her to engage on more than one occasion in oral sex with him. That being our decision in that regard, we do not think any purpose is to be served by a debate about the second ground on which the judge found higher culpability, namely grooming. Suffice to say that, in the context of this case, the interpretation which the learned judge placed on that word seems to us to have added nothing to the element of planning which she was entitled to find.
16.
Thus the judge was entitled, in our view, to categorise the case as she did for the purposes of the sentencing guideline. Having done so, she determined that the appropriate sentence for an adult offender would have been 12 years' imprisonment. That was towards the bottom of the category 2A range. It was in fact within the category 2B range, and only 1 year above the category 3B range for which Mr Hasslacher contends. Bearing in mind the serious aggravating feature rightly identified by the judge of introducing other young men to the complainant, and bearing in mind that the appellant was guilty of more than one offence, we think that no possible criticism can be made of the judge's decision that 12 years would have been the appropriate sentence for an adult. Indeed, it may be said that a rather longer sentence for an adult could not have been the subject of any successful complaint.
17.
We come finally to the point which merits particularly careful consideration and to which the single judge drew attention when granting leave to appeal, namely the extent to which the appropriate sentence for an adult fell to be reduced by reason of the appellant's age at the time of the offences. It is of course always necessary in the case of a young offender to consider his maturity as well as his chronological age, and when a custodial sentence is found to be unavoidable it is usual for the length of the sentence to be significantly shorter than would be appropriate for an adult. Although the position is now different under the guideline published by the Sentencing Council which has very recently come into force, the former guidance of the Sentencing Guidelines Council, which was current at the time of this appellant's sentencing, suggested that it may be appropriate, depending on maturity, to consider a starting point of between half and three-quarters of what would have been considered appropriate for an adult offender when sentencing an offender aged 15 to 17.
18.
In the context of a case such as this, in which the age of the complainant is an ingredient of the offence, it must also be borne in mind, as Mr Hasslacher rightly emphasises and as the judge rightly recognised, that a young offender is not only young, he is also comparatively close in age to his victim. In those two ways, therefore, his position is significantly different from that of an adult offender.
19.
We have considered this point with care. Our conclusion is that the learned judge made a reduction from the notional adult sentence which was in accordance with the guideline. Had there been but a single offence it might have been appropriate to make a rather greater reduction. But, as we have said, the judge here was passing concurrent sentences to reflect more than one offence of oral rape.
20.
For those reasons, we conclude that this sentence, although a difficult one for a young man to have to serve, cannot be said to have been manifestly excessive. We are grateful to Mr Hasslacher for his assistance, but we are unable to accept his submissions. The appeal accordingly fails and is dismissed. | {"ConvCourtName": ["Crown Court at Woolwich"], "ConvictPleaDate": ["4 November 2016"], "ConvictOffence": ["rape of a child under 13 years of age"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["was still denying his guilt and maintaining his innocence"], "PleaPoint": ["data not available"], "RemandDecision": ["period of detention"], "RemandCustodyTime": ["period of detention"], "SentCourtName": ["Crown Court at Woolwich"], "Sentence": ["7 years and 9 months' imprisonment"], "SentServe": ["concurrent"], "WhatAncillary": ["appropriate ancillary orders"], "OffSex": ["He"], "OffAgeOffence": ["16"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["The appellant lived on the same estate. He befriended the complainant by talking to her as she walked to and from the local shops.", "acquaintance"], "VictimType": ["when the complainant was 10 years old."], "VicNum": ["when the complainant was 10 years old"], "VicSex": ["her"], "VicAgeOffence": ["10 years old"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["She lived with her aunt and uncle on a housing estate."], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["data not available"], "DefEvidTypeTrial": ["He denied all the allegations"], "PreSentReport": ["The learned judge did not make any finding of dangerousness."], "AggFactSent": ["significant degree of planning was involved", "10 years old", "This happened more than once", "a sustained incident", "As a result of her experiencing these offences, she indicated that she had found it difficult to trust anyone.", "destroyed my life and my family", "grooming behaviour had been used", "complainant was particularly vulnerable due to her personal circumstances", "number of appearances before the courts for offences involving drugs", "child under 13 years of age", "ppellant introduced other youths to the complainant"], "MitFactSent": ["He has no other convictions for any sexual offences", "no criminal record at that time", "16"], "VicImpactStatement": ["victim personal statement"], "Appellant": ["this appellant was convicted"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeals against his total sentence"], "AppealGround": ["manifestly excessive", "7.\n \n At the sentencing hearing, submissions were made by Mr Hasslacher as to the correct application of the Sentencing Council's definitive guideline on sentencing for sexual offences. Counsel argued that the appropriate categorisation of these offences under the guidelines was category 3B."], "SentGuideWhich": ["guideline on sentencing for sexual offences", "section 5(1) of the Sexual Offences Act 2003"], "AppealOutcome": ["The appeal accordingly fails and is dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["manifestly excessive"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we must respectfully disagree with the learned judge's view that it was also a category 2 case because it was a sustained incident.", "We have considered this point with care. Our conclusion is that the learned judge made a reduction from the notional adult sentence which was in accordance with the guideline. Had there been but a single offence it might have been appropriate to make a rather greater reduction. But, as we have said, the judge here was passing concurrent sentences to reflect more than one offence of oral rape."]} | {"ConvCourtName": ["Crown Court At Woolwich"], "ConvictPleaDate": ["2016-11-04"], "ConvictOffence": ["rape of a child under 13 years of age"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["3 months"], "SentCourtName": ["Crown Court At Woolwich"], "Sentence": ["7 years and 9 months' imprisonment"], "SentServe": ["Concurrent"], "WhatAncillary": ["Yes, but don't know what \"appropriate ancillary orders\""], "OffSex": ["All Male"], "OffAgeOffence": ["16"], "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 Female"], "VicAgeOffence": ["10"], "VicJobOffence": ["Child"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["data not available"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["grooming behaviour had been used", "significant degree of planning was involved", "a sustained incident", "complainant was particularly vulnerable due to her personal circumstances", "number of appearances before the courts for offences involving drugs", "destroyed my life and my family", "As a result of her experiencing these offences, she indicated that she had found it difficult to trust anyone.", "ppellant introduced other youths to the complainant", "repeated offence", "vulnerable victim", "child under 13 years of age"], "MitFactSent": ["young offender", "He has no other convictions for any sexual offences", "no criminal record at that time"], "VicImpactStatement": ["Yes"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeals against his total sentence"], "AppealGround": ["manifestly excessive", "sentence was excessive"], "SentGuideWhich": ["guideline on sentencing for sexual offences", "section 5(1) of the Sexual Offences Act 2003"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["manifestly excessive"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["We have considered this point with care. Our conclusion is that the learned judge made a reduction from the notional adult sentence which was in accordance with the guideline. Had there been but a single offence it might have been appropriate to make a rather greater reduction. But, as we have said, the judge here was passing concurrent sentences to reflect more than one offence of oral rape.", "we must respectfully disagree with the learned judge's view that it was also a category 2 case because it was a sustained incident."]} | 573 |
Neutral Citation Number:
[2016] EWCA Crim 572
Case No:
201601023 A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justic6
Strand
London, WC2A 2LL
Date:
Thursday, 7th April 2016
B e f o r e
:
VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
LADY JUSTICE HALLETT DBE
MR JUSTICE SAUNDERS
MR JUSTICE SOOLE
- - - - - - - - - - - - - - - - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 32 OF 2016
- - - - - - - - - - - - - - - - - - - - -
Computer-Aided Transcript of the Stenograph notes of
WordWave International Ltd trading as DTI
8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr P Jarvis
appeared on behalf of the
Attorney General
Mr J Lamb
appeared on behalf of the
Offender
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T (As approved by the Court)
THE VICE PRESIDENT:
Background
1.
This reference raises yet again the vexed question of the appropriate level of sentence for sexual offences on children committed many years ago by an offender who was himself a child at the time.
2.
On 22nd January 2016, after a contested trial, the offender was convicted of two counts of indecent assault on a male person, one of whom we shall call "X" and the other we shall call "Y". The offence on X was committed between April 1979 and April 1981 and the offence on Y between March 1982 and January 1987. Both offences were contrary to section 15(1) of the Sexual Offences Act 1956. The parties at trial agreed, and informed the trial judge, that in the light of the likely dates of the commission of the offences, the offences attracted a maximum penalty of five years' imprisonment. The parties now agree the maximum penalty for both offences was ten years' imprisonment.
3.
On 5th February 2016 His Honour Judge Rennie, the trial judge, having received notes on sentencing from the advocates, a number of testimonials for the offender and personal impact statements from the complainants, sentenced the offender to a term of imprisonment of two years on each count suspended for two years. The sentences were ordered to run concurrently. Her Majesty's Solicitor General, represented by Mr Jarvis, has sought the leave of the court to refer the sentences to us on the basis they are unduly lenient.
4.
The facts are, in summary, that the offender and his parents lived close to X and his family in Sussex. The families were good friends and X was also friends with a boy called Y; they sometimes played together in a nearby Wendy House. X claimed that the offender, who was a number of years older than X, sexually assaulted him twice. However, the offender was only convicted of the one offence, and it is to that offence we now turn.
5.
In 1979/1980 X said he was visiting the offender's home and he asked to go upstairs with the offender to see his pet gerbils. X sat on the corner of the bed with the offender standing in front of him. The offender took down his pants and his trousers, exposing his penis. The offender said, "It's all right to touch it if you like". At this, X grabbed the offender's penis. The offender then said, "It's all right to kiss it", so X did. The offender then put his penis into X's mouth and held his head. X said he was frightened and tried to struggle. He felt something go into his mouth and thought that the offender had urinated. The offender pulled down X's shorts and pants so his genitals were exposed.
6.
Fortunately, X's mother was outside. She shouted for him to come home. The offender held X up to the window in a way that X's mother could not see he was naked from the waist down and told X, "Tell her you'll be back in a few minutes or I'll drop you". X told his mother to go home and he would be back soon. He was too frightened to say anything else. The judge sentenced on the basis that the evidence indicated the victim was three and the offender eleven at the time of this offence.
7.
Y described an occasion when he felt pressure from the offender and X to go into the Wendy House with the offender. X said, "I've been in the Wendy House. Why don't you go in? It's cool". Y went in but X stayed outside. Once inside, Y's trousers were taken down and the offender played with Y's penis before placing it into his, the offender's, mouth. According to Y, it felt ‘weird’. Afterwards he did not tell anyone what had happened because he was too ashamed. He never went into the Wendy House again. The judge sentenced on the basis that the evidence revealed that the offender was fourteen at the time of the offence and Y was five.
8.
X and Y remained friends but drifted apart as teenagers. Some years later X told his mother what had happened to him namely that the offender had had oral sex and threatened to throw him out of a window. He also told her that "things had gone on" in the Wendy House.
9.
In 2006, Y became involved with the Landmark Forum, which helps people cope with trauma from their past. He decided to meet with X so they could talk about their experiences as children. Their accounts differ of what was said at that meeting, but there was no report to the police.
10.
In 2007, X saw the offender speaking to a group of teenage boys. This made his angry and he decided to report what had happened. He made a witness statement to the police. For reasons that are not clear, that did not lead to the offender's arrest or prosecution.
11.
It was not until 2013 that Y decided to report the offender to the police. The offender was interviewed and he denied any sexual abuse, and he continues to do so.
12.
At the time of sentencing, the offender had no criminal convictions on his record; he had just one caution for an offence of common assault committed in 2004.
13.
In his victim personal statement of January 2016, X wrote that as a result of the offence he started to self-harm from the age of thirteen and he suffered flashbacks to what the offender had done. This caused him to experience sleeplessness, a lack of concentration and his studies suffered. He became suicidal and had to be treated in hospital and in the community for mental health problems. He continues to receive counselling. He also said that he was unable to maintain relationships. X feels that the offender's actions have "ruined" him.
14.
In his victim personal statement, dated 28th January 2016, Y states that the offence did not impact on his life as he grew up, it was only after he received counselling that he decided he wanted to press charges against the offender. Looking back, he believes that the offence may have made him distrustful of people, but otherwise makes no comment as to any long-term consequences.
Discussion
15.
Mr Jarvis submitted there were a number of aggravating factors to the offences:
1.
the grooming of X on a previous occasion
2.
ejaculation in respect of the offence on X;
3.
the location of the offence in respect of the offence on Y;
4.
the presence of another child, in respect of the offence on Y;
5.
steps taken to prevent X reporting an incident;
6.
the use of X to recruit Y.
16.
During the course of submissions this morning, we pressed Mr Jarvis on whether all these factors were a. proved and b. could all be described as aggravating features. No finding of fact was recorded in respect of the grooming incident, there was no evidence X was present when Y was assaulted and X did not accept he was used to recruit Y. Further, we failed to see the significance of the location of the offences as an aggravating feature.
17.
The following mitigating factors appeared to HM Solicitor General to be present: the offender has no relevant previous convictions, the age and lack of maturity of the offender at the time of the commission of the offences, and the age of the allegations.
18.
Balancing all those factors, Mr Jarvis criticised the overall length of the sentence and the judge's decision to suspend it. It was his contention that the sentences should have been ordered to run consecutively, and not concurrently, to reflect the fact that they were committed against different victims and at different times, some years apart. Alternatively, if the sentences were properly ordered to run concurrently, he submitted the sentence for the offence on X should have been longer given its nature and seriousness and because it was aggravated by the offence on Y.
19.
Finally, if those arguments failed, Mr Jarvis’ fall back submission was that the sentence should not have been suspended. The judge explained his rationale for suspension in this way:
"... I'm also persuaded that because of the passage of time, your age at the time, your good character and all that I have heard, the just sentence to pass is a suspended sentence."
No-one reminded the judge, as Mr Jarvis reminded us, that where offences were committed before 4th April 2005, the power to suspend a term of imprisonment was governed by the Powers of Criminal Courts (Sentencing) Act 2000 and not the Criminal Justice Act 2003, as the judge may have believed. Section 118(4) of the PCC(S)A 2000 states that a sentence of imprisonment can only be suspended where there are exceptional circumstances to justify such a course. Placing reliance on
Attorney General's Reference No 61 of 2014
[2015] Cr App R (S) 25, Mr Jarvis submitted that the passage of time is not
per se
an exceptional circumstance. Further, he maintained that the offender's age at the time the offences were committed and his good character were not sufficient, in isolation or cumulatively, to amount to exceptional circumstances so as to justify suspension of the sentence.
20.
Mr Jarvis took us to the various sentencing guidelines of potential relevance namely: the Sexual Offences Definitive Guideline of 2014, the Overarching Principles - Sentencing Youths Guideline and the Offences Taken Into Consideration and Totality Definitive Guidelines.
21.
Having regard to Annex B of the Sexual Offences Definitive Guideline, Mr Jarvis argues that the modern equivalent of the offence on X is rape of a child under the age of 13, contrary to section 5 of the Sexual Offences Act 2003 with a maximum sentence of life imprisonment. He invited the court to place the offence into category 2: X was particularly vulnerable due to his extreme youth and he has suffered severe psychological harm. Further, he suggested that this is culpability A because of the deliberate isolation of X from his mother and or because of the element of grooming. If that categorisation is correct, the starting point for an adult offender after a trial would be one of 13 years' imprisonment, with a range of 11 to 17 years (all beyond the actual maximum for this offence).
22.
However, Mr Jarvis fully and fairly acknowledged that one must bear very much in mind the overarching principles in sentencing youths. Many of those principles (such as considerations of the welfare of the child) will not be relevant because the court is sentencing an adult not a youth; but age and maturity at the time of the offence are relevant to the issue of culpability. At page 24 of the guideline the Sentencing Guidelines Council states:
"where the offender is aged 15, 16 or 17, the court will need to consider the maturity of the offender as well as chronological age. Where there is no offence specific guideline, it may be appropriate, depending on maturity, to consider a starting point from half to three quarters of that which would have been identified for an adult offender ...
where the offender is aged 14 or less ... the length of a custodial sentence will normally be shorter than for an offender aged 15–17 convicted of the same offence."
23.
In relation to the offence committed against X, Mr Jarvis contended that an 18 year old committing such an offence today could expect the sentencing court to take a starting point of term of 13 years' detention and that this gives an indication of just how serious Parliament, and therefore the courts, view offending of this type. If one then factored in the mitigation available to the offender and applied a reduction of 75 per cent, he maintained the sentence should have been at least three years for offending of this gravity.
24.
As far as the offence against Y is concerned, the modern equivalent, is said to be sexual assault of a child under 13 contrary to section 7, which carries a maximum sentence of 14 years. Mr Jarvis placed the level of harm into category 2 because the offender touched Y's naked genitalia and the level of culpability at A because he deliberately isolated him by coaxing him into the Wendy House. This would mean a starting point for an adult offender after trial of four years' imprisonment, with a range of three to seven years. Given the offender's age at the time of the offence, namely 14, there would be a further substantial discount to be afforded to him. On that basis Mr Jarvis accepted that a sentence of two years custody could not be described as unduly lenient in itself. It is the combination of the two offences and the overall level of offending that he claims have not be properly reflected in the sentence passed.
Conclusion
25.
All parties acknowledge that this was an extraordinarily difficult sentencing exercise for the judge. Sentencing for offences committed decades ago is never easy, let alone when the offender was a child at the time. It is therefore worth reminding oneself of the guidance provided by the court and Lord Judge CJ in
R v Hall and others
[2012] 1 WLR 1416
, [2012] 2 Cr App R (S) 21, in which the court conducted a comprehensive review of all the relevant sentencing principles governing historic offences. Lord Judge stated at paragraph 46:
"In the search for principle it is impossible to reconcile them all. We suggest that with the exception of
Millberry and Others
, and the definitive sentencing guideline (used in the measured way we shall suggest) that the following considerations should be treated as guidance. We further suggest that reference to earlier decisions is unlikely to be helpful, and, again dealing with it generally, to be discouraged. Subsequent decisions of this court which do not expressly state that they are intended to amend or amplify this guidance should also be treated as fact specific decisions, and therefore unlikely to be of assistance to [the] court."
26.
We are unaware of any subsequent decisions in which the court has expressly stated that it intended to amend or amplify the guidance provided and accordingly,
H
remains the leading authority. The guidance is to be found at paragraph 47:
1.
“Sentence will be imposed at the date of the sentencing hearing, on the basis of the legislative provisions then current, and by measured reference to any definitive sentencing guidelines relevant to the situation revealed by the established facts.
2.
Although sentence must be limited to the maximum sentence at the date when the offence was committed, it is wholly unrealistic to attempt an assessment of sentence by seeking to identify in 2011 what the sentence for the individual offence was likely to have been if the offence had come to light at or shortly after the date when it was committed. Similarly, if maximum sentences have been reduced, as in some instances, for example theft, they have, the more severe attitude to the offence in earlier years, even if it could be established, should not apply.
3.
As always, the particular circumstances in which the offence was committed and its seriousness must be the main focus. Due allowance for the passage of time may be appropriate. The date may have a considerable bearing on the offender's culpability. If, for example, the offender was very young and immature at the time when the case was committed, that remains a continuing feature of the sentencing decision. Similarly if the allegations had come to light many years earlier, and when confronted with them, the defendant had admitted them, but for whatever reason, the complaint had not been drawn to the attention of, or investigated by, the police, or had been investigated and not then pursued to trial, these too would be relevant features.
27.
In some cases it may be safe to assume that the fact that, notwithstanding the passage of years, the victim has chosen spontaneously to report what happened to him or her in his or her childhood or younger years would be an indication of continuing inner turmoil. However the circumstances in which the facts come to light varies, and careful judgment of the harm done to the victim is always a critical feature of the sentencing decision. Simultaneously, equal care needs to be taken to assess the true extent of the defendant's criminality by reference to what he actually did and the circumstances in which he did it.
28.
The passing of the years may demonstrate aggravating features if, for example, the defendant has continued to commit sexual crime or he represents a continuing risk to the public. On the other hand, mitigation may be found in an unblemished life over the years since the offences were committed, particularly if accompanied by evidence of positive good character.
29.
Early admissions and a guilty plea are of particular importance in historic cases. Just because they relate to facts which are long passed, the defendant will inevitably be tempted to lie his way out of the allegations. It is greatly to his credit if he makes early admissions. Even more powerful mitigation is available to the offender who out of a sense of guilt and remorse reports himself to the authorities. Considerations like these provide the victim with vindication, often a feature of great importance to them.”
30.
We apply those principles to the present application, noting as we do the reference to using the current Definitive Guideline on Sexual Offences in a “measured” fashion and the prohibition on conducting the "wholly unrealistic exercise" of attempting to assess what the sentence would have been, had the offence come to light shortly after it was committed.
31.
Our focus must be on the seriousness of the offences, the harm caused and on the offender's culpability. We note that, not only was the judge misled as to the maximum sentence available, no one invited the judge to make findings as to whether the grooming incident occurred in respect of X, whether X was present at the assault of Y (the evidence suggests he was not) and whether X was used to recruit Y. Given their potential significance, it would be wrong to allow such factors to play a part in the categorisation of the offence or as an aggravating feature, absent a sound evidential basis. In any event, we have our doubts as to whether it is apt to describe what may have occurred between an eleven year boy and a three year old boy as ‘grooming’ and to describe the offender as having ‘deliberately isolated’ the victims. The evidence suggests an eleven year old boy and then a fourteen year old boy taking advantage of opportunities that presented themselves when playing with younger boys, rather than any act of grooming or deliberate isolation of the kind the Sentencing Council had in mind. As we have already observed, the location of the offences seems to us to be irrelevant. We accept the other aggravating factors were present, albeit in the context of offending by a young boy.
32.
On that basis, using the current guideline, the correct category for the offences on X and on Y would be 2 B and the categorisation itself takes account of most of the aggravating features. Had these offences been committed by an adult today, the guideline indicates the overall sentence would be lengthy.
33.
For the offence on X, category 2B has a starting point of ten years and a range of eight to thirteen years (beyond the maximum available for the offence committed). However, the offender was very young and immature at the time he assaulted the two complainants. Any sentence would therefore have to be reduced very significantly to reflect the much lower level of culpability of an eleven year old (arguably by more than 75%) and to reflect the substantial mitigation available. On that basis we do not accept that the figure of 2 years determined by the judge was outside the appropriate range.
34.
We turn to the length of the sentence for the offence on Y. Having placed the offence on Y in category 2B, the starting point for a section 7 offence is two years with a range of one to four years. There are no particular aggravating features present and much mitigation. Further there must be a substantial reduction to reflect the offender’s lower level of culpability as a fourteen year old. Had the judge ordered the sentences to be served consecutively, as would be the normal practice where there is more than one victim, he may well have reduced the sentence for the offence on Y still further to reflect the principle of totality.
35.
On that basis, one might well reach a total sentence for the offences on X and Y at, or a little above, the level of sentence that can in law be suspended.
36.
Finally, we address the question of suspension. Firstly, it is unfortunate that the judge was not informed of the relevant statutory provision. He should have been. Secondly and, in any event, we reject the argument that the judge would not have been entitled to suspend the sentence on the basis of exceptional circumstances. The court, in
Attorney General's Reference No 61 of 2014
, did not, in our view, intend to lay down any general principle that the passage of time can never amount to an exceptional circumstance. The judgment makes clear that the facts of that case were unusual. The offender had committed a further sexual offence as an adult, and the overall circumstances were not so exceptional as to justify suspension.
37.
If, as the judgment in
H
makes clear, the passage of time since an offence, the age of an offender at the time he committed an offence, and the fact an offender has not been convicted of any offence since the offending, are all factors to be considered when assessing sentence generally, we see no good reason why they may not be relevant to the question of suspension. It will be for the sentencing judge to make a judgment on all the facts before him or her. We have not rehearsed the detail of the mitigation available to the offender but it was considerable.
38.
There is no principle of sentencing that all offences of this kind must be met by immediate terms of imprisonment, whatever the circumstances. As the Definitive Guideline makes clear, as serious as these offences were, there may be exceptional cases where a non-custodial sentence is appropriate. It is clear to us from the transcript of the sentencing hearing that the judge was acutely conscious of the seriousness of the offences, the impact of the offences on the victims and the relevant guidelines. He did not take the decision to suspend the sentence lightly. He took a measured and balanced approach with which we do not intend to interfere.
39.
We should like to express our hope that the complainants, both of whom have had to struggle to come to terms with their abuse, will find some form of closure in the fact that these proceedings are now at an end and that their abuser has been brought to justice in public, albeit he may not have received the severe kind of punishment that some may have wished upon him.
40.
We refuse leave. | {"ConvCourtName": ["data not available"], "ConvictPleaDate": ["22nd January 2016,"], "ConvictOffence": ["indecent assault"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["denied any sexual abuse, and he continues to do so"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["data not available"], "Sentence": ["two years on each count suspended for two years"], "SentServe": ["concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["data not available"], "OffAgeOffence": ["fourteen", "eleven"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["offender and his parents lived close"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["The families were good friends and X was also friends with a boy called Y;"], "VictimType": ["male person, one of whom we shall call \"X\" and the other we shall call \"Y\""], "VicNum": ["one of whom we shall call \"X\" and the other we shall call \"Y\""], "VicSex": ["male person"], "VicAgeOffence": ["three", "five"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["offender and his parents lived close to X and his family in Sussex."], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["witness statement to the police", "X claimed that the offender", "Y decided to report the offender to the police"], "DefEvidTypeTrial": ["denied any sexual abuse, and he continues to do so"], "PreSentReport": ["data not available"], "AggFactSent": ["the location of the offence in respect of the offence on Y;", "steps taken to prevent X reporting an incident", "became suicidal and had to be treated in hospital and in the community for mental health problems", "the grooming of X on a previous occasion", "\"Tell her you'll be back in a few minutes or I'll drop you\"", "ejaculation in respect of the offence on X;", "result of the offence he started to self-harm from the age of thirteen and he suffered flashbacks to what the offender had done", "three", "the use of X to recruit Y.", "the presence of another child", "sexual offences on children committed"], "MitFactSent": ["the age and lack of maturity of the offender at the time of the commission of the offences, and the age of the allegations.", "no criminal convictions on his record"], "VicImpactStatement": ["victim personal statement", "personal impact statements from the complainants"], "Appellant": ["Solicitor General"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["The parties at trial agreed, and informed the trial judge, that in the light of the likely dates of the commission of the offences, the offences attracted a maximum penalty of five years' imprisonment. The parties now agree the maximum penalty for both offences was ten years' imprisonment."], "AppealGround": ["unduly lenient.", "The parties at trial agreed, and informed the trial judge, that in the light of the likely dates of the commission of the offences, the offences attracted a maximum penalty of five years' imprisonment. The parties now agree the maximum penalty for both offences was ten years' imprisonment."], "SentGuideWhich": ["Sexual Offences Definitive Guideline of 2014, the Overarching Principles - Sentencing Youths Guideline and the Offences Taken Into Consideration and Totality Definitive Guidelines.", "Section 118(4) of the PCC(S)A 2000", "Sentencing Guidelines Council"], "AppealOutcome": ["We refuse leave"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we do not accept that the figure of 2 years determined by the judge was outside the appropriate range."]} | {"ConvCourtName": ["data not available"], "ConvictPleaDate": ["2016-01-22"], "ConvictOffence": ["indecent assault"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["data not available"], "Sentence": ["two years on each count suspended for two years"], "SentServe": ["Concurrently"], "WhatAncillary": ["Don't know"], "OffSex": ["data not available"], "OffAgeOffence": ["14", "11"], "OffJobOffence": ["Child"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individuals"], "VicNum": ["2"], "VicSex": ["All Male"], "VicAgeOffence": ["5", "3"], "VicJobOffence": ["Child"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Y decided to report the offender to the police", "witness statement to the police", "victim testimony"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["the use of X to recruit Y.", "steps taken to prevent X reporting an incident", "the presence of another child", "isolated location", "ejaculation in respect of the offence on X;", "the grooming of X on a previous occasion", "became suicidal and had to be treated in hospital and in the community for mental health problems", "result of the offence he started to self-harm from the age of thirteen and he suffered flashbacks to what the offender had done", "vulnerable victim", "threatened victim", "sexual offences on children committed"], "MitFactSent": ["the age and lack of maturity of the offender at the time of the commission of the offences, and the age of the allegations.", "no criminal convictions on his record"], "VicImpactStatement": ["Yes", "Yes"], "Appellant": ["Attorney General"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeal against sentence"], "AppealGround": ["sentence is unduly lenient", "sentence too lenient"], "SentGuideWhich": ["Sentencing Guidelines Council", "Sexual Offences Definitive Guideline of 2014, the Overarching Principles - Sentencing Youths Guideline and the Offences Taken Into Consideration and Totality Definitive Guidelines.", "Section 118(4) of the PCC(S)A 2000"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["Offence difficult to sentence as it happened in the past when offender was a child"], "ReasonDismiss": ["we do not accept that the figure of 2 years determined by the judge was outside the appropriate range."]} | 538 |
No:
200304411/A6
Neutral Citation Number:
[2004] EWCA Crim 3014
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Tuesday, 12th October 2004
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE RICHARDS
MR JUSTICE BEAN
- - - - - - -
R E G I N A
-v-
JOHN (AKA JOHN DENNIS) LOMEY (AKA ANDREWS)
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR J DEIN QC & MR J MANN
appeared on behalf of the APPELLANT
SIR J NUTTING QC
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
THE VICE PRESIDENT: On 8th May 1984 at the Central Criminal Court, this appellant pleaded guilty to a number of offences and on 13th June 1984 he was sentenced by His Honour Judge Underhill QC in the following way: on count 4, causing grievous bodily harm with intent, life imprisonment; on counts 1, 3 and 5, which were of aggravated burglary, 18 months' imprisonment concurrently to each other and concurrently to the life sentence; on counts 2 and 6, assault occasioning actual bodily harm, 2 years' imprisonment concurrently and concurrently to the life sentence; on count 7, for damaging property, 6 months' imprisonment concurrently; and for breach of a suspended sentence, imposed in relation to two offences of criminal damage, 18 months' imprisonment on each concurrently to all the other sentences. The total sentence was therefore one of life imprisonment.
2.
On 23rd September 1984 an application for leave to appeal against that sentence was refused by the Single Judge. On 11th December 1984 the Full Court refused a renewed application for leave to appeal against sentence.
3.
He now appeals to this Court, on a Reference made by the Criminal Cases Review Commission under
section 9
of the
Criminal Appeal Act 1995
, on the basis that there is a real possibility that this Court might conclude that the imposition of a life sentence should now be considered to have been inappropriate and that the appropriate disposal should have been an order under
sections 37
and 41 of the
Mental Health Act 1983
. The course which Mr Dein QC, on behalf of the appellant, invites us to follow as the preferred alternative is that we should grant an absolute discharge in relation to the offences and, if not that, then the Court should make an order under the Mental Health Act.
4.
Before addressing those two possibilities it is necessary to rehearse, briefly, the circumstances of the offences and the history of the appellant since he was sentenced. The appellant and his wife were married in 1955. They had three children, one of whom, sadly, was mentally handicapped. The marriage came under strain and by 1978 the wife had obtained a judicial separation and court orders preventing the appellant from re-entering the family home. In 1982 the appellant was convicted of gaining access to the property and causing criminal damage. In early 1983 the wife was granted a Family Protection Order. In June 1983, while the wife was away on holiday, the appellant broke a window at her flat, entered and broke furniture. It was by reason of this that the suspended sentence of imprisonment for 18 months, to which earlier we referred, was imposed on 18th November 1983, for criminal damage. Five days after that sentence had been suspended, that is to say on 23rd November 1983, the appellant, who was carrying a spade, entered a flat next door to his wife's flat. With the spade he assaulted the occupier of the flat. That gave rise to counts 1 and 2 of aggravated burglary and assault occasioning actual bodily harm. The appellant then went to his wife's flat and smashed a bedroom window to gain entry. He assaulted his wife with the spade, causing lacerations to her head and fractures to her fingers. That gave rise to counts 3 and 4 of aggravated burglary and causing grievous bodily harm with intent.
5.
The appellant then went to the flat of his daughter, Kim, who we understand is in Court today supporting the appellant. She summoned assistance but, before assistance arrived, the appellant assaulted her with the spade, injuring her ankle and causing damage to property. That gave rise to count of aggravated burglary, count 6 of assault occasioning actual bodily harm and count 7 of damaging property.
6.
The appellant was arrested. In interview he said that he had behaved as he did because his family were telling the police about his activities and he complained that his neighbours were racist. He made a statement under caution in which he said he had intended to poke out a neighbour's eyes with a toothbrush but, when he found he had no tooth brush, he decided to kill his wife's neighbour and his mother. When that had failed he had gone to his wife's, whom he had given two whacks with the shovel. He thought she was dead. He had decided to do the same to his daughter, Kim.
7.
The learned sentencing judge referred to the appellant's long record of violent and dishonest offences. The reports before the Court - and it is accepted by Mr Dein today that this was an accurate summary by the judge of the position in relation to the reports before him - did not permit him to make a hospital order. The appellant, the judge said, had a personality disorder of severe degree, made worse by resort to alcohol in times of stress. The judge spoke of the statement under caution making alarming reading and said that the appellant's family and the community needed protection from him. The sentence of life imprisonment which he felt obliged to pass would ensure that he was kept confined while he remained a danger to others. He could be released when that was not the situation. As will emerge that is what has happened.
8.
The appellant was born in October 1935 and he is therefore only a few days short of his 69th birthday. He has a considerable number of convictions, since 1955, mostly offences against property, though including a considerable number of offences of violence and a conviction for manslaughter in 1970, when he was sentenced to 3 years' imprisonment.
9.
It emerged, within a comparatively short time of the sentencing process, that the appellant suffered from paranoid schizophrenia which responded to medication. After the matter had been considered by the Full Court, when they had refused the renewed application for leave to appeal against sentence in December 1984, a report was obtained which referred to the appellant's psychotic symptoms, ameliorated by medication and saying that the appellant had for many years suffered from a paranoid psychotic disorder. In May 1985, by reason of the medical reports then available, the Secretary of State exercised his powers of transfer in relation to the appellant and he was transferred from prison to Park Lane Mental Hospital. For the 19 years since then he has not been in prison. In a moment we shall come to what, more recently, has been his position.
10.
There was a report from the Mental Health Tribunal, in September 1993, referring to the appellant's tariff date as being November 1991, his mental illness as then being well controlled by medication and recommending that his discharge should proceed in a gradual manner. There was a further psychiatric report, in May 1999, saying that his schizophrenia had been in remission for years and was no longer of a nature or degree to render him liable to detention under the Mental Health Act. There was a report, in January 1999, from the Mental Health Tribunal saying that he now posed little risk to others. His mental illness had been controlled for many years and he was fit to be conditionally discharged.
11.
There were reports by Dr Duffield which formed the basis of the Criminal Cases Review Commission's Reference, referring to the transfer to hospital within less than a year of the sentence to life imprisonment being imposed. There is substantial evidence that he suffered from his mental illness at the time of the offences and at the time when he was sentenced to life imprisonment, and that he would have met the criteria for orders under
sections 37
and 41 of the Mental Health Act.
12.
A further psychiatrist's report, in February 2000, referred to the appellant's good insight into his illness, his need to continue taking medication and to refrain from taking inappropriate drugs and alcohol, and saying that there was a low risk of future dangerous behaviour. He is presently the subject of 24 hour nursed care with close supervision in conditions at St Martin's Taurs House into which he was released on 8th September 2000. He was released there by reason of a decision of the Parole Board's Lifer Panel and he was released there on life licence. He has been at liberty ever since, under the supervision of the probation service and the care of Dr Duffield.
13.
The basis of the Reference to this Court is that this Court might now make the orders which it is said would have been appropriate when the appellant was sentenced to life imprisonment had the court then had the material now available, that is to say, an order under
section 37
of the
Mental Health Act 1983
, with a restriction order under
section 41
of
that Act
. The difficulty with that course, as was pointed out to Mr Dein during the course of his realistic submissions to this Court, is that, although by virtue of
section 11(3)
of the
Criminal Appeal Act 1968
, on which Mr Dein relied, this Court does have power to pass such sentence or make such order as is appropriate and as the court below had power to pass, the nature of this Court's powers under the Mental Health Act are statutorily circumscribed. In particular, there are two preconditions for the order which is sought under
that Act
which are simply not fulfilled. First, there is no bed available for Mr Lomey, and secondly, of more significance, he does not suffer, now, from a mental disorder of a nature or degree which makes it appropriate for him to be detained in hospital. On the contrary, it is common ground that he does not require such treatment and he does not require such detention. Accordingly, however sympathetic the Court may be to the position of Mr Lomey, it seems to us that we simply do not have the power to make orders under the Mental Health Act of the kind which Mr Dein invites us to make.
14.
The preferred alternative advanced before us by Mr Dein, (although, as is apparent from what we have said, this was not contemplated on the Reference), is that we should impose an absolute discharge on the appellant in relation to these serious offences. The way in which Mr Dein puts the matter is that the risk to Mr Lomey of his being recalled under the Life Licence to which he is presently subject, is a real injustice which can only be ameliorated by an absolute discharge. It is to be pointed out that, for almost 20 years, Mr Lomey has not been in prison and for the last 4 years he has been at liberty. Coupling those matters of history with his age, it seems to us that the risk of him now engaging in behaviour which might require his recall to prison is for breach of life licence minimal and academic. We do not disregard the fact that Mr Lomey would now wish not to have the stigma of a life licence. But, as is apparent from the history of this case, in the wholly unlikely event of Mr Lomey behaving in a way which requires his recall, it is inconceivable that he would not then be transferred to hospital. In any event, as we have already said, that is a minimal risk. We are not persuaded that it would justify this Court in passing sentences of absolute discharge in relation to these grave offences which did and do not merit such an order either by the sentencing judge or by this Court. Accordingly, despite our sympathy for Mr Lomey, this appeal must be dismissed. | {"ConvCourtName": ["Central Criminal Court"], "ConvictPleaDate": ["8th May 1984"], "ConvictOffence": ["aggravated burglary", "damaging property", "breach of a suspended sentence", "assault occasioning actual bodily harm", "causing grievous bodily harm with intent"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Central Criminal Court"], "Sentence": ["2 years' imprisonment", "6 months' imprisonment", "total sentence was therefore one of life imprisonment", "life imprisonment", "18 months' imprisonment"], "SentServe": ["concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["personality disorder"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["the occupier", "his wife"], "VictimType": ["his wife"], "VicNum": ["daughter, Kim", "his wife", "assaulted the occupier"], "VicSex": ["his wife"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["wife's flat"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["causing lacerations to her head and fractures", "medical reports"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["record of violent and dishonest offences.", "carrying a spade"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against that sentence"], "AppealGround": ["basis that there is a real possibility that this Court might conclude that the imposition of a life sentence should now be considered to have been inappropriate"], "SentGuideWhich": ["sections 37 and 41 of the Mental Health Act 1983", "section 11(3) of the Criminal Appeal Act 1968", "section 9 of the Criminal Appeal Act 1995"], "AppealOutcome": ["appeal must be dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["We are not persuaded that it would justify this Court in passing sentences of absolute discharge in relation to these grave offences"]} | {"ConvCourtName": ["Central Criminal Court"], "ConvictPleaDate": ["1984-05-08"], "ConvictOffence": ["breach of a suspended sentence", "damaging property", "assault occasioning actual bodily harm", "aggravated burglary", "causing grievous bodily harm with intent"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No", "Yes"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Central Criminal Court"], "Sentence": ["total sentence was therefore one of life imprisonment", "18 months' imprisonment", "6 months' imprisonment", "2 years' imprisonment", "life imprisonment"], "SentServe": ["Concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Had mental health problems"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Stranger", "Relative"], "VictimType": ["Individual person"], "VicNum": ["2 of 3", "1 of 3", "3 of 3"], "VicSex": ["All Female"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["medical reports", "Medical evidence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["Weapon /armed", "record of violent and dishonest offences."], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against that sentence"], "AppealGround": ["basis that there is a real possibility that this Court might conclude that the imposition of a life sentence should now be considered to have been inappropriate"], "SentGuideWhich": ["section 11(3) of the Criminal Appeal Act 1968", "sections 37 and 41 of the Mental Health Act 1983", "section 9 of the Criminal Appeal Act 1995"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["We are not persuaded that it would justify this Court in passing sentences of absolute discharge in relation to these grave offences"]} | 206 |
Neutral Citation Number:
[2018] EWCA Crim 1755
Case No:
201800530 A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date Friday 13 April 2018
B e f o r e
:
LORD JUSTICE SIMON
MR JUSTICE TURNER
MR JUSTICE GARNHAM
- - - - - - - - - - - - - - - -
R E G I N A
v
KIERON KNIGHT
- - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -
Mr A Birkby
appeared on behalf of the
Appellant
- - - - - - - - - - - - - - - -
J U D G M E N T
If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (
Sexual Offences (Amendment) Act 1992
), or where an order has been made in relation to a young person.
LORD JUSTICE SIMON:
1.
On 26 September 2017 in the Crown Court at Leeds, the appellant pleaded guilty to a single offence of assisting an offender, contrary to
section 4(1)
of the
Criminal Law Act 1967
(count 4). On 5 January 2018 he was sentenced by His Honour Judge Mairs to a term of 25 months' imprisonment. He appeals against that sentence with the leave of the single judge.
2.
A co-defendant, Karl Stewart pleaded guilty to an offence of possessing a prohibited firearm (count 1) and possessing prohibited ammunition without a firearms certificate (count 2). Stewart also pleaded guilty to two conspiracies charged on different indictments: a conspiracy to transfer a prohibited weapon and a conspiracy to supply class A drugs. He was sentenced to an overall term of 13 years and 11 months' imprisonment. This included five years for the offences charged as counts 1 and 2.
3.
On the evening of 3 April 2017 armed police officers were attempting to arrest Stewart. At around 10.43 in the evening a police helicopter located a motor vehicle connected to him in a cul-de-sac in Alwoodley, Leeds, where the appellant lived. The driver's door of the car was open and the officers could see two men standing near the vehicle. These two men went into a wooded area nearby and an item was seen to be left near a hedge in the neighbouring street.
4.
Both men then returned to the vehicle which was driven away. Officers in a police car attempted to stop the vehicle but it made off, colliding with the police car and driving on the pavement in order to evade capture. There was a short pursuit before the vehicle was abandoned and the two men made off on foot. They went to the back doors of nearby houses and tried several, before finding a house that was unlocked. They entered this property, causing considerable alarm to the occupants, who immediately heard armed police identifying themselves outside. Soon after, the occupants managed to get out and Stewart and the appellant emerged and were arrested.
5.
With the assistance of the helicopter and a police dog the police searched the area where they had seen the item being left. They found a man bag which contained a 7.62mm calibre semi-automatic handgun with a barrel length of 11.5 cm and an overall length of 22.5 cm. There were two live rounds of ammunition inside the gun, one in the breach and one in the magazine. There were two further empty magazines within the bag. Both defendants made no comment in interview.
6.
There was a basis of plea in the following terms:
The defendant will plead guilty to assisting an offender on the following basis:
He was not aware that Stewart was attempting to dispose of or conceal the firearm but knew that he had been in possession of a firearm earlier and presumed that is why the police wanted to arrest Stewart. Thereafter he assisted Stewart in making his escape.
7.
The appellant was aged 25 at the date of sentence with three convictions spanning 2008 to 2012. Materially for present purposes he had a conviction for possession of class A and class B controlled drugs with intent to supply, for which he received a sentence of six years' detention on 13th November 2012. There was no pre-sentence report before the judge and we are satisfied that none is required for the purpose of this appeal.
8.
In passing sentence, the judge observed that the appellant had pleaded guilty on the day of the trial. Although it was also right to note that the Crown had added the count to the indictment on the day of trial. It was substantially different in nature to the other offences on the indictment and therefore there would be more credit than would be due to a plea on the day of trial. The judge rehearsed the facts of the offence and observed that the assistance was provided in relation to a lethal weapon ready for instant use. He said that he would be loyal to the appellant's basis of plea which said that he did not know that the man bag that was hidden contained a firearm, but it was clear that he knew that Stewart was wanted for firearms offences. He had some history of criminality himself and had been sentenced in 2012 to a period of six years' detention and was released in May 2015. That sentence did not expire until May 2018.
9.
The judge had been referred to the case of
R v Worthington-Hale
[2010] EWCA Crim. 1664. The criminality of the main offender's offence in the present case was less serious than the very serious offence in that case. He also recognised that the defendant who assisted the offender in that case did so for several days, although he also tried to assist the police in the apprehension of the offender to convince him to come from an attic in which he had hidden. In the appellant's case his assistance was trying to help the offender to flee from the police and initially he did so successfully.
10.
The judge said that the appellant would be given substantial credit for his guilty plea and some reduction for the fact that he had spent time on licence, which meant that remand time would not count. However, that licence period was imposed for serious criminality. Had the appellant contested the offence at trial the sentence would have been a term of three years' imprisonment. With substantial credit for the guilty plea, that was reduced to 28 months and it was reduced further to take into account the fact that the appellant wished to be sentenced in September 2017 but could not be. The sentence was accordingly a term of 25 months' imprisonment.
11.
In the grounds of appeal, and today, Mr Birkby advanced a number of points in support of the appeal. First, the criminality of the offending was assisting Stewart to evade arrest when the police car attempted to arrest them. The offence was spontaneous and short-lived, lasting no more than a couple of minutes and it was ultimately unsuccessful. Secondly, while the underlying offences by Stewart were serious, the prosecution accepted on the basis of plea that the appellant did not know that Stewart had attempted to dispose of the firearm in the woods immediately before the arrival of the police. Thirdly, by reference to the case of
Worthington-Hale
, where the court reduced the sentence to two-and-a-half years on a very late plea, he submitted that the index offence here was less serious. Fourthly, he argued there was personal mitigation available to the appellant, despite his antecedent history. Finally, he submitted that the appellant was entitled to maximum credit for his plea. Up until the day of the trial the prosecution had made it clear that only pleas to the firearm and ammunition counts would be acceptable. In summary he submitted that the starting point was too high and the credit for the plea was insufficient.
12.
We take that last point first. The appellant originally faced the same charges as Stewart: count 1, possession of a prohibited firearm on 3 April 2017, and count 3, possession of ammunition without a firearms certificate on the same day. On the day of the appellant's trial, fixed for 26 September 2017, the prosecution advanced the alternative charge, count 4, assisting an offender, to which the appellant pleaded guilty on the agreed basis. He wanted to be sentenced on the same date but this was not possible because Stewart had not been produced at court. Stewart and the appellant were produced on 28th September when it became clear that Stewart faced charges on other indictments. It was therefore not until 5th January 2018 that the appellant was sentenced. The judge gave 22 per cent credit for the plea and we are not persuaded that he was wrong in this assessment. The appellant was certainly not entitled to full credit in circumstances where he had remained silent in interview.
13.
We turn then to the other points. Although
Worthington-Hale
is a reported decision we doubt whether in general it is helpful to refer to cases of assisting offenders on different facts, and seek to compare the culpability and harm in one case with the culpability and harm in another. In the case of
Attorney General's Reference No 16 of 2009 (Yates)
[2010] 2 Cr.App.R (S) 11, at page 64, in a judgment given by the Lord Chief Justice, this court made clear at paragraph 33 that it was not intending to give detailed guidance on sentencing in cases of assisting offenders. Nevertheless, the court indicated the issues that arise in sentencing. First the nature and extent of the underlying criminality of the offender to whom assistance was given; second, the nature and extent of the assistance provided; third, the extent to which efforts to assist the primary offender damaged the interests of justice.
14.
So far as the first issue is concerned, the underlying criminality here was grave, but the prosecution did not dispute that the appellant was unaware that Stewart had disposed of a firearm, although he was aware that the police were looking for him in connection with a firearm.
15.
As to the second and third issues, the assistance given was not pre-planned, it was short-lived and it was largely ineffective, although he was on licence at the time.
16.
In our view the starting point in this case should have been a term of 30 months and with credit for his plea, together with the further reduction the judge made to take into account the delay in sentence, the sentence should be reduced to a term of 20 months.
17.
Accordingly, we quash the sentence of 25 months and substitute a sentence of 20 months. To that extent the appeal is allowed.
Epiq Europe Ltd
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165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400
Email: [email protected] | {"ConvCourtName": ["Crown Court at Leeds"], "ConvictPleaDate": ["26 September 2017"], "ConvictOffence": ["single offence of assisting an offender"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["pleaded guilty on the day of the trial."], "RemandDecision": ["had spent time on licence"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Leeds"], "Sentence": ["term of 25 months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["aged 25"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["cul-de-sac in Alwoodley, Leeds"], "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": ["attempting to arrest Stewart."], "DefEvidTypeTrial": ["not aware that Stewart was attempting to dispose of or conceal the firearm but knew that he had been in possession"], "PreSentReport": ["data not available"], "AggFactSent": ["spontaneous and short-lived,", "three convictions", "live rounds of ammunition"], "MitFactSent": ["spontaneous and short-lived,", "substantial credit for his guilty plea", "entitled to maximum credit"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["co-defendant, Karl Stewart"], "AppealAgainst": ["appeals against that sentence"], "AppealGround": ["prosecution did not dispute that the appellant was unaware that Stewart had disposed of a firearm", "prosecution accepted on the basis of plea", "mitigation available", "entitled to maximum credit", "index offence here was less serious.", "spontaneous and short-lived,"], "SentGuideWhich": ["(Sexual Offences (Amendment) Act 1992),", "section 4(1) of the Criminal Law Act 1967"], "AppealOutcome": ["quash the sentence of 25 months and substitute a sentence of 20 months. To that extent the appeal is allowed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["nature and extent of the underlying criminality"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Crown Court At Leeds"], "ConvictPleaDate": ["2017-09-26"], "ConvictOffence": ["single offence of assisting an offender"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["pleaded guilty on the day of the trial."], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Leeds"], "Sentence": ["term of 25 months' imprisonment"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["25"], "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 pursuit"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["data not available"], "AggFactSent": ["spontaneous and short-lived,", "Previous convictions", "live rounds of ammunition"], "MitFactSent": ["entitled to maximum credit", "spontaneous and short-lived,", "substantial credit for his guilty plea"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["1"], "AppealAgainst": ["appeals against that sentence"], "AppealGround": ["prosecution did not dispute that the appellant was unaware that Stewart had disposed of a firearm", "mitigation available", "entitled to maximum credit", "index offence here was less serious.", "prosecution accepted on the basis of plea", "spontaneous and short-lived,"], "SentGuideWhich": ["(Sexual Offences (Amendment) Act 1992),", "section 4(1) of the Criminal Law Act 1967"], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["nature and extent of the underlying criminality"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 392 |
No:
200800781 A6
Neutral Citation Number:
[2008] EWCA Crim 703
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 18th March 2008
B e f o r e
:
LORD JUSTICE MOORE-BICK
MR JUSTICE OPENSHAW
MR JUSTICE KING
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
ZULFIKAR GIGA
- - - - - - - - - - - - - - - - - - - - -
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 Middleton
appeared on behalf of the
Applicant
Mr J Pini QC
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE MOORE-BICK: On 3rd November 2005, in the Crown Court at Cambridge before Mr Recorder Ayers, the appellant was convicted of incitement to cause grievous bodily harm with intent and of making threats to kill. On the same day he was sentenced to six years' imprisonment for the offence of incitement and three years' imprisonment concurrent for the offence of making threats to kill.
2.
The facts giving rise to the convictions arose out of some inter-community unrest in Peterborough caused by the marriage of Pakistani women to men of other ethnic origins. The complainant in this case was an Iraqi Kurd who had married a Pakistani lady, thereby causing some resentment amongst certain people within the Pakistani community. As it happens, this appellant is not himself from Pakistan; he is Indian, his family having originally come here from Uganda, but nonetheless he played a role, as the jury found, in inciting members of the Pakistani community to express their anger and resentment in the form of a violent attack upon the complainant.
3.
On 5th February 2005 the appellant, together with a large group of Asian men, some of whom were carrying what looked like golf clubs, gathered outside the complainant's house. The appellant was the ringleader and shouted threats, accusing the complainant of going out with Asian girls and threatening to catch and kill him. The appellant said that the complainant would be the first Kurdish person to be killed with a Pakistani wife.
4.
On 9th February, at about 7 pm, the complainant and his wife were sitting in their car in Lincoln Road, Peterborough when they were approached by two Pakistani men and surrounded by other vehicles which prevented their escape. The complainant was pulled out of the car, hit on the head with a brick, beaten with an electrified baton and threatened with a gun.
5.
When passing sentence, the Recorder observed that crimes motivated by racial hatred are particularly serious and that it was necessary in his view to impose a deterrent sentence in order to send a message to other members of the community that such behaviour would not be tolerated. Having imposed a sentence of six years' imprisonment, he said this:
"You will serve half of that sentence, and then you will be released, but between the time of your release and the end of the sentence you will be on licence."
6.
The appellant sought and obtained from the Full Court permission to appeal against sentence and conviction, but on 30th January 2007 the court, consisting of Longmore LJ, Lloyd Jones J and the Recorder of London, His Honour Judge Beaumont QC, dismissed his appeal.
7.
The matter now comes before the court again on a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995. The Commission has referred the matter to this court for consideration on the grounds that:
"It can be inferred from the Judge's sentencing comments that he intended that Mr Giga would serve 3 years in prison. The Judge failed to recognise that, owing to the date of the offences concerned, Mr Giga would be required to serve two-thirds of his sentence (i.e. 4 years) before being entitled to automatic release, rather than one-half."
8.
The Commission declined to refer the matter on another ground put forward by the applicant, namely, that he had a legitimate expectation that he would be released automatically after serving half his sentence, and that has not been pursued.
9.
The argument for the appellant can be stated very shortly without robbing it of any of its weight. It is that the Recorder, having in mind the effect of the Criminal Justice Act 2003, passed a sentence of six years' imprisonment with the intention that the appellant should spend a period of three years in custody (less of course time spent in custody on remand), but that in the event, because the provisions of the Criminal Justice Act 1991 apply in this case, he will in fact be required to spend four years in custody. The sentence should therefore be reduced to reflect the Recorder's true intention.
10.
We are unable to accept that submission. In some cases judges can be seen to have had particular regard to the sentencing regime in force at the time and to have tailored their sentences by reference to the effect which they understand that regime would have on the period which the defendant could expect to spend in custody. However, there is nothing in the Recorder's sentencing remarks to suggest that in determining the correct sentence for these offences he was directing his mind primarily, or indeed at all, to that question. What one sees there is that he determined what he considered to be the correct sentence having regard to the nature of the offences, such mitigation as was available to the appellant and the circumstances of the case as a whole, before providing an explanation of what he understood to be the effect of the statutory sentencing regime – an explanation which he was required by statute to give but which did not itself have any bearing on the time that the appellant would be required to spend in custody.
11.
Our attention has been drawn to three authorities in which a similar question has been considered. In the case of
Ravel
[2007] EWCA Crim 1091
the appellant pleaded guilty to unlawful wounding and perverting the course of justice. He was liable to be sentenced to an extended sentence of imprisonment under the provisions of the Criminal Justice Act 2003 for the offence of wounding. The judge passed a sentence of four years and three months' imprisonment, being a custodial period of 15 months and three years extended period of licence. He passed a consecutive sentence of three months' imprisonment for perverting the course of justice. At the conclusion of his sentencing remarks the judge said that the defendant would have to serve one-half of the sentence, apparently overlooking the fact that under section 247 of the Criminal Justice Act the approval of the Parole Board is required before a prisoner subject to an extended sentence can be released.
12.
After the appellant had served nine months of his sentence the Parole Board had still not considered his case so the matter was re-listed before the sentencing judge, who made it clear that he had intended the appellant to serve only 18 months in custody. The Full Court gave leave to appeal, expressing concern that since the judge had passed a sentence intending that the appellant should be released after nine months and that had not occurred, the appellant had an understandable grievance that should be considered on appeal. On the substantive appeal the court expressed some sympathy with the appellant and indicated that it might have given effect to the concerns voiced earlier, if it had had the power to do so, but since the statutory provisions gave it no discretion on the matter it could not. Mr Middleton relies in support of his submissions on the indication that the court gave in that case that it might have been willing to adjust the sentence had it had the power to do so.
13.
In
Doyle
[2007] EWCA Crim 2960
the appellant was charged in September 2000 with two offences of assault occasioning actual bodily harm against his cohabitee. Having been released on bail, he absconded and was not arrested until March 2005. In July 2005 he was convicted of the two offences and sentenced to two and two and a half years' imprisonment consecutive, that is, four and a half years' imprisonment in all. The judge explained that he would be released after he had served half the sentence and would then remain on licence for the balance of the period. She clearly had the provisions of the Criminal Justice Act 2003 in mind.
14.
The appellant appealed on the grounds that the judge had intended him to serve 27 months in prison but had unintentionally passed a sentence that would lead to his spending a longer period than that in custody. This court accepted that submission, albeit, as it said, with some reluctance, and reduced the sentence.
15.
In
Bright
[2008] EWCA Crim 462
, however, another constitution of this court, presided over by Sir Igor Judge, President of the Queen's Bench Division, took a rather different view of a similar submission. The appellant had been the managing director and chief executive officer of the Independent Insurance Group, which had collapsed in 2001 and gone into liquidation with an enormous deficiency of assets to liabilities. The appellant was convicted on two counts of conspiracy to defraud and sentenced to seven years' imprisonment. He appealed against sentence. It is unnecessary for the purposes of the present appeal to summarise most of the issues which arose in that case or the court's decision on them. However, one ground of appeal in that case, as in the present, was that, having told the appellant that he would be released after serving three and a half years' imprisonment, the judge had failed to give effect to his intention because he had overlooked the fact that the relevant sentencing regime was that applicable under the Criminal Justice Act 1991, rather than that established by the Criminal Justice Act 2003.
16.
The President, giving the judgment of the court, said this in paragraph 41:
"... Mr Winter sought to argue that as the judge intended a 3½ year sentence actually to be served, the sentence should in any event be reduced to 5¼ years. The submission is based on a fallacy. The actual sentence was 7 years imprisonment. The release provisions did not and should not have affected the judge's sentencing decision. What he was required to do was to explain the effect of the sentence in the context of the applicable statutory provisions relating to release. He did not 'intend' that the appellant should be released after 3½ years: that would simply have been the consequence if the 2003 Act had applied to the sentence, and he was required to state that consequence in open court."
17.
In our view, the present case falls squarely within these principles, and if we have to chose between the earlier decisions of this court we unhesitatingly prefer the decision in
Bright
which deals with the matter as one of principle. It is true that in the present case the Recorder did not clarify his intentions in the way that the judge did in
Bright
on the very day of sentence and so make it clear what his actual intention was, but that does not, in our view, affect the fundamental principle that the judge's task is to determine the overall length of sentence, not how long the defendant will actually spend in custody.
18.
Mr Middleton submitted that the essential ground of appeal in this case, as in all such cases, is that it would be unfair to the appellant to require him to serve a period in custody longer than the judge had told him he would have to serve. In our view, however, the judge is simply required to explain the effect of his sentence and it does not make the sentence unfair in any sense which gives rise to a ground of appeal if he simply makes an error in carrying out that function.
19.
In the present case we are unable to accept that the Recorder did “intend” in any conscious sense that the appellant should be released after three years or any other particular period; he simply passed what he considered to be the sentence appropriate to the offences of which the appellant had been convicted, namely, one of six years' imprisonment. He was required to explain the effect of his decision, but the fact that his explanation was inaccurate because he had the wrong statutory provisions in mind does not undermine his decision or provide grounds for saying that the sentence was wrong in principle or manifestly excessive; indeed this court has already held that it was not. In these circumstances, the appeal constituted by the reference is dismissed. | {"ConvCourtName": ["Crown Court at Cambridge"], "ConvictPleaDate": ["3rd November 2005"], "ConvictOffence": ["making threats to kill", "incitement to cause grievous bodily harm with intent"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["custody on remand"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Cambridge"], "Sentence": ["three years' imprisonment", "six years' imprisonment"], "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": ["approached by two"], "VictimType": ["the complainant"], "VicNum": ["the complainant"], "VicSex": ["him"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["the complainant's house"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["data not available"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["appellant was the ringleader", "brick"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence and conviction"], "AppealGround": ["the judge had intended him to serve 27 months in prison but had unintentionally passed a sentence that would lead to his spending a longer period than that in custody."], "SentGuideWhich": ["Criminal Justice Act 1991", "Criminal Justice Act 2003", "section 9 of the Criminal Appeal Act 1995"], "AppealOutcome": ["the appeal constituted by the reference is dismissed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["he had the wrong statutory provisions in mind does not undermine his decision or provide grounds for saying that the sentence was wrong in principle or manifestly excessive"]} | {"ConvCourtName": ["Crown Court At Cambridge"], "ConvictPleaDate": ["2005-11-03"], "ConvictOffence": ["incitement to cause grievous bodily harm with intent", "making threats to kill"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Cambridge"], "Sentence": ["three years' imprisonment", "six 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": ["Don't know"], "OffVicRelation": ["Stranger"], "VictimType": ["Individual person"], "VicNum": ["1 of 1"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["data not available"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["Weapon /armed", "appellant was the ringleader"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence and conviction"], "AppealGround": ["the judge had intended him to serve 27 months in prison but had unintentionally passed a sentence that would lead to his spending a longer period than that in custody."], "SentGuideWhich": ["section 9 of the Criminal Appeal Act 1995", "Criminal Justice Act 1991", "Criminal Justice Act 2003"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["he had the wrong statutory provisions in mind does not undermine his decision or provide grounds for saying that the sentence was wrong in principle or manifestly excessive"]} | 282 |
Neutral Citation Number:
[2018] EWCA 1064 (Crim)
Case No.
201702225 A4
IN THE CORT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Friday 26
th
January 2018
B e f o r e:
LORD JUSTICE SIMON
MR JUSTICE SPENCER
and
HIS HONOUR JUDGE PICTON
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
_________________
R E G I N A
- v -
IONUT EMANUEL LEAHU
____________________
Computer Aided Transcription by
Wordwave International Ltd trading as DTI
165 Fleet Street, London EC4A 2DY
Telephone No: 020 7404 1400; Fax No 020 7404 1424
(Official Shorthand Writers to the Court)
____________________
Mr J Holland
appeared on behalf of the Appellant
______________________
J U D G M E N T
LORD JUSTICE SIMON:
1. On 3
rd
April 2017, in the Crown Court at Inner London, the appellant changed his plea to guilty to an offence of conspiracy to defraud, contrary to common law. On 2
nd
May 2017 he was sentenced by Her Honour Judge Karu to a term of 58 months' imprisonment.
2. A co-defendant, Gheorghe Mirzac, had also changed his plea to the same offence. He was sentenced to a term of 34 months' imprisonment.
3. The appellant appeals against his sentence with the leave of the single judge.
4. The conspiracy concerned a carefully planned, sophisticated fraud whereby an organised crime group obtained access to 51 ATMs over a spring bank holiday weekend at the end of May 2014 at locations around England, from Blackpool to Brighton. All the cash machines belonged to a company called Cardtronics. The computers inside the cash machines were tampered with, and this enabled the offenders to remove cash in very large quantities. Over a five day period from 21
st
to 27
th
May 2014 over £1,300,000 was stolen.
5. The parties to the conspiracy included four Romanian or Moldovan men: Paladi, Bortos, the appellant and Mirzac. Paladi was arrested in October 2014. He pleaded guilty at his pre-trial preparation hearing on 27
th
January 2015 in the Crown Court at Southwark to an indictment drafted in similar terms. He was sentenced to a term of five years' imprisonment. The case of Bortos was tried at the Central Criminal Court. He initially pleaded not guilty on 25
th
September 2015, but changed his plea when the trial was listed in December 2015. He was sentenced to a term of seven years' imprisonment.
6. It is unnecessary and perhaps undesirable to describe precisely how the fraud was carried out. The significance of the bank holiday weekend was that the ATMs were loaded with extra cash in anticipation of the heavier demand by customers during that period. It was in preparation for this that malware had been loaded late at night prior to the bank holiday weekend.
7. The fraud eventually came to light when the police observed suspicious activity by an unidentified male at an ATM in Morden.
8. A particularly sophisticated virus had been introduced. The police did not think that ATMs in the United Kingdom had been attacked by the virus before, but it had been used in Russia in June 2014 and in Kuala Lumpur in September 2014. There was evidence that Paladi and Bortos were in Kuala Lumpur at the time of the offending there, suggesting that the same organisation was involved in all of the attacks.
9. Bortos was sentenced on the basis that he held a middle-ranking role that was at a similar level to Paladi. Paladi or Bortos were present or nearby when the malware was loaded. The appellant's role included identifying and then accessing ATMs so that the malware could be loaded. There was frequent telephone contact between the conspirators. Between 19
th
March and 16
th
May 2014, there were some 273 calls or texts exchanged, and a further 86 instances of phone contact between the appellant and Bortos' phone between 17
th
and 19
th
May 2014, and twice between the appellant and Paladi on 17
th
May. The evidence was consistent with the appellant's actions being co-ordinated by Bortos.
10. The appellant and Mirzac were both arrested on 16
th
May 2014, a few days before the spate of thefts over the bank holiday weekend.
11. Following their arrest they were taken to Brixton Police Station, interviewed and released on police bail. They were bailed to 14
th
July 2014. While they were in custody, Bortos was in contact with the appellant asking where they were. Within half an hour of their release, Bortos was contacted by telephone.
12. Mirzac and the appellant both then fled the jurisdiction. The appellant boarded a flight from Luton to Bacau in Romania on 18
th
May 2014 and Mirzac went to Moldova via Istanbul on 29
th
May 2014.
13. There was an application for European Arrest Warrants and they were extradited – the appellant on 30
th
September 2016 from Romania and Mirzac on 11
th
February 2017 from France.
14. Records also showed that the appellant had travelled to Istanbul with Bortos on 19
th
April 2014.
15. It is unnecessary to say anything further about the facts, since the grounds of appeal are confined. It is said that, in sentencing the appellant, the judge referred to the fact that Mirzac in his basis of plea had said that he had been recruited by the appellant. Reliance is placed on one short aside in the judge's sentencing remarks, where, in sentencing the appellant, she said:
Mirzac's basis of plea states that you introduced him to Bortos.
16. This was true. Mirzac's basis of plea
did
say that the appellant had introduced him to Bortos. However, the appellant's basis of plea, at paragraph 6, was that he had not recruited anyone. It follows that what the judge said was only relevant to Mirzac. It should have been avoided when dealing with the appellant's sentence in the light of his basis of plea.
17. In his well-focused submissions this morning, Mr Holland has submitted that if recruitment was treated as an aggravating feature, the question is: to what extent did it aggravate the sentence against the appellant? He submits, as is undoubtedly the case, that it was listed in the passage dealing with aggravating factors in relation to the appellant, and that the inference can properly be drawn that it aggravated the sentence in the mind of the judge against the appellant.
18. In our view, it did not. On his basis of plea, Mirzac had been involved for a single day – the day of his arrest – and involved in two cash machines. He had not been paid. Before the short observation of which complaint is made, the judge had set out a sound basis for sentencing the appellant to a term of 58 months' imprisonment. She differentiated the roles of the appellant and Mirzac. She said:
Leahu, in your basis of plea you state your role was that of reconnaissance for a maximum period of two weeks. You were paid £1,000 per week. The role evidently included identifying and then accessing ATMs with a view to malware being loaded onto them. You knew what the purpose of the enterprise which you lent yourself to was although you may not have known the full extent of it and you were content to lend yourself to the facilitation of the fraud.
The fact that you were provided with the notebook which contained the locations of the ATMs and given the keys to some of them suggests you were a trusted member of the enterprise. You were in possession of the keys when you were arrested. You were in frequent contact with Bortos and also with Paladi which suggests co-ordinated activity.
19. The sentence on the appellant was neither wrong in principle, nor resulted in a sentence that was manifestly excessive – nor, we would add, was it such as to give rise to objectionable disparity. Indeed, if the appellant and Mirzac had received the same sentence, or if the appellant had received a substantially lower sentence, it would have been Mirzac who would have cause for complaint.
20. The appeal is accordingly dismissed. | {"ConvCourtName": ["Crown Court at Inner London"], "ConvictPleaDate": ["3rd April 2017"], "ConvictOffence": ["conspiracy to defraud"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["changed his plea to guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["released on police bail"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Inner London"], "Sentence": ["58 months' imprisonment."], "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": ["data not available"], "VictimType": ["company called Cardtronics"], "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": ["notebook", "police observed suspicious activity", "273 calls or texts exchanged"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["sophisticated", "£1,300,000 was stolen."], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["A co-defendant"], "AppealAgainst": ["The sentence", "against his sentence"], "AppealGround": ["manifestly excessive"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["dismissed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The sentence on the appellant was neither wrong in principle, nor resulted in a sentence that was manifestly excessive – nor, we would add, was it such as to give rise to objectionable disparity."]} | {"ConvCourtName": ["Crown Court At Inner London"], "ConvictPleaDate": ["2017-04-03"], "ConvictOffence": ["conspiracy to defraud"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["data not available"], "RemandDecision": ["Unconditional Bail"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Inner London"], "Sentence": ["58 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": ["data not available"], "VictimType": ["Company"], "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 evidence", "Police evidence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["Financial gain/value", "sophisticated"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["1"], "AppealAgainst": ["The sentence", "against his sentence"], "AppealGround": ["manifestly excessive"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The sentence on the appellant was neither wrong in principle, nor resulted in a sentence that was manifestly excessive – nor, we would add, was it such as to give rise to objectionable disparity."]} | 358 |
Neutral Citation Number:
[2004] EWCA Crim 2848
Case No:
2003/04106/D4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEEDS CROWN COURT
(TREACY J)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 18 November 2004
Before :
LORD JUSTICE POTTER
MR JUSTICE HUNT
and
MR JUSTICE TUGENDHAT
- - - - - - - - - - - - - - - - - - - - -
Between :
REGINA
- and -
CARL WESLEY MASON
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Robert Smith QC and Mr Simon Jackson QC
for the
Appellant
Mr James Goss QC and Mr Nick Barker
for the
Crown
Hearing date : 29 October 2004
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Potter :
Introduction
1.
On 13 November 2002 in the Crown Court at Leeds before Mr Justice Treacy the appellant pleaded guilty to a charge of manslaughter contained in Count 2 of an indictment as an alternative to the charge of murder contained in Count 1. Count 1 and a further account of affray (Count 3) were ordered to remain on the file under the usual terms.
2.
On 4 March 2003 in the Crown Court at Manchester an application was made to Treacy J to vacate the guilty plea. That application was refused. It was renewed on 16 June 2003 at Kingston-upon-Hull and was again refused by Treacy J, the appellant being sentenced on that date to a term of four years’ imprisonment consecutive to a term of four years’ imprisonment which he was already serving for an unrelated offence.
3.
There were three co-defendants, Jason Hodgson, Leanne Beard and Mathew Carney. Hodgson and Beard also pleaded guilty to manslaughter (Count 2) as an alternative to murder (Count 1) and were sentenced to four years’ and six months’ imprisonment and three years’ and six months’ detention in a Young Offenders’ Institution respectively. Carney was acquitted under
s.17 of the Criminal Justice Act 1967
after the prosecution offered no evidence against him.
4.
The appellant now appeals against conviction and sentence by leave of the single judge.
The facts
5.
In the early evening of 16 September 2001, the appellant, his girl friend Leanne Beard and her cousin Jason Hodgson were part of a christening party which ended up at Yates’ Wine Lodge in York. During the evening Michael Brolly, the eventual victim, was also drinking at the bar and became loud and aggressive towards them. The group then proceeded to another bar. By then the appellant and Leanne Beard had been refused service at Yates Bar on the grounds that the appellant was too drunk. Brolly also went to the second bar and continued to act aggressively towards them eventually making his way out of the bar while continuing to shout at the main group. At this point he knocked over Leanne Beard.
6.
Outside the bar Brolly removed his shirt and taunted various members of the group gesturing them to come towards him. Beard hit him with her handbag and swore at him and he then started to run away pursued by a group which included Hodgson which gave chase and caught up with Brolly. He was surrounded and brought to the ground and repeatedly kicked and punched. The appellant and Beard, who had not been part of the group involved in the initial attack, then came onto the scene and joined in the assault on Brolly. Members of the public summoned the police who arrived with paramedics within a few minutes. Unsuccessful attempts were made to revive Brolly at the scene but he was pronounced dead shortly after his arrival at hospital. A post-mortem examination confirmed that he had died as a result of multiple injuries sustained in the attack.
7.
Hodgson was arrested and interviewed shortly afterwards. He accepted that he had chased after the deceased had punched him. However he denied that he had kicked the deceased and maintained he had tried to stop others from doing so. In interview the appellant and Beard both claimed that, when they reached the scene, the deceased was motionless on the ground and his attackers gone. The appellant said that he had waited at the scene with Beard and she had been upset and both denied being involved in the assault. However, on being shown a pair of her boots stained with the blood of the deceased which had been recovered near her home, Beard admitted that she had kicked the deceased twice in the lower back. The two, with others, were charged with murder and affray.
8.
The appellant and his co-defendants were due to stand trial on 13 November 2002. By then, the appellant was in prison serving a term of 4 years’ imprisonment, having pleaded Guilty to an offence under
s.20 of the Offences Against the Person Act 1861
, at a trial where he was indicted under s.18. Some weeks prior to the instant trial, counsel for the various defendants made approaches to the prosecution to establish whether a compromise could be reached. The Crown made clear that, if the appellant, Hodgson and Beard pleaded guilty to manslaughter, such a plea would be accepted, but that a trial on the count of murder would be pursued if there were not a collective plea to that effect from all three defendants.
9.
It was the case for the Crown that the appellant was part of a joint enterprise to attack Brolly in the course of which he met his death. Both the evidence of eye witnesses prior to the attack and CCTV evidence available showed him with Leanne following the first group to a point just prior to the fatal incident which occurred off camera. He was distinctly dressed with a yellow baseball cap and large white jacket. It was alleged that the appellant and Leanne Beard had both participated in kicking the deceased on arriving at the scene and that an imprint on the face of the deceased was consistent with it having been made by the appellant’s training shoe. There were two eye witnesses who identified the appellant in the statement as having participated in the attack.
10.
Andrew Croft, a doorman who knew the appellant well and had seen how he was dressed earlier in the evening, said that he enjoyed a good view of the events. He witnessed the appellant and Beard severely kicking the deceased with the other members of the group.
11.
In his statement, Croft said he could see four or five men and Leanne Beard standing over the deceased.
“All these people were raining kicks at him [Mick Brolly] kicking him all over his body repeatedly and some kicking his head which was flopping about and I remember thinking then that he was probably unconscious at that point. This group kept kicking him for about 10 seconds or so and I saw Carl Mason kicking him as well as Jason Hodgson and Leanne Beard. The group were all as bad as each other as the kicks were quite severe. At the same time they were kicking Brolly, some of them were leaning over shouting abuse at him as he lay there. I had a good view of all this, as it was only across the road and I saw it quite clearly. After that 10 second period, one or two of the men, who I didn’t know, seemed to back off a little and that left Hodgson, Mason and Beard to kick a little more before the attack finished.”
12.
Wayne Wheatland described the chasing of the deceased. He followed on, being behind the appellant and Leanne Beard, whom he identified as following the leading group. As he approached the scene he saw Hodgson attacking the deceased and then back off as some others joined in. He described himself as having a good view. He said:
“After a few moments I saw Leanne Beard and Carl Mason approach Mick who by now was laid facing away from me and them. I could see Mick was not moving at this point. As Leanne and Carl approached Mick, they both started kicking Mick and I could see clearly that they were kicking him from the bottom of his head to his back. I can recall that she also hit Mick with her handbag. I didn’t like what I saw and told them both to leave it and back off. Even Jason [Hodgson] was telling them to leave it and to come away and that was enough. They all seemed to back off. I do not remember any of the others I have previously mentioned attacking Mick, they may have done but I cannot recall.”
13.
Linda Coates witnessed the victim on the ground with a few people around him, two of whom were “kicking him quite violently” in his chest and stomach area. She saw a woman move away from the victim and shout twice to a male wearing a fleecy jacket and bright coloured baseball hat “He fucking deserved that”. On 18 October 2001 she identified Mason on a video identification parade as the man to whom the woman shouted. She also identified Leanne Beard as the woman.
14.
Jennifer Taylor saw the victim running, chased by five males who passed her. She saw him brought to the ground and initially attacked by one male. Two other males then joined in the attack which continued “mainly with kicking”. She then saw a female kick the victim in the back. On 18 October, she too identified one of the attackers as Mason and the female as Leanne Beard.
15.
Emma Morris heard a disturbance and a person cry “Come on everyone he has had enough”. She saw the victim on the floor being kicked by a group of four males, one of whom she stated was the appellant whom she had known for four years.
16.
It was the Crown case that there was evidence upon which an intention to cause grievous bodily harm could be established, but recognised that a lesser intention only might be proved against each defendant. The prosecution therefore indicated that they were prepared to accept a collective plea to manslaughter.
The decision to plead Guilty
17.
No firm agreement was reached and, prior to trial listed for 13 November 2002, the prosecution circulated a written opening of the case. On the day fixed for trial, the Crown were given leave to add a Count of manslaughter to the indictment which required all defendants to be arraigned on the new count. The matter was listed for 10.30am, but adjourned to permit consultations to take place between counsel and the defendants which lasted for the whole of the morning of 13 November. With the agreement of the parties’ respective legal representatives, the appellant and his co-defendants had a meeting without any representatives present in the cells at around midday to discuss their respective positions.
18.
Following that meeting, the appellant discussed with his counsel, Mr Patrick O’Connor QC and Mr Granville-Faul the strength of the prosecution case and in particular the evidence as to the extent of the appellant’s participation. Counsel considered a plea to be advisable. A considerable practical difficulty emerged in that the appellant accepted the advantages of a plea as put to him; however, he disputed that he had kicked the deceased or joined in the assault on him. At the same time, faced with the CCTV film, he stated that he could not remember seeing any part of the assault despite the fact that the film evidence made clear that he must have done and indeed showed him approaching the scene of the attack with Leanne Beard who had herself been identified by several witnesses as at the centre of the assault and who was proposing to plead guilty on the basis that she admitted kicking the deceased.
19.
While, in principle, the appellant was prepared to entertain a plea to manslaughter in order to avoid the risks of trial on a murder charge, the basis of his plea (or at any rate a basis satisfactory to the Crown) was problematic. The difficulties were discussed at length. A position was reached where the appellant appeared simply unable to make up his mind whether or not to plead guilty on the basis that he had participated in the joint enterprise of an attack on the victim, without accepting that he had kicked him, as alleged by the Crown.
20.
At 2.30pm on that day, so that the trial could proceed, Patrick O’Connor QC, requested that the appellant be arraigned first. At that stage his representatives were unaware as to how he would plead. They had discussed the matter with him and advised him of the strength of the prosecution case and left him to decide on his plea. When the indictment was put to the appellant he pleaded ‘Not Guilty’ to Murder but ‘Guilty’ of Manslaughter.
21.
Following the appellant’s guilty plea, the court adjourned, counsel for the co-defendants having indicated that their clients were also likely to plead guilty to the new count of manslaughter.
22.
Guilty pleas were entered by Hodgson and Leanne Beard on the following morning i.e. 14 November, and written bases of the defendants’ pleas were submitted. Leanne Beard pleaded guilty on the basis that she had participated in the assault and had kicked the deceased twice in his lower back area. Hodgson limited his participation to punching the deceased. However, at that stage of the proceedings his plea on that basis was not accepted by the prosecution which submitted that he had also kicked the deceased during the attack.
23.
On that morning, prior to the court sitting, the appellant had informed his legal representatives that he was unhappy with his plea of the day before. He received further advice from all members of his legal team upon the merits of the plea and the consequences of change, including the fact that his counsel would have to withdraw from the case. Later, he was advised separately by Mr Granville-Faul, with whom he had a particularly good relationship, and who had represented him at his previous trial. In the light of the appellant’s expressed uncertainty as to whether or not to withdraw his plea, Mr Granville-Faul advised him to consider his position for a few days before coming to any conclusion and the appellant accepted that advice.
24.
In court during the morning, the defendant’s written bases of plea were discussed before the judge. The basis of plea proffered on the appellant’s behalf in the light of his instructions read as follows:
“Carl Mason has pleaded guilty to manslaughter on the following basis;
(i) that Carl Mason was friendly with Michael Brolly inside Edwards’ Bar, but Michael Brolly appears to have bumped into Leanne Beard on his way out of the bar and that Carl Mason tried to restrain Leanne Beard from attacking Michael Brolly outside Edwards’ Bar.
(ii) that Carl Mason and Leanne Beard followed a group of men chasing Michael Brolly at some distance behind, walking rather than running, and pausing at the junction of Skelgate to see which way the chase had gone.
(iii) that Carl Mason’s involvement in the assault came after Michael Brolly had already been forced to the ground, punched and kicked to the body and head by others repeatedly and he was probably already unconscious.
(iv) it is accepted that Carl Mason was a participant in a joint enterprise which resulted in the death of Michael Brolly.”
25.
The judge pointed out that the basis of the plea failed to state specifically what the appellant had done at the scene. The following exchange took place:
“MR RUSSELL: I understand that Mason is unable to recall precisely what he did, but I have been handed a document, perhaps we can hand up the typed copy to your Lordship on that.
…..
MR O’CONNOR: Because there is a wider basis of plea which is more properly called our mitigation, this is the agreed basis of plea, and I am very grateful to my learned friend because he has gone a very long way. So if I may write on this, “Agreed by Crown”, and then it can’t be confused with any other material we place before your Lordship later. This is the only copy at the moment.
MR JUSTICE TREACY: … It doesn’t actually say what Carl Mason did at the scene?
MR RUSSELL: No, that’s what I’m about to deal with as I understand it, my Lord. I understand that Mr Mason is unable to recall precisely what he did. But my learned friend has indicated to me that the Crown evidence that he was involved in kicking can’t be disputed in those circumstances, and what I propose to do in relation to his case is to open what seems to the Crown to be the salient facts and mitigation can be put forward in the usual way.
MR JUSTICE TREACY: Yes.”
26.
On 14 November 2002, the matter was adjourned for sentence so that pre-sentence reports could be obtained for the appellants’ co-defendants. A report was not sought in the case of the appellant as he was already serving four years’ imprisonment for an offence of wounding which had been committed while he was on bail in respect of the present offence. The case was listed for sentence on 9 December 2002. During this interim period, however, the appellant dispensed with his legal advisers and his new representatives notified the court of an intended application to vacate his guilty plea on the ground that he had been denied freedom of choice and had been subject to unfair and improper pressure prior to making it, having always maintained that he was not guilty of the offence.
The application to vacate the plea: 4 March 2003
27.
A hearing date in this connection was fixed for 30 January 2003. Upon that and the next day the judge heard evidence from the appellant and his former counsel Patrick O’Connor QC and Granville Faul, the appellant having waived privilege. The hearing could not be completed because of the absence of Mr Whitely whose evidence was heard on 4 March 2003, following which the judge made his ruling.
28.
The appellant gave evidence that, at the meeting with his co-accused, he had let them know that he wished to go to trial, despite the fact that they made clear that they wanted a deal. He said that he knew the case against Leanne Beard was very strong and he tried to reassure her. He said that Jason Hodgson had said “Its up to you”. He wanted it out of the way in order to see his children. The appellant had told him he would be all right and maintained his position that he was going to trial. He said that later, when discussing it with Mr O’Connor QC and Mr Granville-Faul he had said that he did not know what to do. They considered that a plea was the best thing to do and talked about consecutive or concurrent sentences. He said that he had been in shock at the time. He acknowledged that counsel’s advice was ‘sensible’ in that they were thinking in the long run. He said that he had never told them that he accepted assaulting Brolly and said that he did not do the crime. When challenged on this in cross-examination, he rejected the suggestion that he had in fact accepted that he might have assaulted Brolly but now could not remember. He said he did not know what to do when he got to court. He realised that the trial had to proceed and that a decision was required but he could not make that decision. The solicitor’s note as to his evidence concerning his state of mind at the time of his plea reads as follows:
“The indictment was read to me … manslaughter charge. I didn’t answer straight away. I don’t recall delay. I was in a state of shock. I was thinking “What am I doing”. I did plead to manslaughter.”
29.
He said that he heard the case adjourned and returned to the cells where no-one came to see him at that stage.
30.
He said that on 14 November, Mr Whitely came to see him and the appellant told him he was not happy and wished to withdraw his plea, having made a mistake. Shortly afterwards, he saw his counsel and said he wanted to withdraw the plea and was not happy with how it had been dealt with. They advised him that he should not withdraw his plea that day but should think further about it. He was present when his co-accused entered their pleas that day and the case was then adjourned to 9 December. Afterwards he had a meeting with Mr Granville Faul who spent some time with him telling him he had done the right thing by not withdrawing his plea at that stage. He made clear that the appellant would lose a lot of credit if he did so. The appellant said that he understood why he said that. He said that his basis of plea was first discussed after his co-defendants pleas had been taken. In that connection he made clear that he could not accept that he had kicked the victim: “Those words would not come out of my mouth”. He said that O’Connor told him that the plea could be put on the basis that he was drunk. He said that he understood that the basis of his plea included the assertion that he could not recall events in York that night, but he had not realised that meant that he could not dispute the witnesses’ account. He only realised that fact when it became clear in court. He said he recalled mention on 14 November by the judge that the basis of plea did not admit what the appellant had in fact been doing and that was the first time he realised that in the mitigation statement he was “accepting what the witnesses said”. When later Mr Whitely sought to discuss the question of the plea with him, he said that he wanted to go to trial and would have to sack his representatives in favour of a new legal team.
31.
He acknowledged in cross-examination that, prior to 13-14 December, he had had many discussions about the strengths and weaknesses of the Crown’s case and the defence case and had been advised as to the benefits of a plea to manslaughter. The possibility both of all three defendants pleading and of the appellant pleading alone were discussed. He was not surprised that such a course was considered. He was aware of the benefits of pleading to a lesser offence because of his earlier trial. He acknowledged that the risks were discussed as to whether or not Croft would be an effective witness and strengths of the prosecution case and the weaknesses of the defence case were generally discussed. He said he felt pressurised by repeated requests as to what he was going to do. He had not made up his mind until the moment of plea that he would in fact plead. Mr O’Connor had told him that he would fight the case for him but that he would probably lose, in which case the appellant would get life. “He did say he would fight the case and probably lose. He said it was in my best interests. A matter for me. He would fight the case.”
32.
He asserted that he had ‘jumped at the chance’ of meeting the co-defendants. He reasserted that at that meeting he had told them he wished to go to trial and that was how it was left. He remembered seeing Mr Whitely just before he came in court:
“He didn’t put me under pressure. I said I didn’t know. I was thinking about Leanne and Jason … I knew their cases hinged on my decision …. I realised all had to plead. My position was uncertain. They would act in reliance on my plea. They could enter their pleas and deal be concluded.”
33.
He said that afterwards he realised that, if he reversed his position, it would affect Leanne and Hodgson. Later when he told the team he wanted to withdraw and mentioned new representation, they told him to go back and think about it. Although he wanted to sack them that day he was told delay would make no difference. He was told the decision was up to him, but in the view of counsel it would be a big mistake as neither the judge or the co-accused would be happy.
34.
It is unnecessary to recount the evidence of Mr Whitely, Mr O’Connor and Mr Granville-Faul, all of whom were cross-examined by counsel for the appellant. There was broad agreement as to the account of events, but not that the appellant said that the question of a collective plea was first discussed on 13 November. His advisers said that the offer of a collective plea had been known and discussed from a substantially earlier date. The principal issue was whether or not events and defence counsel had placed unfair pressure on the appellant to plead guilty. Counsel were also criticised in that (a) they had never stated in terms to the appellant that he should not plead guilty to something he had not done. (b) Once the appellant had manifested doubts as to his plea on 14 November, he had been advised to think it over for a few days rather than seek to change his plea then and there.
35.
The judge gave a lengthy and careful ruling.
36.
He reviewed the law relating to a defendant’s right to apply to vacate a plea of guilty and considered the cases of
Hall
[1968] 52 Cr App R 528
and
Turner
[1970] 2 QBD 321 observing that in the former case the Court of Appeal had stated clearly that the responsibility of pleading guilty or not guilty was that of the defendant himself, it being the clear duty of defending counsel to assist the defendant to make up his mind by putting forward the pros and cons of a plea, if need be in forceful language, so as to impress on the defendant the result of what a particular course of conduct is likely to be. In the latter case, this court reiterated that counsel may properly advise the defendant in strong terms to change his plea, provided it is made clear to him that the ultimate choice is freely his. The judge also stated that he had regard to the convenient restatement of the general legal principles in the case of
R v B
EWCA Crim 3020. He observed that:
“If there is a real possibility that a defendant did not have a free choice as to plea, or that there were other circumstances which called into question the genuineness of that plea, and if there is an objective basis for such a finding, this court should exercise its discretion to permit a change of plea.”
37.
He then dealt methodically with the grounds which had been advanced before him under the headings which we set out in heavy type below.
Denial of guilt until time of trial
38.
The judge did not find this a persuasive factor as very many defendants did just this. Indeed the defendant had done so in relation to the charge under section 18 of the Offences Against the Person Act with which he had been faced shortly after being charged with the murder in this case. He said that detailed denials were often transformed into guilty pleas when the Crown was prepared to consider a plea to a lesser charge. He found that, when instructing his solicitor and counsel that he was not guilty, but at the same time claiming that he could not remember through drink the detail of what he did on the night in question, the appellant was in effect saying “Well, I would never have kicked someone like that.” The judge found that the offer of a collective plea to manslaughter had been made by the Crown some weeks prior to trial and discussed with the appellant by his counsel two or three weeks prior to trial, at which stage the appellant had not dismissed a manslaughter plea out of hand but thought it might be attractive. It was not a sudden event thrust upon the appellant, but rather was one he had had ample time to consider in the light of advice as to his position given well before trial. The judge said:
“I can conclude that, like many in his position, he postponed any decision (a) until it became clear what others were doing and (b) until he actually had to give his decision.”
Discussion with co-accused
39.
The judge did not regard this as a significant event resulting in unfair pressure on the appellant to plead guilty. On the appellant’s own evidence, no pressure was put upon him by Hodgson and Beard. On his own account, at the end of the meeting, he was still minded to go to trial. There was no pressure from his co-accused. The judge stated:
“Further, I reject the suggestion that knowledge that they stood or fell together resulted in his making a decision which was not genuinely his. It is, no doubt, not an easy situation to be in, when faced with a decision of considerable importance, but there is nothing unusual in Mr Mason’s situation as it then was.”
Improper pressure by counsel
40.
This complaint had principally been raised against Mr O’Connor. The judge observed that it emerged in evidence less strongly than in the appellant’s witness statement. The judge’s conclusions were that (i) the case had been thoroughly prepared for trial by the solicitor and both counsel; (ii) the weaknesses of the appellant’s case had been fully and fairly explained to him; (iii) that such advice as was given did not transgress the limits discussed in
Turner
and
Hall
; no improper pressure was brought to bear upon the appellant; (v) the appellant was simply finding it hard to make a decision and was unwilling to look clearly and logically at the issues; (vi) the ultimate decision was left up to the appellant. The judge found that at the time of the plea:
“The reality is that, although counsel had given clear and firm advice, as they were bound so to do, they had not forced the defendant’s hand. They had left it for him to decide when he came up to court and entered his plea of guilty, it was no doubt influenced by their advice, but it was truly his own decision.”
The defendant’s condition on 13 November
41.
The judge stated that he had no doubt that by 13 November the defendant was in a state of anxiety. However, having examined the evidence of Mr Faul who was the last of the legal advisers to see the appellant before entering his plea, the judge said:
“Those last exchanges between Mr Granville-Faul and Mr Mason demonstrate not only the absence of improper pressure by counsel but also that Mr Mason albeit anxious, was rational and capable of making the decision. If anything, Mr Granville-Faul’s words eased the way for Mason to say Not Guilty, had he wished to do so. Yet Mr Mason ultimately decided otherwise by coming up to court and pleading guilty to manslaughter.
I do not find that there was anything to render the plea unsafe or doubtful based on the defendant’s condition, or that pressure and stresses he faced were greater than those facing many other defendants in a difficult position before having to make an important decision. There is some truth in an observation made by Mr O’Connor, that however long Mr Mason had to consider, he would have vacillated until the last moment.”
Advice given and written basis of plea
42.
The judge held that it was clear that the appellant knew the evidence against him well and understood it. He had discussed it at length and over time with his advisers. While he was reluctant to plead guilty to manslaughter and at no stage told his advisers that he was guilty, he knew what it would involve admitting if he did plead guilty. The judge rejected the submission that counsel were at fault in not saying that the appellant should not plead Guilty to something he had not done, or that they had no authority to put forward the basis of plea. He found that, by reason of earlier experience, as well as the advice he had received, the appellant was under no misapprehension in respect of the former. As to the latter, the judge stated:
“I accept that Mr O’Connor’s evidence, complemented by that of Mr Granville-Faul, that Mason was told in effect “If you plead guilty you must realise that by doing so, you will accept that you took part in the assault and since you say you can’t recall what you did, it will have to be on the basis of the evidence for the Crown.
By entering his guilty plea, the defendant was therefore acknowledging this and Mr O’Connor was entitled to produce and put before the court the document entitled ‘Basis of Plea’ which accurately reflects what the defendant had been told would be implicit in his plea of guilty if tendered …
I consider that Mr O’Connor was entitled to proceed as he did and to reserve the question of that specific injury to mitigation. In the circumstances, I do not consider that the way in which these aspects of the matter were handled advances the defendant’s application.”
The events of 14 November
43.
The judge said it was clear that on 14 November the defendant was unhappy with his decision; he also said that he had no faith in Mr O’Connor and talked to his legal team about changing his plea. The judge stated that the appellant was properly advised about the matter, Mr O’Connor going up to court and preparing a note for a submission asking for further time so that the defendant could change his plea, while Mr Granville-Faul went to see the defendant on his own. The judge accepted the latter’s evidence that he did not receive clear instructions that the appellant would withdraw his plea; just that he was generally unhappy with it. He had advised the appellant that a change of plea was a very serious thing to do. The appellant had understood what he was told and said he would think about it. Mr Granville-Faul then told him to think about it for a few days and that is how the matter was left before the return to court.
44.
The judge said this:
“That is why Mr O’Connor did not make any application to me to vacate the plea or any other application related to it. Mr Mason then did nothing in court during the hour or so that ensued to seek to change his plea there and then, even though there was a 15 minute break during that period for the Crown to take instructions on an unrelated matter.
It seems to me that the key to this matter is whether the plea tendered on 13
th
November was voluntarily entered. The fact that the defendant was subsequently unhappy about his decision cannot invalidate it if it was freely made, although I have regard to the events of 14
th
November when looking back at the events of 13
th
November … I conclude that [on 14
th
November] although generally unhappy, he was not wishing an application to be made that day or giving instructions which would require counsel to do so. As we now know, he decided he wanted to change his plea the following week.”
45.
The judge concluded:
“I find no objective material to lead me to conclude that this unequivocal guilty plea was entered on 13
th
November in circumstances which would cause me to doubt that the decision was that of the defendant, freely entered on an informed basis.
I find no other ground which would lead me to feel that there is a real possibility that the plea was given in circumstances which render it suspect. Accordingly, I refuse the application.”
The second application to vacate the plea: 16 June 2003
46.
Following his rejection of the first application to vacate the plea, and because of the evidence of Mr O’Connor to the effect that he had intended to mitigate on the basis that Mr Mason had not personally been involved in kicking the victim, Treacy J indicated that he thought it appropriate to hold a Newton Hearing on that issue. Two successive dates fixed for that purpose had to be vacated by reason of the appellant’s illness and the hearing was eventually arranged for 16 June 2003 for which purpose the Crown had originally proposed to call Mr Croft as a witness, but by which time various difficulties had surfaced. Upon 16 June, the Crown indicated that it was not in a position to call Mr Croft as he was facing possible charges for providing false information in support of a colleague in a recent incident of violence. Counsel for the Crown made clear that he was not abandoning Mr Croft as a witness of truth in these proceedings but indicated that for present purposes he was not in a position to call him because (a) it would be necessary for defence counsel to investigate the fresh material which had come to light and (b) it was likely that, in the course of that investigation Mr Croft would be cross-examined in a way that made it necessary to advise him of his privilege as to self-incrimination. There were other witnesses who could provide evidence, but they fell into a category of supporting evidence when compared to that of Mr Croft and, in the circumstances, the Crown formed the view that it would not be right to press the court to a finding positively against the appellant that he had been personally involved in kicking the deceased. Emma Morris was not considered a reliable witness in that she had previous convictions for possession of drugs and there was some suggestion that she was addicted at the time of the offence and Wayne Wheatland had gone abroad. The Crown took the view that, in the circumstances, it was not appropriate to submit an application to rely on his evidence pursuant to section 23 of the Criminal Justice Act.
47.
In those circumstances, the judge stated that he would sentence the appellant on the basis that he had been involved in the crime of manslaughter of the deceased but that it was not aggravated by any personal kicking on his part. That was, of course, the very burden of the appellant’s basis of plea and reflected the basis upon which he had originally been prepared to plead guilty.
48.
In the face of these developments, counsel for the appellant submitted that the appellant should be permitted to vacate his plea of guilty on the basis that the advice given to the appellant by his counsel on 13 November 2002 would have been different had the defence been aware of the information in relation to Andrew Croft, who was the primary witness for the prosecution. The judge did not accede to the application. He said that the unequivocal plea tendered in November 2002 (as he had already found) was in reality an admission of a participation in a joint attack upon the deceased, voluntary in nature and made on an informed basis. He characterised the plea as “a public and voluntary acceptance by this defendant that he took part in an unlawful attack”.
49.
In the judge’s view the subsequent discovery of misconduct by Croft did not affect the situation. The incident in respect of which he was facing possible charges occurred in April 2003 i.e. well after the entering of the plea. The judge said the position might have been stronger from the defendant’s point of view if any non-disclosure prior to plea had been involved. However, the allegations against Mr Croft arose out of an incident well after the date when the plea was tendered, let alone that of his original statement i.e. 21 September 2001.
50.
The judge summed up the matter in this way:
“It is right that one should have in mind that although the evidence of Mr Croft plainly played an important part in the case to be considered by those advising Mr Mason, it was not the only evidence. There was plain evidence of his presence; there was CCTV evidence which … demonstrated that such version of events as Mason was putting forward to his legal advisers could not be correct; there were other witnesses who implicated Mr Mason; the evidence was of a pack of people chasing Mr Brolly through the streets of York, in retaliation or revenge for previous misconduct of Brolly earlier that evening, and there was evidence which made it plain that Mr Mason had been part of the group which had been subjected to Mr Brolly’s misconduct and was part of the group which pursued him subsequently. It was also a relevant factor to be borne in mind by those advising – as was indicated to me by Mr O’Connor – that if the matter proceeded as a trial on murder, evidence in relation to the co-accused, Mr Mason’s girlfriend, Leanne Beard, was likely to be such as to make the task of those defending Mr Mason the more difficult.
In my judgment the new features of information which have arisen in relation to Mr Croft are not such as to cause me to exercise my judgment and to allow this defendant to change his plea. I regard the matters which have arisen as matters which had no influence upon the plea which was tendered in the sense that it was left to this man to decide whether he accepted he had participated or not in the joint enterprise resulting in Mr Brolly’s death. The information that was available to him then was information upon which he had to make his decision. The subsequent allegations which have been made against Mr Croft, in my judgment, do not affect the voluntariness or the validity of the plea then tendered, and I decline to accede to the submission made to me.”
The Grounds of Appeal
51.
The Grounds of Appeal as originally drafted assert that the judge erred in principle on the established facts and wrongly exercised his discretion on both 4 March and 16 June 2003 when refusing the applications of the appellant to vacate his plea. However, in the course of the appeal, Mr Smith QC for the appellant accepted that there were no grounds upon which the judge’s exercise of discretion on 4 March could be successfully challenged in that no error of law was demonstrable. Nor could it be shown that the judge considered the facts and submissions other than fully and fairly in reaching a decision which was properly open to him.
52.
We have no doubt that Mr Smith was correct to make that concession. We start, as did the judge, with the succinct statement of the position by this court in
R v B
[2002] EWCA Crim 3020
per Laws LJ.
“The law is very clear. The court of trial possesses a discretion to allow a defendant to change his or her plea of Guilty to one of Not Guilty at any time before sentence even though the plea may be said to be unequivocal: see the decision of this court in
Dodd
(1981) 74 Crim App R (s) 50. The discretion must of course be exercised judicially. There must be some objective basis for allowing the plea to be changed. Some of the cases however, show that the discretion is, generally speaking, exercised sparingly in the defendant’s favour. In
Cantor
[1991] Crim LR 481 it was made plain that this court would not lay down any rules of practice concerning such changes of plea. It was for trial judges to decide how to respond to an application for that to be done.”
53.
As made clear in
Dodd
, the question is not simply whether the plea was unequivocal; it is important that it should be freely made, given its status as a public acknowledgement and confession of guilt see
S v Recorder of Manchester
[1971] AC 481
per Lord Morris of Borth-y-Gest at p.501. In that connection, it is plainly important, almost invariably by the hearing of evidence, to investigate the position where it is suggested that the plea of guilty was made under undue pressure, that is to say (in the case of a person who is not suffering from illness or handicap) pressure beyond that inevitably incident to the criminal process and the need for the defendant at the appropriate time to record a plea, so that the trial may proceed. However, if the judge investigates that question fully and fairly, taking into account the various factors brought to his notice and concludes that there are no good grounds for allowing a change of plea because the plea represents a free and genuine acknowledgement of guilt, then it is inappropriate for this court to interfere. As stated by Lord Lane CJ in
Drew
[1985] 1 WLR 914 at 923c:
“ … only rarely would it be appropriate for the trial judge to exercise his undoubted discretion in favour of an accused person wishing to change an unequivocal plea of guilty to one of not guilty. Particularly this is so in cases where as here the accused has throughout been advised by experienced counsel.”
54.
Thus, for an appeal to succeed in respect of a trial judge’s exercise of discretion to refuse a change of plea from Guilty to Not Guilty:
“It must be shown that the judge misdirected himself or took account of matters which he should not have taken account of or failed to take account of matters to which he should have had regard or that he exercised his discretion in a wholly unreasonable manner.” see
Hafeiz Sheikh and others
[2004] EWCA (Crim) 492
per Mantell LJ at para 18.
55.
Mr Smith rightly recognised that such could not be shown to be the case in respect of the judge’s ruling on 4 March.
56.
Nonetheless, he submitted that, in relation to the judge’s ruling on 16 June, there is demonstrable an error of principle on the part of the judge in discounting the effect of the revelation in respect of Mr Croft’s liability and the consequent decision of the Crown not to rely upon it at the Newton Hearing. It is submitted that the judge’s observation that the subsequent discovery of misconduct by Croft which post-dated the original “unequivocal and unfettered plea of guilty” did not affect its substance, demonstrates an error of principle, or at least an error of approach, in the light of the observations of the House of Lords in
S v Recorder of Manchester
(above) to the effect that matters which only come to light at the sentencing stage may be prayed in aid of an application to change a plea of Guilty to Not Guilty. Mr Smith relies upon the observations of Lord MacDermott at p.493:
“The evidence relevant to the commission of an offence is generally relevant to the sentence. That part of the hearing which is directed to the sentence may well cast new light on the question of guilt or innocence. I think it is safe to say that this has long been recognised and the tenor of English law has been against erecting any barrier between these two parts or stages which would place them, as it were, in watertight compartments and so reduce the scope of judicial ascertainment and discretion … Every experienced judge knows that, even in uncontested matters, the truth has a habit of emerging in bits and pieces, and that the legal ingredients of the offence charged may not be fully understood by the accused … Once made, a mistaken plea may be properly accepted and the mistake may never stand revealed. But if, as can happen, the truth comes to light during the second stage of the proceedings, when the question of what to do with the accused is under consideration, why should it not be acted upon and a changed plea of Not Guilty allowed where the interests of justice so require?”
57.
Similarly, at p.501, Lord Morris stated:
“If, before the court has completed its task in regard to the case, an application to withdraw the plea is made and if it is made for reasons the court deems valid and which perhaps it had previously had no opportunity of considering, is the court powerless to accede to it? It would be lamentable if that were so. The court might feel that having regard to the reasons advanced it would be wholly wrong to hold a person to some previous acknowledgement of guilt. The desire of any court must be to ensure, so far as possible, that only those are punished who are in fact guilty. The duty of a court to clear the innocent must be equal or superior in importance to its duty to convict and punish the guilty. Guilt may be proved by evidence. But also it may be confessed. The court will, however, have great concern, if any doubt exists as to whether a confession was intended or as to whether it ought really ever to have been made.”
58.
Mr Smith submits that the reference to “the truth” coming to light during the sentencing stage of the proceedings must in practice mean the strength of the prosecution case. He submits that, with Croft abandoned as a witness, Wheatland absent, and only the “second line” witnesses available (they not being regarded as sufficient at the
Newton
hearing to establish that the appellant had kicked the victim), the strength of the prosecution case was reduced to a level at which the advice of Mr O’Connor as to the wisdom of a plea would inevitably have been different. In those circumstances, because it was still open to the appellant to change his plea prior to sentence, he should have been allowed to do so.
59.
We do not accept those submissions. We do not think that any misunderstanding of the proper principle or approach is apparent in the full careful and considered ruling of the trial judge. The judge’s comment that the subsequent discovery of misconduct by Croft did not affect the situation was directed to his observation that the appellant’s plea of guilty was a public and voluntary acceptance by him that he took part in an unlawful attack. The point he was making was that, as matters then stood, nothing had by then happened or was known to the prosecution or defence which affected the apparent veracity of Mr Croft. The judge went on to say that, if the Crown had then been aware of such matters and had not disclosed them, then an argument might have been mounted that such non-disclosure tainted the plea entered because it was given on the basis of evidence which could not be attacked so far as the credit of the witness was concerned. However, that was not the position; so the judge went on to consider whether, in the light of the allegations now made against Croft, there was reason to doubt the ‘truth’ of the charge in relation to the basis upon which the plea was put forward.
60.
He was correct to do so. As this court observed in
McGovern
, 13 February 1998 unreported (9701076/X4):
“What is, of course, highly material is whether or not on the Crown case there was evidence to support the charge in the terms to which the plea was entered and whether or not the instructions given by the defendant at the time the plea was entered were consistent with the basis of the plea being put forward.”
61.
The judge said this:
“When I gave judgment in this matter on the 4
th
March 2003, I said this, “I accept Mr O’Connor’s evidence, complemented by that of Mr Granville-Faul, that Mr Mason was told, in effect, ‘If you plead guilty you must realise that you accept you took part in the assault’. By entering his guilty plea the Defendant was, therefore, acknowledging this, and Mr O’Connor, Queen’s Counsel, was entitled to produce, and to put before the court, the typed document entitled, ‘Basis of Plea’ which accurately reflects what the Defendant had been told would be implicit in his plea.”
62.
The judge went on to consider the apparent truth of the matter in the light of the evidence available to the Crown, even if Mr Croft’s evidence was put on one side. He summed it up in the passage we have already quoted at paragraph 50 above. We do not consider that passage can be faulted or, indeed, improved upon.
63.
Had the position been that events subsequent to the plea, or material which had subsequently come into the possession of the prosecution, negated the basis of the appellant’s plea, or affected it to the extent that it demonstrated or gave rise to doubts whether the basis of plea was correct, or had Croft’s evidence been the sole matter upon which the prosecution relied, the position might well have been different, in that it would have raised doubts as to the correctness of the plea, albeit freely given. However, that was not the case. Had the trial proceeded against all of the defendants without the evidence of Croft, there would nonetheless have been the evidence of the CCTV camera, of the witnesses described at paragraphs 2-16 above, and the undisputed fact that the appellant was throughout accompanying Leanne Beard who had herself been seen kicking the victim and had his blood on her shoes. There was thus not only no objective reason to doubt that the plea was freely given at the time; there was no objective reason to doubt its truth in the sense that the appellant was, at a late stage in the attack, present and participating as set out in his plea, albeit the Crown were accepting in relation to the
Newton
hearing at least, that it was not in a position to prove that the appellant himself kicked the victim.
64.
In the result, the appellant was indeed sentenced upon the basis of his plea, and not upon the basis that he kicked the victim, the very matter which had originally caused him to seek to withdraw his plea once given.
Conclusion
65.
We are wholly satisfied that the judge’s exercise of discretion upon 16 June was correct and that there can be no suggestion of injustice in this case. The appeal against conviction is therefore dismissed.
66.
The appeal against sentence will be dealt with following the handing down of this judgment. | {"ConvCourtName": ["Crown Court at Leeds"], "ConvictPleaDate": ["13 November 2002"], "ConvictOffence": ["manslaughter", "affray"], "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": ["four years’ imprisonment consecutive to a term of four years’ imprisonment which he was already serving"], "SentServe": ["consecutive"], "WhatAncillary": ["data not available"], "OffSex": ["he"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["appellant was too drunk"], "OffVicRelation": ["data not available"], "VictimType": ["Michael Brolly, the eventual victim"], "VicNum": ["Michael Brolly, the eventual victim"], "VicSex": ["his"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["victim, was also drinking"], "ProsEvidTypeTrial": ["CCTV evidence", "post-mortem examination", "evidence of eye witnesses", "video identification parade"], "DefEvidTypeTrial": ["he denied that he had kicked"], "PreSentReport": ["data not available"], "AggFactSent": ["joint enterprise", "multiple injuries sustained"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["three co-defendants"], "AppealAgainst": ["against conviction and sentence"], "AppealGround": ["the judge erred in principle on the established facts and wrongly exercised his discretion"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["against conviction is therefore dismissed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["the judge’s exercise of discretion upon 16 June was correct"]} | {"ConvCourtName": ["Crown Court At Leeds"], "ConvictPleaDate": ["2002-11-13"], "ConvictOffence": ["affray", "manslaughter"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No", "Yes"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Manchester"], "Sentence": ["four years’ imprisonment consecutive to a term of four years’ imprisonment which he was already serving"], "SentServe": ["Consecutive"], "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": ["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": ["Digital", "evidence of eye witnesses", "Medical"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["joint enterprise", "multiple injuries sustained"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["3"], "AppealAgainst": ["against conviction and sentence"], "AppealGround": ["the judge erred in principle on the established facts and wrongly exercised his discretion"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["the judge’s exercise of discretion upon 16 June was correct"]} | 397 |
Neutral Citation Number:
[2016] EWCA Crim 673
Case No: 201406045/B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date: Tuesday, 19th April 2016
B e f o r e
:
LORD JUSTICE GROSS
MR JUSTICE JEREMY BAKER
MR JUSTICE GARNHAM
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R E G I N A
v
KARL RICHARD HEWLETT
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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)
- - - - - - - - - - - - - - - - - - - - -
NON-COUNSEL APPLICATION
1.
MR JUSTICE JEREMY BAKER: In November 2014 the applicant stood trial at Guildford Crown Court in relation to a three-count indictment. At counts 1 and 2 he was charged with racially aggravated intentional harassment, alarm or stress contrary to section 31(1)(b) of the Crime and Disorder Act 1998. At count 3 he was charged with witness intimidation, contrary to section 51(1) of the Criminal Justice and Public Order Act 1994; albeit that this was subsequently amended to allege a count of attempted witness intimidation. On 29th November 2014 he was acquitted by the jury of count 1, but convicted of counts 2 and 3. Thereafter the trial judge sentenced him by way of a 12 month community order with a requirement to complete a total of 200 hours of unpaid work.
2.
Counsel representing the applicant at trial submitted grounds of appeal in support of an application for permission to appeal against his convictions. The application was considered and refused by the single judge. This is the renewed application for leave. The applicant, having dispensed with the services of trial counsel, whom he criticises, has submitted his own 42 page document in support of the renewed application.
3.
The circumstances giving rise to the convictions were that the applicant and complainant in relation to count 2, Pauline Walpole, had been long-term neighbours in a housing complex on Preston Lane, Tadworth. Whereas the applicant is an owner-occupier of his home, Mrs Walpole, is a tenant of the Raven Housing Trust. It is apparent that there has, for many years, been a dispute between the applicant and Mrs Walpole, concerning a boundary fence which has been erected between their two properties. The basis of the prosecution's case was that, on 1st April 2014, a verbal argument took place between the applicant and Mrs Walpole, in the course of which it is alleged the applicant was abusive to Mrs Walpole and called her "pikey". It is alleged that this was witnessed by an employee of the Housing Trust, namely Mario Ajauro who subsequently made a witness statement concerning it. It was the prosecution's case, at count 3, that, on 14th April 2004, the applicant spoke to Mario Ajauro in abusive terms, and in particular sought to get him to withdraw his witness statement by shouting at him in an aggressive manner: "I want you to tell the truth - you're a fucking liar". This being repeated on about two further occasions during the course of the day.
4.
The case presented on behalf of the applicant, in relation to count 2, was that he had not been verbally aggressive towards Mrs Walpole, and that although he may have called her a "gypsy", he did not call her a "pikey". In relation to count 3 the applicant's case was that Mario Ajauro had provided a false account of the events which took place on 1st April 2014 in his witness statement, namely one which supported Mrs Walpole's account, and that subsequently on 14th April 2014 the applicant had politely requested Mario Ajauro to alter his statement in order to provide a truthful account of what had occurred. In particular he had never been aggressive towards him, and never called him "a fucking liar."
5.
In the course of trial, at the conclusion of the prosecution's evidence, an application was made on behalf of the applicant that there was no case for the applicant to answer in relation to count 2, on the basis that the word "pikey" was not capable of referring to a particular racial group. This application was rejected by the trial judge who ruled that the term was capable of referring to a particular racial group, namely Romany gypsies.
6.
The original grounds of appeal were five-found. Firstly, that the trial judge should have acceded to the half-time submission that there was no case to answer in relation to count 2. Secondly, that the conviction at count 3 was unsafe, on the basis that telling someone to tell the truth way incapable of comprising the offence of witness intimidation. In this regard it was submitted that the jury received insufficient legal directions from the trial judge. Thirdly, that the trial judge unnecessarily intervened in order to prevent cross-examination of Mrs Walpole in relation to the history of the dispute between her and the applicant. Fourthly, that the trial judge unnecessarily intervened in relation to cross-examination of Mario Ajauro, and in particular in relation to the differences between his oral evidence and a previous witness statement. Lastly, that the trial judge unnecessarily intervened in relation to the calling of a defence witness, namely Priscilla McManus, and thereby inappropriately permitted the prosecution to call evidence in rebuttal.
7.
The offence of racially aggravated intentional harassment, alarm or distress was introduced by the Crime and Disorder Act 1998. Section 28 of which provides the definition for racial aggravation in relation to offences under section 1(1)(b) of 1989 Act. Section 28(1)(a) provides that:
"(1)An offence is [racially or religiously aggravated] for the purposes of sections 29 to 32 below if—
(a)
at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a [racial or religious group]; or.
(b)
the offence is motivated (wholly or partly) by hostility towards members of a [racial or religious group] based on their membership of that group."
8.
Sub-section 4 defines racial group as meaning: "... a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins."
9.
The Oxford English dictionary defines the word "pikey" as referring to a "gypsy or traveller", and in
Commission for Racial Equality v Dutton
[1989] QB 783, it was held that Romany gypsies are to be recognised as a racial group on the basis of their ethnic origin. In this regard it of course mattered not whether Mrs Walpole was in fact a member of this racial group, provided that there was sufficient evidence that the applicant presumed she was a member of that group. In fact it was the applicant's case at trial that he believed that Mrs Walpole was a gypsy, and indeed referred to her in those terms. Moreover, he acknowledged that: "If you call a person a pikey, that would be racist."
10.
In relation to the first ground of appeal, it is clear that the trial judge was correct to refuse the submission of no case to answer in relation to count 2, on the basis that Romany gypsies are capable of being recognised as a racial group on the basis of their ethnic origin, and that if the jury accepted the evidence of Mrs Walpole and Mario Ajauro, that the applicant had called Mrs Walpole a "pikey", this was capable of being a pejorative reference to Romany gypsies. Thereafter the trial judge provided the jury with appropriate legal directions as to the matters upon which they had to be satisfied in order to convict the applicant of count 2, such that this ground of appeal is unarguable.
11.
In the course of cross-examination the witness Mario Ajauro stated, that although the applicant had said the words attributed to him, they had not in fact had the effect of intimidating him. It was in these circumstances that the count was amended to one of attempted witness intimidation, in accordance with what had been expressed by Thomas LJ (as he then was) in
R v NZ
[2013] 2 Cr App R(S) 25. In relation to the second ground of appeal there was a clear issue of fact for the jury to determine as to the words spoken by the applicant. However, in the event that the jury was sure that the applicant had used the words alleged by Mario Ajauro, then provided the jury was also satisfied that the applicant had the requisite intent under section 51(1)(c), the words were clearly capable of comprising the offence of attempted witness intimidation. Once again the trial judge gave appropriate directions as to the elements of the offence which had to be proved by the prosecution between pages 8A to 10A of the transcript, and supplemented this with a written route to verdict which was correct in law. In particular he emphasised the need for the jury to be satisfied that not only were the words used by the applicant those attributed to him Mario Ajauro, but that the applicant thereby intended to cause the course of justice to be obstructed, perverted or interfered with. Accordingly this ground of appeal is unarguable.
12.
In relation to the remaining grounds not only do we have the benefit of trial counsel's original grounds of appeal, but also a written respondent's notice, and, following waiver by the applicant, a written response to grounds of appeal by trial counsel.
13.
In relation to the third ground, although the dispute between the applicant and Mrs Warpole concerning the boundary fence provided the context for the events which happened on 1st and 14th April 2014, it was unnecessary for extensive evidence to be provided in relation to it. We are satisfied from having read the summing-up, and other documentation in this case, that the defence were allowed to appropriately explore its history. However, we are equally satisfied that the trial judge was right to intervene to prevent the jury from being burdened with overly long explanations of issues which were not at the heart of the matters which they had to determine.
14.
In relation to the fourth ground, the main focus of cross-examination was to highlight the fact that in contrast with his evidence at trial, in Mario Ajauro's previous witness statement, he had not alleged that the applicant used the word "fucking" in the course of their verbal exchanges. We are satisfied that this matter was adequately dealt with before the jury and in particular at page 20D-E of the transcript, the trial judge specifically reminded the jury as to the omission of this word from Mario Ajauro's previous witness statement.
15.
In relation to last of the original grounds of appeal, the witness Priscilla McManus was the sister of the applicant who, when she gave evidence, stated that she had been present during the course of the incident on 1st April 2014, and provided an account which supported that of the applicant. It would appear that neither Mrs Walpole nor Mario Ajauro had been cross-examined as to the presence of the applicant's sister. It was on this basis that the trial judge permitted the prosecution to recall those witnesses so that this matter could be dealt with. We do not consider this was inappropriate, this matter ought to be explored in cross-examination, and the fact that prior to recalling those witnesses the prosecution may have been provided a copy of the sister's witness statement does not seem to us to have adversely effected the applicant's position.
16.
Although we, as was the single judge, are satisfied that there is no merit in any of the grounds raised by trial counsel, we have also considered the contents of the written document provided by the applicant in support of his application to renew. We note that the vast majority of this document comprises a detailed history of the dispute between the applicant and Mrs Walpole concerning the boundary fence between the properties. Moreover, there is also detailed account of more recent events concerning the dispute post conviction. However, in addition, complaint is made about the conduct of trial counsel and the judge. In relation to the latter, much is repetitious of the original grounds of appeal. However, it is also asserted that the trial judge was biased. In this regard it is pointed out that in the course of his summing-up the trial judge referred to the fact that the birthday of Mrs Walpole took place during the course of the trial. We have seen the reference to that in the course of the summing at page 12E-F of transcript. This was a reference said in passing to the fact that, although Mrs Walpole had been 74 years of age at the time of the alleged offences, she was now 75 years of age. We see nothing wrong in the reference to the fact that she had a recent birthday, nor was it said in terms that would have engendered any sympathy for her on the part of the jury. We have carefully read the summing-up and are quite satisfied that there is no evidence of bias on behalf of trial judge arising from this or any other matter raised by the applicant.
17.
In relation to the criticisms of trial counsel it is suggested that he made insufficient effort to investigate and place the history of dispute about the boundary fence before the jury. As we have already observed, the history of the dispute concerning the fence was not at the heart of this case, and we are satisfied that sufficient detail of it was provided to the jury in order for them to be able to set the events for the 1st and 14th April 2014 in their proper context. We do not consider there are any arguable grounds for criticism in relation to the conduct of the trial by counsel who was then instructed to represent the applicant, arising out of this, or any other matter raised by the applicant.
18.
In these circumstances, we do not consider that either in the application or in the more recent documentation provided by the applicant in support of his renewed application, are there any arguable grounds of appeal and accordingly this renewed application is refused.
19.
In view of our decision, we have decided that this is an appropriate case to make an order under section 18(6) of the Prosecution of Offences Act 1995 for the applicant to pay the reasonable costs of the transcript in this case, and we make the order in sum of £40. | {"ConvCourtName": ["Guildford Crown Court"], "ConvictPleaDate": ["November 2014"], "ConvictOffence": ["attempted witness intimidation", "racially aggravated intentional harassment"], "AcquitOffence": ["racially aggravated intentional harassment"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Guildford Crown Court"], "Sentence": ["12 month community order with a requirement to complete a total of 200 hours of unpaid work."], "SentServe": ["data not available"], "WhatAncillary": ["order in sum of £40.", "12 month community order with a requirement to complete a total of 200 hours of unpaid work."], "OffSex": ["he"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["housing complex on Preston Lane,"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["long-term neighbours"], "VictimType": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["housing complex on Preston Lane,"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["witness statement"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["applicant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["renewed application for leave."], "AppealGround": ["conviction at count 3 was unsafe,", "trial judge unnecessarily intervened"], "SentGuideWhich": ["51(1) of the Criminal Justice and Public Order Act 1994", "section 31(1)(b) of the Crime and Disorder Act 1998"], "AppealOutcome": ["renewed application is refused."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["any arguable grounds of appeal"]} | {"ConvCourtName": ["Guildford Crown Court"], "ConvictPleaDate": ["2014-11-01"], "ConvictOffence": ["attempted witness intimidation", "racially aggravated intentional harassment"], "AcquitOffence": ["racially aggravated intentional harassment"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Guildford Crown Court"], "Sentence": ["12 month community order with a requirement to complete a total of 200 hours of unpaid work."], "SentServe": ["data not available"], "WhatAncillary": ["order in sum of £40.", "12 month community order with a requirement to complete a total of 200 hours of unpaid work."], "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": ["data not available"], "VicNum": ["data not available"], "VicSex": ["data not available"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Witness"], "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"], "AppealGround": ["trial judge unnecessarily intervened", "conviction at count 3 was unsafe,"], "SentGuideWhich": ["51(1) of the Criminal Justice and Public Order Act 1994", "section 31(1)(b) of the Crime and Disorder Act 1998"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["any arguable grounds of appeal"]} | 254 |
Case Nos: 2012/01967/C5 & 2012/02098/C5
Neutral Citation Number:
[2013] EWCA Crim 261
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SOUTHAMPTON
HIS HONOUR JUDGE BURRELL QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
13/03/2013
Before :
PRESIDENT OF THE QUEEN'S BENCH DIVISION
MRS JUSTICE SWIFT
and
MR JUSTICE MACDUFF
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
Respondent
- and -
Daniel Michael Plunkett
and
James George Plunkett
Appellants
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- - - - - - - - - - - - - - - - - - - - -
T C Hunter
for the
Appellant (Daniel Plunkett)
M J Farmer
for the
Appellant (James Plunkett)
R Welling
for the
Respondent
Hearing date : 19 February 2013
- - - - - - - - - - - - - - - - - - - - -
Judgment
President of the Queen's Bench Division :
1.
The applicants (Daniel Plunkett and James Plunkett) were on 13 March 2012 convicted of aggravated burglary, false imprisonment and possession of a firearm at the Crown Court at Southampton before HHJ Burrell QC and a jury. They were sentenced to imprisonment for public protection with a minimum term of 10 years being specified. Their application for leave to appeal against conviction and sentence has been referred to the Full Court by the Registrar.
2.
The issue in the appeal against conviction is whether the judge should have admitted evidence of statements and admissions made by them in a police van which were covertly recorded on three occasions. It is contended by the applicants that the recordings were made unlawfully, as they were not made in accordance with the powers under the
Regulation of Investigatory Powers Act 2000
(RIPA) and breached Article 6(3)(b) of the European Convention on Human Rights (the Convention). The evidence should, therefore, have been excluded under
s.78
of the
Police and Criminal Evidence Act 1984
(PACE).
3.
It is necessary first to set out the matters giving rise to the charges and the evidence adduced at the trial.
I
The evidence against the applicants
(i)
The burglary and false imprisonment
4.
On 5 November 2010, three men dressed as policemen knocked on the door of the house of Mr and Mrs Butt and their two teenage sons in Southampton. The men forced their way into the property, tied up each of the family members with handcuffs and cable ties and subjected them to a terrifying experience. The wife and sons were taken upstairs and watched by one of the men. Mr Butt was threatened and ordered to open his safes. It appears that the barrel of a gun was pushed against his head; one of the attackers produced a syringe containing red liquid which they told him was HIV infected blood. Although he was terrified enough to open the safes, after he had done so, one of the assailants cruelly inserted the needle of the syringe into his bottom, although he did not actually inject the fluid.
5.
Before leaving the assailants threatened to torture the children and then kill them in front of Mr Butt as well as killing him, if he or the family reported the crime. The assailants then made off with valuable watches, including a Jacobs & Co watch, a ring and cash in an amount of about £37,000. No complaint was made by Mr Butt or his family until some time between 15 and 30 March 2011.
(ii)
The discovery of evidence linking James Plunkett and Daniel Plunkett to the
crime
6.
Although the police had received no complaint from the Butt family, as a result of intelligence received by the police from other sources, the police searched the applicants’ home address in Portsmouth on 29 January 2011. They found at the house, cable ties, handcuffs, police shirts, body armour, a tracker device, syringes, a balaclava, high definition binoculars, a laptop and the Jacobs & Co watch which had been taken from Mr Butt. James Plunkett who was present at the time of the search was arrested on suspicion of conspiracy to rob, but not in relation to Mr Butt. He gave various explanations for the possession of the objects and was released without charge.
7.
On 21 February 2011, the police searched a garage in Fareham which had been rented by Daniel Plunkett. The police found three metal chests which they were able to unlock. The chests contained a shotgun cartridge, police stab vests, other police equipment and clothing, some mock warrant cards, a balaclava, and some latex gloves similar to those worn by the intruders. They also found top up cards for tracker devices and a set of “quick cuffs” similar to those described by Mr Butt and his family and a black satchel similar to one described by Mr Butt as being carried by one of the attackers; in the satchel was a sawn off shotgun, a syringe containing red liquid similar to that described by and used on Mr Butt and a glove. They found some more cable ties, a shotgun which had been shortened, cartridges and a metal door enforcer.
8.
Daniel Plunkett’s DNA was found on a police shirt and glove in the satchel recovered from the garage. One of the tracking devices was subsequently found to have been used to track a man called Terry Radcliffe who was a friend of Mr Butt. The tracker history was consistent with a visit to the area where the Butt family lived at the time of the burglary. Two mobile phones which were recovered were found subsequently to have been used in the area of the Butt family home on the night of the attack.
(iii)
The covert recording on 16 May 2011
9.
On 11 March 2011 the applicants were sentenced to a term of six years imprisonment for the production of cannabis; James Plunkett received a consecutive sentence of 12 months for possession of a shotgun without a certificate. They were both imprisoned at Camp Hill on the Isle of Wight.
10.
On 16 May 2011 they were arrested at the prison on suspicion of aggravated burglary at the home of Mr Butt. Disclosure was given to each of them about certain elements of the offence in the following terms:
“You have been arrested along with two other males on suspicion of an aggravated burglary, the offence under police investigation took place approximately 11.00pm 5
th
November in ….., Southampton. At the time of the offence the house was occupied by Geoff and Natalie Butt, and two teenage sons. The victims have described three males dressed in police uniforms, forcing their way into the property. The occupants have described being bound with cable ties and handcuffs, whilst the offenders stole cash and jewellery, including a Jacobs watch. Geoffrey Butt described being assaulted with what he was told was an HIV infected syringe. The victims have provided statements and descriptions of the offenders. The police will be making a request for you to take part in an identification procedure. On 29
th
January this year the home address of James and Daniel Plunkett was searched at […..]. The police seized a number of items, including police uniforms and a Jacobs & Co watch. It is believed this is the watch that was stolen.”
Nothing was said about the search of the garage, the items found there or about the needle being put into Mr Butt’s bottom.
11.
Neither was told specifically that they would have access to legal advice at the police station, but we infer from what they knew of the criminal justice system that they must have known this.
12.
Both applicants were put into a police van to be taken from Camp Hill to the police station at Newport, a journey of about 10 minutes. They were accompanied by two police officers who sat in the front of the van; there was a partition between the police driver and the other policeman in front of the van and the applicants in the rear. When the van got to the police station, they were left in the van on their own for 15 minutes, as part of a built-in delay. They were returned to prison in the same van with a similar delay being built in.
13.
During the journey to the police station and when they were left on their own in the vehicle after arrival at the police station and on the return journey to the prison, both applicants made compromising admissions and statements. They referred to the man called Terry whose vehicle had been tracked, to the use of the syringe stuck into Mr Butt’s bottom, to the use of stab-proof vests, to the use of gloves and to the carrying of a shotgun; what was said was in part an attempt to agree an account to explain matters and in part significant admissions that clearly pointed to their guilt.
14.
At the police station, the applicants were afforded access to legal advice. They asked for a solicitor who arrived at 12:19. James Plunkett was interviewed in the presence of their solicitor between 13:42 and 14:39; Daniel Plunkett between 14:57 and 15:35.
15.
During the course of the formal interviews some further disclosure was made, including disclosure of the seizure of the computer and mobile phones. Both answered ‘no comment’ to the questions. After the interview, both were handed forms setting out the descriptions that the victims had given; they were then placed in the van and their conversation was covertly recorded, as we have already set out.
(iv)
The second covert recording
16.
On 6 June 2011 a further search of the home of the applicants’ parents was made; more items including police vests, handcuffs and police badges were found.
17.
On 7 June 2011 the applicants were taken from prison to the police station for a further interview. They were given further disclosure.
“On 23/02/11 police searched garage 6, …………, Fareham. Seized documentation shows that garage is rented by Daniel Michael PLUNKETT of ………..
•
Rental agreement attached (exhibit SM/G643SR/14)
Inside of the garage police recovered a number of items suspected of being used in the commission of the burglary at [the Butts’ home].
Police will be looking to obtain an account from the DP in relation to his connection to the garage and the items recovered.”
The method of transportation, the pre-planned delay of 15 minutes and the covert recording were the same as on the prior occasion. On the way to the police station the applicants discussed what they were going to say about the garage and how they had tried to pass what was found on to someone else. They talked about their parents’ house being searched and about the uniforms.
18.
They were given time to see their solicitor after being taken into the police station. They were interviewed at length in the presence of their solicitor. They again answered ‘no comment’. They were given no more information.
19.
On the way back they made compromising admissions, including a detailed reference to one of them having injected Mr Butt precisely as alleged and also to having followed Mr Butt to his home address prior to the burglary.
(v)
The third covert recording
20.
On 8 June 2011 they travelled in a similar manner for a further interview. In the conversation on the way there they mentioned Terry, the black satchel and the trackers. They again were given access to their solicitor before interview. They answered ‘no comment’ at the interviews. They were told at the interviews of the fact that there had been covert recordings. No covert recording was made during the return journey to the prison.
(vi)
The other evidence
21.
The Crown’s case rested not only upon the covert recordings but also on the circumstantial evidence relating to what had been found at the applicants’ home and at the garage and cell site evidence derived from the phones found at the garage. The judge in the course of his summing up set out 14 points for the jury to consider in relation to the connection between the items found in the garage and in the applicants’ house.
22.
The laptop found at the applicants’ home was analysed; it showed that internet searches had been made prior to 5 November 2010 for police issue equipment and the home address of Mr Butt.
23.
In addition to that evidence, there was some evidence of identification. Neither of the applicants was picked out on an identification parade; descriptions were given of the assailants by the Butt family. There was a dispute as to the extent to which they fitted the applicants.
24.
James Plunkett gave evidence that he and his brother had rented the garage from another person, Richard Newman, to house expensive power tools. Some time prior to January 2010, because they did not need to store their tools there, they rented out the garage to someone called “Neil”. Neil introduced some men who wanted to rent the garage in about September 2010. The men subsequently told them that they had carried out the burglary on Mr Butt’s house; James Plunkett was not prepared to name them as he believed they were dangerous. He explained the statements made during the covert recordings on the same basis. Daniel Plunkett did not give evidence.
II
The admissibility of the evidence obtained through covert surveillance
25.
The contentions made on behalf of the applicants can be summarised as follows:
i)
Under RIPA a distinction is drawn between surveillance which is “directed surveillance” and surveillance which is “intrusive surveillance”. The surveillance was intrusive as it was carried out in relation to matters taking place in a private vehicle.
ii)
The authorisation for the surveillance had been given by a Detective Superintendent; authorisation for intrusive surveillance required authority from the Chief Constable. As the surveillance was intrusive, no proper authority had been given.
iii)
Whether the surveillance was directed or intrusive, authorisation could not be given unless the officer believed the surveillance was necessary and proportionate. The surveillance was neither necessary nor proportionate.
iv)
The first covert recording was made before they had seen their solicitor; the disclosure made provoked discussion. They were therefore not afforded adequate time and facilities for the preparation of their defence in breach of Article 6(3)(b) of the Convention.
v)
The evidence should therefore have been excluded under the provisions of
s.78
of PACE.
26.
It was the case for the Crown, in summary, that:
i)
The police van was not a private vehicle.
ii)
The surveillance was directed surveillance and properly authorised by the Detective Superintendent under s.28 of RIPA.
iii)
The search was both necessary and proportionate.
iv)
There was no breach of Article 6(3)(b) of the Convention.
v)
There was nothing that prevented the admissibility of the evidence; the convictions were safe.
27.
We turn to consider the issues:
(i)
Was the surveillance directed or intrusive?
28.
The first question is whether the surveillance was directed or intrusive. The surveillance had been authorised by Detective Superintendent Shand who gave evidence to the judge. He was of the rank entitled to authorise directed surveillance, but not intrusive surveillance (see s.28 of RIPA).
29.
The definitions of directed and intrusive surveillance are set out in s.26 of RIPA:
i)
s.26(2) defines directed surveillance.
“Subject to subsection (6), surveillance is directed for the purposes of this Part if it is covert but not intrusive and is undertaken –
(a)
for the purpose of a specific investigation or operation;
(b)
in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and
(c)
otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Part to be sought for the carrying out of the surveillance.”
ii)
s.26(3) sets out the distinction between directed and intrusive surveillance.
“(3) Subject to subsections (4) to (6), surveillance is intrusive for the purposes of this Part if, and only if, it is covert surveillance that –
(a)
is carried out in relation to anything taking place on any residential premises or in any private vehicle; and
(b)
involves the presence of an individual on the premises or in the vehicle or is carried out by means of a surveillance device.”
iii)
The definition of a private vehicle is set out in s.48(1):
“private vehicle” means (subject to subsection (7)(a)) any vehicle which is used primarily for the private purpose of the person who owns it or of a person otherwise having the right to use it;”
S.48(7)(a) contains nothing material to the present appeal.
30.
The sole point taken on behalf of both applicants to establish that the surveillance was intrusive surveillance was that the police vehicle was a private vehicle; if that contention was correct the surveillance was not directed surveillance and would not have been properly authorised under RIPA.
31.
The police vehicle in which the recordings were made was a van owned by the Hampshire Constabulary and used solely for police purposes. Taking the ordinary meaning of the definition, the police vehicle was not a private vehicle; it was owned by a state entity and it was not being used for private purposes, but for the purposes of the state.
32.
However it was contended on behalf of the applicants that the words did not bear this ordinary meaning and should be construed in the light of the observations made by Lord Woolf CJ in
R v Mason
[2002] EWCA Crim 385
[2002] 2 Crim App R 38. Covert recordings had been made in police cells at a time when RIPA had been enacted, but was not in force. Lord Woolf observed at paragraph 68:
“… paragraph 4.3 of a draft code of practice [to be issued under s.71 of RIPA] indicates that a prison cell is within the definition of residential premises. We have heard no argument as to this but even if a prison cell falls within the definition, it does not follow that a police cell is necessarily residential. Further clarification is in our judgment desirable, though we recognise that the existence of
RIPA
has materially improved the situation and it is certainly desirable that what happens in police cells be treated as intrusive surveillance.”
33.
We can see the force of an argument that a police cell in which a person sleeps should be treated in the same way as a prison cell in the light of the definition of residential premises contained in s.48(1):
“residential premises” means (subject to subsection (7)(b)) so much of any premises as is for the time being occupied or used by any person, however temporarily, for residential purposes or otherwise as living accommodation (including hotel or prison accommodation that is so occupied or used).”
Furthermore paragraph 2.16 of the Code of Practice, 2010 revision, made under s.71 of RIPA refers to a police cell being used as temporary prison accommodation as an example of residential accommodation
34.
However we can see no reason for treating a police van in a way similar to that. There is nothing in the Code of Practice to support such a suggestion and there is no reason why the ordinary meaning of the words of
the Act
should not apply.
(ii)
Was what was authorised necessary?
35.
Under s.28(2) of RIPA the person authorising directed surveillance must believe:
(a)
that the authorisation is necessary on grounds falling within subsection (3); and
(b)
that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.
36.
One of the grounds set out in subsection (3) is that it is necessary for “the purpose of preventing or detecting crime or of preventing disorder.”
37.
The judge heard evidence from Detective Superintendent Shand and Police Constable Lage (who made the application to the Detective Superintendent). He considered their evidence and the other evidence relevant to necessity and proportionality on a
voir dire
.
38.
The judge found that it was necessary. Although a certain amount of circumstantial evidence had been collected by the time of the authorisation of the covert surveillance, the police did not at that stage have the analysis of the computer or the cell site evidence. That would have taken some time to obtain. The judge considered that time was of the essence given the severity of the attack on the Butt family, the evident fear they had exhibited by not reporting the burglary and the risk to them; the threat to their lives was still extant and real. He accepted the evidence of Detective Superintendent Shand to that effect; the Butts needed protection, covert surveillance would assist and it was not right to wait and see what happened. One of the attackers was at large and the evidence against those in custody was circumstantial. In addition the applicants had mentioned in the covert recordings on 16 May 2011 a man called Paul Smith as someone they wanted to harm as he was suspected of informing on them. That was a significant factor for the authorisation of the second and third covert recordings.
39.
It was not disputed before us that the burglary of the Butt household and the terrifying attack to which they were subjected was conduct that a civilised society cannot tolerate. It must have been the case, as the judge found, that the Butt family were terrified, as they had not reported the attack for some months. Those who had carried out the attack were persons plainly prepared to resort to the most serious violence and could be regarded as exceptionally dangerous. The judge was fully entitled to find that the Detective Superintendent believed that the surveillance was necessary and that there were indeed very strong objective grounds for that belief. The judge was right. Establishing who the attackers were was, in our judgment, plainly necessary.
(iii)
Was what was authorised proportionate?
40.
It is not enough that the surveillance is believed to be necessary; it must also be believed to be proportionate. Paragraph 3.6 of the Code of Practice sets out matters to which regard should be had in considering proportionality:
•
balancing the size and scope of the proposed activity against the gravity and extent of the perceived crime or offence;
•
explaining how and why the methods to be adopted will cause the least possible intrusion on the subject and others;
•
considering whether the activity is an appropriate use of the legislation and a reasonable way, having considered all reasonable alternatives, of obtaining the necessary result;
•
evidencing, as far as reasonably practicable, what other methods had been considered and why they were not implemented.
41.
The judge found that the Detective Superintendent had considered alternatives such as recording the applicants in their cells or using a Covert Human Intelligence Source (CHIS), but that these would take more time to organise and be more intrusive. He had limited the periods of built-in delay to 15 minutes. The threat to the Butt family was real.
42.
The judge concluded that not only had the Detective Superintendent considered the surveillance authorised proportionate, but it was in fact proportionate.
43.
It was submitted that the police should have waited until the computer had been examined and the cell site analysis obtained; that it was obvious to the police that if they provided some disclosure and left the applicants together in the van, the applicants would discuss what they had to say.
44.
We cannot accept these submissions. The judge was entitled to conclude that Detective Superintendent Shand believed that the surveillance was proportionate and that it was in fact proportionate. As we have said, the threat to the Butt family was real; it was not proportionate to wait for the examination of the computer and cell site analysis.
(iv)
Was there a breach of Article 6 (3)(b) of the Convention?
45.
Article 6(3)(b) of the Convention guarantees the accused “adequate time and facilities for the preparation of his defence”. It is clear from the case law of the Strasbourg court that the rights of an accused under the provision may comprise “everything that is necessary to prepare for the main trial” (see
Natuen v Finland
(2009) 49 EHHR 32 at paragraph 42). This will include the opportunity for the accused to acquaint himself with the material relied on by the prosecution and the results of the investigation (see
Mayzit v Russia
[2005] ECHR 63378/00 and
CGP v The Netherlands
[1997] ECHR 29835/96), the disclosure of material (
Natuen)
and adequate time to do this (see for example
Kornev v Ukraine
[2010] ECHR 17444/04).
46.
The judge considered that the applicants had time and facilities to prepare their defence and had appropriate representation. There was no breach of Article 6. If there was a breach of their right to privacy under Article 8, it was plainly justified; the issues under Article 8 were not pursued before us.
47.
It was submitted to us that the provisions of Article 6(3)(b) extended to prevent the use of disclosure before interview to provoke incriminating conversations about what the accused might say in interview in response to the allegations. What had been done was akin to tape recording conversations with their solicitors.
48.
These submissions have no foundation in fact or law. There was plainly no breach of the confidentiality between an accused and his lawyer; the applicants must have known they would be entitled to legal advice before interview. There was no denial of adequate time and facilities to prepare their defence. They would have plenty of time for discussion with their solicitor as in fact they had. There has been no complaint about the adequacy of the time to prepare for their trial or about the disclosure made to them in the course of preparation for the trial.
49.
There was no infringement of Article 6(3)(b).
(v)
Should the evidence have been excluded under
s.78
of the
Police and Criminal Evidence Act 1984
?
50.
Even though in our judgment what was done was lawful, it is necessary to consider whether the judge exercised his discretion correctly in declining to exclude the evidence under
s.78
of PACE. He found that the surveillance was not, as had been submitted to him, “a cynical attempt to circumvent the PACE procedures and, in particular, the right to silence”. He found it was not a trick or manipulation of the process. He concluded that there was no oppression, no inducement, no misrepresentation and no entrapment. There had been no wrong doing and no lies had been used to obtain the admissions. The evidence had been obtained lawfully; there was no breach of Article 6. He did not consider that there was anything which prevented the applicants having a fair trial.
51.
It is clear from the cases that, at common law, covertly recorded evidence was in principle admissible, but could be excluded under
s.78
.
52.
In
R v Bailey and Smith
(1993) 97 Cr App R 365
, the appellants made admissions when they were covertly recorded in a bugged cell, into which they had been placed following arrest, for the predominant purpose of giving them the opportunity to talk together. After a thorough review of the authorities, Simon Brown LJ in giving the judgment of the court concluded that the evidence was admissible and the judge was right in not excluding it under
s.78
; in particular there had been no breach of the spirit of the PACE codes which protected the right to silence. The court followed the decision in
Shaukat Ali (
Times, 19 February 1991
)
.
53.
In
Khan
[1997] AC 358
, the House of Lords held that evidence obtained by bugging a private residence should not have been excluded. The focus of the enquiry under
s.78
must be the effect on the fairness of the proceedings, as Lord Nolan held at page 582:
“But if the behaviour of the police in the particular case amounts to an apparent or probable breach of some relevant law or convention, common sense dictates that this is a consideration which may be taken into account for what it is worth. Its significance, however, will normally be determined not so much by its apparent unlawfulness or irregularity as upon its effect, taken as a whole, upon the fairness or unfairness of the proceedings.”
54.
The Strasbourg court in
Khan
(2001) 31 EHHR 1016 also made clear that despite a breach of Article 8, the central question was whether the proceedings as a whole were fair. In
R v P
[2002] 1 AC 146
, Lord Hobhouse giving the sole substantive judgment again emphasised that the critical question was the fairness of the trial.
55.
There was a further point not taken before the judge, but to which it is next convenient to refer. Under s.30 (1A) of PACE a person arrested “
must be taken by a constable to a police station as soon as practicable after the arrest.” However, s.30(10) provides that nothing in s.30 (1A) prevents a constable delaying taking a person to a police station or releasing him on bail if the condition in subsection (10A) is satisfied; that subsection states:
“The condition is that the presence of the person at a place (other than a police station) is necessary in order to carry out such investigations as it is reasonable to carry out immediately.”
56.
In the hearing before us, the applicants contended that there had been a breach of s.30(1A). As the issue had not been raised before the judge, he had made no findings. We were told that no one had thought of the point; the trial was before the decision in
R v King and Provan
[2012] EWCA Crim 805
where these provisions were considered. It is difficult to see how this court can resolve this issue of fact, as it had not been raised before the trial judge.
57.
In
King and Provan
, the appellants had been left in a police car at the place they were arrested and in the short period in which they were together in the car, they made incriminating admissions which were covertly recorded. They sought to have the conversations excluded under
s.78
, as there had been a breach of s.30. The trial judge concluded that on the facts of that case there was no delay, but if there had been it was impracticable to have avoided it and the evidence would have been admitted. The court held that the findings of the judge could not be challenged. The court observed at paragraph 26 that:
“the deliberate flouting of a statutory duty for the purpose only of creating a covert recording may, depending on the circumstances, result in the exclusion of the evidence.”
In the circumstances of that case, the court held that it had not been shown that the judge was wrong in concluding that the fairness of the trial had not been affected. In reaching that conclusion, the court took into account:
“i) During the period of an hour while [the appellants] were under arrest and awaiting developments they remained under the supervision of police officers who, as instructed, did not engage them in conversation about their arrest;
ii) The placement of the accused in the same police car provided no more than an opportunity for them to speak together in the belief that they were not being overheard;
iii) No trick or subterfuge was practised upon the accused so as to lead them to believe that they must make some response to their arrests;
iv) The covert recording took place before interview under caution but that fact placed them at no greater disadvantage than if they had been covertly recorded in police custody after interview under caution (c.f.
Bailey and Smith
).”
58.
In our judgment, even if there had been a breach of RIPA or of s.30(1A) of PACE, the breaches would have been minor, given the immense seriousness of the crime and the need to protect the Butt family. There was nothing in what the police did that called into question the integrity of the criminal justice system.
59.
Against those observations, we turn to consider the central question of the fairness of the trial. The judge rightly held that there had been no misrepresentation, entrapment or other conduct that could be characterised as misbehaviour; the police had simply afforded the opportunity to the applicants to talk together. There was nothing to suggest that what was said by the applicants during the conversations was anything other than true. They had full opportunity to test all the other evidence in the case and to provide an explanation of the conversations in the van.
60.
We conclude that the judge was entitled to exercise the discretion under
s.78
as he did. Not only was it within that ambit of discretion open to him, but he was correct in exercising it as he did. Even if, contrary to the views both the judge and this court has formed, there had been breaches of RIPA or s.30(1A) of PACE, the evidence was properly admitted and there was no ground to exclude it under
s.78
.
(vi)
Were the convictions safe?
61.
The covert recordings established beyond any doubt that the applicants had been those responsible for the burglary and the attack on the Butts. However, it was contended by the Crown that, even if we reached the conclusion that the evidence in the covert recordings ought not to have been admitted, the conviction was nonetheless safe.
62.
At the time the covert recordings were made there was no analysis of the computer found in the garage or cell site analysis of the phone calls. In our judgment, that evidence taken with the evidence of what was found on the searches would have provided a sufficiently strong case for us to be satisfied that there could be no reasonable doubt about the safety of the convictions.
Conclusion
63.
Although we will grant leave to appeal in the light of the arguments raised, we dismiss the appeal.
III:
The applications for leave to appeal against sentence
64.
We turn to the applications for leave to appeal against sentence.
65.
The judge imposed the sentence of imprisonment for public protection for the count of aggravated burglary. He passed no separate sentence for the false imprisonment or the possession of the firearm. No time was served on remand, as both applicants were already serving a sentence of imprisonment when first arrested for these offences.
66.
The first complaint made was that the judge did not indicate that he had in mind passing a sentence of imprisonment for public protection. Although it is in general necessary for a judge to indicate in cases where the imposition of such a sentence might be unexpected, it was obvious in this case that any judge would have clearly in mind the passing of an indeterminate sentence. The circumstances of the burglary and attack were such that on their own it was self evident that both offenders were highly dangerous and highly likely to commit further very serious offences. Neither advocate asked for a report and none was necessary. Had reports been asked for, they would no doubt have contained the same conclusions as the reports ordered for us; those reports made clear (without taking into account what happened after sentence) the real and serious danger both applicants posed.
67.
There can be no possible grounds for suggesting that the sentence of imprisonment for public protection was not entirely appropriate in the case of both applicants.
68.
The minimum term passed equated to a determinate sentence of 20 years. This was in excess of the range set out in the relevant guidelines issued by the Sentencing Council for a category 1 offence of aggravated burglary; that range is 9-13 years. Parliament provided for a maximum sentence of life imprisonment. This was plainly a case where the interests of justice would have required a very severe determinate sentence. The circumstances of the offence and its effect on the Butt family have been set out. We see no basis for arguing that the minimum term was wrong in principle or manifestly excessive. 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["Mr and Mrs Butt and their two teenage sons"], "VicNum": ["Mr and Mrs Butt and their two teenage sons"], "VicSex": ["Mr and Mrs"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["house of Mr and Mrs Butt"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["DNA", "evidence of identification", "police searched", "covert recording"], "DefEvidTypeTrial": ["James Plunkett gave evidence"], "PreSentReport": ["data not available"], "AggFactSent": ["offenders were highly dangerous", "made off with valuable watches"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellants"], "CoDefAccNum": ["Appellants"], "AppealAgainst": ["against conviction and sentence"], "AppealGround": ["admissibility of the evidence", "whether the judge should have admitted evidence of statements"], "SentGuideWhich": ["s.78 of the Police and Criminal Evidence Act 1984 (PACE).", "guidelines issued by the Sentencing Council for a category 1 offence of aggravated burglary", "breached Article 6(3)(b) of the European Convention on Human Rights (the Convention)", "Regulation of Investigatory Powers Act 2000 (RIPA)"], "AppealOutcome": ["refuse leave to appeal against sentence.", "dismiss the appeal."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["taken with the evidence of what was found on the searches would have provided a sufficiently strong case", "no basis for arguing that the minimum term was wrong in principle or manifestly excessive"]} | {"ConvCourtName": ["Crown Court At Southampton"], "ConvictPleaDate": ["2012-03-13"], "ConvictOffence": ["possession of a firearm", "false imprisonment", "aggravated burglary"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No", "Don't know"], "PleaPoint": ["data not available"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Southampton"], "Sentence": ["Both"], "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": ["Don't know"], "OffVicRelation": ["Stranger"], "VictimType": ["Individuals"], "VicNum": ["4"], "VicSex": ["Mixed"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Don't know"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["evidence of identification", "Digital /video", "Forensic", "Police evidence"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["offenders were highly dangerous", "Financial gain /value"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["1"], "AppealAgainst": ["against conviction and sentence"], "AppealGround": ["admissibility of the evidence", "Admissibility of evidence"], "SentGuideWhich": ["guidelines issued by the Sentencing Council for a category 1 offence of aggravated burglary", "s.78 of the Police and Criminal Evidence Act 1984 (PACE).", "breached Article 6(3)(b) of the European Convention on Human Rights (the Convention)", "Regulation of Investigatory Powers Act 2000 (RIPA)"], "AppealOutcome": ["Dismissed-Failed-Refused", "Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["no basis for arguing that the minimum term was wrong in principle or manifestly excessive", "taken with the evidence of what was found on the searches would have provided a sufficiently strong case"]} | 517 |
Neutral Citation Number
[2018] EWCA 320 (Crim)
Case No:
201800451/B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 13 February 2018
B e f o r e
:
LORD JUSTICE HOLROYDE
MRS JUSTICE ELISABETH LAING DBE
HIS HONOUR JUDGE AUBREY QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - -
R E G I N A
v
ABENA ATTA-DANKWA
- - - - - - - - - - - - - - - -
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)
- - - - - - - - - - - - - - - -
Ms A Jones
appeared on behalf of the
Appellant
Ms C Bradley
appeared on behalf of the
Crown
J U D G M E N T (Approved)
1.
LORD JUSTICE HOLROYDE: On 3rd January 2018 in the Crown Court at Northampton, Abena Atta-Dankwa was convicted of assault by beating, contrary to
section 9 of the Criminal Justice Act 1988
and wounding with intent, contrary to
section 18 of the Offences Against the Person Act 1861
. On her behalf, Ms Jones contends that the latter conviction is unsafe because the jury were incorrectly directed as to the mental element of the offence. Ms Bradley, for the respondent, is also concerned that the direction in question may have misled the jury. So too upon reflection was Mr Recorder Chinery, the learned recorder before whom the case was tried.
2.
We will return shortly to the manner in which this case comes before the court. At this stage it suffices to say that we grant leave to appeal.
3.
The circumstances giving rise to the prosecution can be summarised briefly. Mrs Mary Houston lives with her family on a private road in Wellingborough. Non-residents of the street sometimes use it as a car park. Mrs Houston and her family, on occasions, ask persons to move elsewhere. On 11th October 2016 Mrs Houston and her adult daughter, Angela, went to make such a request of the driver of a parked black BMW car. It was accepted at trial that the driver was this appellant.
4.
The prosecution case was that the appellant's response towards Angela Houston was verbally aggressive. Mrs Houston began to move back towards her house. The appellant then left her car, took hold of Mrs Houston's shoulders from behind and pushed her. Mrs Houston returned to her property and began to shut her gates. The appellant then drove her vehicle directly at the gates. She struck the gates, causing them to open. Mrs Houston stepped forward to close them. The vehicle then drove at Mrs Houston, knocking her down and causing a laceration of her right forearm, which has left visible scarring, soft tissue damage to her wrist and injuries to her ribs. Mrs Houston required in-patient treatment for three days and suffered continuing pain.
5.
The appellant's evidence at trial was that she had parked in the private road because she was looking for her son. She thought he might be playing football on an adjacent field. She told Angela Houston that she would only be a couple of minutes. She denied being threatening or aggressive: on the contrary, she said Mrs Houston and her daughter had been racially abusive to her. She accepted that she had touched Mrs Houston's shoulder, but only to attract her attention after the racial abuse. The appellant denied that she had pushed Mrs Houston. Her evidence was that she then returned to her car and drove away. As she did so she saw Mrs Houston tripping over some flower pots and falling. The appellant denied driving at the gates, or at Mrs Houston, or causing her any injury. She accepted that there was damage to the BMW car but said that it had been there before this incident. She put forward an explanation as to why she had failed to mention much of this account when interviewed under caution.
6.
The jury had to consider three counts on the indictment. The allegation of pushing Mrs Houston was reflected in count 1, assault by beating. The allegation that the appellant had caused Mrs Houston's injuries by hitting her with the BMW car was reflected in count 2, wounding with intent and the alternative count 3, unlawful and malicious wounding contrary to
section 20
of
the 1861 Act
.
7.
No issue arises as to count 1. It is accepted that the conviction on that count is safe.
8.
In relation to counts 2 and 3, there was, as we have indicated, a head-on conflict of evidence, which the recorder clearly identified in his summing-up. On the evidence of Mrs Houston and her daughter the appellant had driven at her. There was a clear basis for an inference of an intention to cause really serious injury, in particular having regard to the fact that the appellant was alleged to have driven forwards twice, initially hitting the gate and then injuring Mrs Houston. The appellant's evidence, in stark contrast, was that she had played no part in causing Mrs Houston's injuries and was driving away when those injuries occurred. There was no doubt that Mrs Houston had suffered a wound and there was no suggestion that the appellant had any lawful justification for driving at or towards Mrs Houston if the jury were satisfied that she did. It was therefore possible to focus on those ingredients of the offences charged which were genuinely in issue.
9.
There was, as it seems to us, a clear route which could and should have been set out for the jury to follow in reaching their verdicts on these counts: Question 1: Were the jury sure that Mrs Houston's injuries were sustained when she was struck by the car driven by the appellant? If "no", not guilty on both counts 2 and 3. If "yes", question 2: were the jury sure that when she drove the car into collision with Mrs Houston the appellant intended to cause her really serious injury? If "yes", guilty of count 2. If "no", question 3: "Were the jury sure that when she drove the car into collision with Mrs Houston, the appellant either intended to cause her some injury, however minor, or was aware of the risk that she might cause some injury, however minor, by hitting her with the car, but nonetheless took that risk? If yes, guilty of count 3, and if "no", not guilty of count 3.
10.
Unfortunately the recorder did not provide the jury with that or any other written route to verdict. Nor did he give the jury any written direction as to the law. In his summing-up, he gave the jury an initial direction about the allegation of an intention to cause really serious injury. No complaint is or could be made about that direction in itself. It was however followed at pages 6A - B of the transcript by the following direction about count 3, the
section 20
allegation:
"Then you have count 3 and that is an alternative charge to count 2. It relates to the same injury. The difference is that if you decide, so that you are sure, that the defendant caused the injuries, but that she did not intend to cause those injuries, then it is open to you to find the defendant guilty on count 3 but not guilty on count 2. Conversely, of course, if you decide -- and I suggest you do it in the order in which you have it on the indictment -- that the defendant is guilty on count 2, you do not then need to go and consider count 3."
11.
With respect to the recorder, we see three problems with that passage. First, it misstates the standard of proof and is at least capable of being misunderstood as to the burden of proof. Secondly, it omits any explanation of the two different states of mind which the jury might find proved in relation to count 3, namely, an intent to cause some injury, however minor, or recklessness as to the causing of injury. Thirdly, although the recorder encouraged the jury to consider count 2 before count 3, an encouragement which he repeated in stronger terms later in the summing up at page 10C, his use of the word "conversely" may have been understood by the jury as an indication that they could start with count 3 and then work back to count 2 if necessary.
12.
No separate argument has been advanced before this court as to whether the unsatisfactory nature of that passage would of itself cast doubt on the safety of the conviction on count 2. We need not decide that issue. We focus instead on what happened when the jury, after a period in retirement considering their verdicts, asked a question in the following terms:
"If the defendant drove at Mary intending to scare her rather than to injure her but the injury was the result of the ensuing collusion, is she guilty of count 2? We need advice as to the requisite level of intent."
13.
The recorder, rightly, discussed with counsel how that question should be answered. Ms Bradley asked for and was given time to consult the Crown Court Compendium in order to assist the recorder by drafting a suggested direction explaining recklessness to the jury. No doubt all three participants in this discussion were trying to ensure that the jury were correctly directed in response to their question. Unfortunately, through what appears to have been a collective muddle, all three appeared to have become confused as to which count was which. It seems probable that there was a temporary and collective oversight of the less serious offence charged in count 1. Be that as it may, it appears somehow to have been assumed that the jury's enquiry about count 2 (the
section 18
offence) in fact related to count 3 (the
section 20
offence).
14.
In the result, when the jury returned to court the recorder thanked them for their question and at page 12G - 13A said this:
"I think the answer to the question which you pose is perhaps rather more simply put in this way: if you find, so that you are sure, that the defendant drove her car at Mrs Houston, knowing that there was a risk that Mrs Houston might be injured, but nevertheless went on to take that risk, in circumstances where it would be unreasonable for her to do so, that would amount to the question which you are raising with me which is that she would be guilty on count 2.
So what you have to be satisfied of, really, is -- and the question of scaring does not really come into it -- that the defendant knew that there was a risk in driving the car at Mrs Houston, the risk being she might be injured, but nevertheless went on to take that risk with the resulting consequences, if you are satisfied that was what happened."
15.
Thus the jury were wrongly directed by the recorder that recklessness would be sufficient for a conviction of count 2, the
section 18
offence. That was plainly wrong. Wounding with intent, contrary to
section 18
of
the 1861 Act
is a crime of specific intent. Nothing less than an intention to cause really serious injury would suffice.
16.
Very regrettably, nobody recognised the error at the time. The jury retired again, and a comparatively short time later returned their guilty verdicts on counts 1 and 2.
17.
Sentencing was adjourned until the following day. By the following morning Miss Jones had realised that there had been a misdirection. She raised her concerns with the recorder, who adjourned sentencing. He was persuaded to grant a certificate that the case was fit for appeal.
18.
Although a trial judge has power, under
section 1(2)(b)
and
section 11(1)A
of the
Criminal Appeal Act 1968
, to certify that a case is fit for appeal, it has long been established that the power should only be exercised in exceptional circumstances - see for example
R v Bansal
[1999] Crim LR 484, in which the court held that there would be very few circumstances which would justify a trial judge's assumption of powers normally exercised by judges of the Court of Appeal; and see to similar effect
R v Inskip
[2005] EWCA Crim 3372
. A trial judge must first be satisfied that there is a compelling ground of appeal. In the circumstances of this case, where the recorder was rightly persuaded that he himself had fallen into serious error, that requirement may be satisfied. But it does not follow that a certificate of fitness for appeal should be granted.
19.
If the trial judge does grant such a certificate, there are two consequences. The first is that it obviates the need for the convicted defendant to apply for leave to appeal against his or her conviction. The second is that the trial judge may grant bail pending appeal - see section 81(1)(f) of the Senior Courts Act 1981.
20.
As to the first of those consequences, it must be remembered that the Registrar of Criminal Appeals has the power to refer an application for leave to appeal directly to the full Court, which can be done very quickly, and that in an appropriate case, steps can be taken to ensure that an appeal is heard within a short period of time. It must also of course be remembered that the time limit of 28 days for applying for leave to appeal against conviction is a maximum, not a norm. In the circumstances of this case, it seems to us that the prompt submission by Ms Jones of an application for leave to appeal, accompanied by a note explaining to the Registrar the reasons for dealing with it urgently, could and would have been referred to the full Court within a very short period of time.
21.
As to the second consequence, it should have been of no practical importance in this case, because we have no doubt that the recorder should in any event have adjourned sentence to obtain a pre-sentence report, and we can see no reason why he should not have granted the defendant bail during that period of adjournment. We must express our surprise to have been told by Ms Jones that although she asked for an adjournment to obtain a pre-sentence report, the learned recorder dismissed such a report as unnecessary in view of the inevitability that a
section 18
conviction such as this would result in a substantial term of imprisonment. Bearing in mind that, even on the very limited information available to us, it is clear that the appellant was the mother of at least one child, we have no doubt that a report should have been obtained even if, in the end, it proved relevant only as to the length of sentence.
22.
Setting that point to one side, it seems to us that in the circumstances of this case the conventional appeal procedure could, and in our view should, have been followed. We would add that trial judges should reflect very carefully before deciding to take the exceptional course of certifying a case fit for appeal.
23.
There was in any event a procedural irregularity in the recorder's agreement to certify the case fit for appeal. By Criminal Procedure Rule 39.4, a defendant who wishes a trial judge to grant a certificate must either make an oral application immediately after the conviction occurs (which did not happen here) or must make the application in writing (which also does not appear to have happened here). It is therefore fortunate for all concerned that the Registrar, for the avoidance of any doubt, did swiftly refer this case to the Full Court. So it is that we have granted leave to appeal at the start of this judgment.
24.
The appeal now being before the court, Ms Bradley, for the respondent, rightly, does not resist it.
25.
It is in those circumstances inevitable that we will conclude that the conviction on count 2 is unsafe and must be quashed. We hope that it goes without saying that it is very regrettable that a conviction falls to be quashed in such circumstances.
26.
We have been addressed about what should be the appropriate consequences if, in the light of what is now before us, we grant the appeal and quash the conviction. Ms Jones, for the appellant, submits that the appropriate course would be for this court, upon quashing the
section 18
conviction, to exercise its power under
section 3 of the Criminal Appeal Act 1968
to substitute a conviction of the alternative count alleging an offence contrary to
section 20
. Ms Bradley, for her part, invites the court to order a retrial. We have reflected upon these submissions. We have no doubt that a retrial must be ordered. It is very regrettable that the appellant will again have to face a trial and that Mrs and Miss Houston and other witnesses will again have to give evidence. It is regrettable that there will inevitably be some delay before the retrial can be heard. But as against that, the allegation put forward by the prosecution is a serious one. Whatever a jury may ultimately make of it, no one has suggested that there was not a case to answer on count 2. The reason this conviction must be quashed is that there has been a serious error in the manner in which counts 2 and 3 were laid before the jury by the recorder. It follows that no jury has yet given proper consideration to those two alternative charges.
27.
Thus, at the conclusion of this judgment, we will announce our decision to quash the conviction of count 2 and to order a retrial. But before that, we must make some observations as to how the serious error which occurred here could and should have been prevented.
28.
Criminal Procedure Rule 25.14(4) states that jury directions, questions or other assistance may be given in writing. Research has shown that jurors are assisted by having written directions. The research is well known. It is conveniently summarised by the learned authors of the Crown Court Compendium, to which reference was made in the course of this trial, at paragraph 1.6 of their 2017 edition and the authors there conclude that the argument in favour of providing written directions is "overwhelming". Numerous decisions of this court have made clear the importance and desirability of written directions, and have encouraged their use. The provision of a written route to verdict was recommended by Sir Brian Leveson in his Review of Efficiency in Criminal Proceedings in 2015. The Criminal Practice Direction now makes specific reference to it, supplementing rule 25.14 in the following terms:
"26K.11. A route to verdict, which poses a series of questions that lead the jury to the appropriate verdict, may be provided by the court (CrimPR 25.14(3) (b)). Each question should tailor the law to the issues and evidence in the case.
26K.12. Save where the case is so straightforward that it would be superfluous to do so, the judge should provide a written route to verdict. It may be presented (on paper or digitally) in the form of text, bullet points, a flowchart or other graphic."
29.
In
R v Kay
[2017] EWCA Crim 2214
, this court, differently constituted, has recently drawn attention to the importance of that part of the Criminal Practice Direction.
30.
It is, in our judgment, entirely clear that the circumstances giving rise to this appeal would not have occurred if written directions, or a written route to verdict, or both, had been provided to the jury by the recorder. In that way the jury would have had a clear record, to which they could if necessary refer during their deliberations, of the approach they should take in deciding their verdicts on counts 2 and 3. It would probably have obviated the need for the jury to ask a question about an intention to scare as opposed to an intention to cause serious injury. But even if they had still asked that question, neither the recorder nor counsel would have fallen into error about which count was which, and the answer to the jury's question could have been expressed with specific reference to the document which had been provided to them.
31.
There is a lesson to be learned from this case. It is that one should never be too quick to assume that a case is so straightforward that a route to verdict would be superfluous. Experience shows that problems can arise even in cases which seem straightforward. In the present case, the criticism which we have made of the recorder's initial direction as to count 3 shows that a written route to verdict would not have been superfluous even if the later events had not occurred. Moreover, quite apart from the assistance which the end product will provide to the jury, the mental discipline of drafting a route to verdict in itself assists the court to identify the essential ingredients of the offences charged and the issues on which the jury must focus.
32.
We recognise, of course, the pressure of work on judges and recorders sitting in the Crown Court and we accept that some cases are so straightforward that no written materials for the jury are necessary. But such cases are in a minority and this case illustrates the general desirability of providing the jury with written directions, a written route to verdict, or both.
33.
For those reasons, we quash the appellant's conviction on count 2 and we order a retrial on counts 2 and 3. The conviction on count 1 of course stands.
34.
We must give some directions. We direct that a fresh indictment containing what have hitherto been counts 2 and 3, but will now be renumbered, be served. We further direct that the appellant be re-arraigned on the fresh indictment within 2 months.
35.
Ms Jones, Ms Bradley, is there any reason why the retrial should not be held in the Crown Court at Northampton. Was there, for example, any local reporting which might in any way be thought capable of prejudicing the retrial?
36.
MS BRADLEY: Not that I am aware of.
37.
MS JONES: No my Lord.
38.
LORD JUSTICE HOLROYDE: We will simply direct that the appellant be re-arraigned and the retrial proceed in the Crown Court at Northampton.
39.
Ms Bradley, the defendant is presently on bail, awaiting sentence on count 1, no longer on count 2 because we have quashed that conviction. There is in any event the question of her status between now and any retrial. Has the bail of late been unconditional?
40.
MS BRADLEY: I think there are certain --
41.
MS JONES: There are a number of conditions: her passport was surrendered to the local police station and she reports every Saturday between the hours of 10.00 and 12.00. She is now based in London not Northampton. There is to be no contact with the complainant or her family.
42.
LORD JUSTICE HOLROYDE: All right. In a moment we will rise to consider that. Is there any other direction which either of you seeks from us in relation to the retrial?
43.
MS BRADLEY: No thank you my Lord.
44.
LORD JUSTICE HOLROYDE: We will just rise for a moment.
(Short Adjournment)
45.
LORD JUSTICE HOLROYDE: We will direct that the appellant remain on bail subject to the same conditions as before and Ms Jones, in the event of any wish to vary those conditions, then an application can be made to the Crown Court in the usual way.
46.
Now it does not seem to us that there is any reason why we should depart from the important principle of open justice by restricting the publication of the judgment in this case pending retrial. It does not seem to us to be a case in which, even in the improbable event of any juror reading our decision, there could be any possible prejudice to the fair trial of the appellant. Does either of you suggest the contrary?
47.
MS JONES: No my Lord.
48.
LORD JUSTICE HOLROYDE: Ms Jones, I should have read out to you one further provision which is for the benefit of the defendant (as she now becomes). I take it she was legally aided?
49.
MS JONES: She was.
50.
LORD JUSTICE HOLROYDE: That order does not cover the retrial. You must apply, for a representation order to cover the retrial, to a specific department of the Legal Aid Agency. Rather than my reading out the full details of the address, it is probably best if you have a quiet word with the Registrar in court when convenient and she can tell you about it. | {"ConvCourtName": ["Crown Court at Northampton"], "ConvictPleaDate": ["3rd January 2018"], "ConvictOffence": ["assault by beating", "wounding with intent"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["remain on bail subject to the same conditions"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["data not available"], "Sentence": ["data not available"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["her"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["request of the driver"], "VictimType": ["Mrs Mary Houston"], "VicNum": ["Mrs Mary Houston"], "VicSex": ["Mrs Mary Houston"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["lives with her family on a private road"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["in-patient treatment", "took hold of Mrs Houston's"], "DefEvidTypeTrial": ["denied being threatening"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["conviction is unsafe"], "AppealGround": ["jury were incorrectly directed"], "SentGuideWhich": ["section 18 of the Offences Against the Person Act 1861.", "wounding with intent"], "AppealOutcome": ["quash the appellant's conviction on count 2 and we order a retrial on counts 2 and 3", "appellant be re-arraigned and the retrial proceed"], "ReasonQuashConv": ["providing the jury with written directions, a written route to verdict"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Crown Court At Northampton"], "ConvictPleaDate": ["2018-01-03"], "ConvictOffence": ["wounding with intent", "assault by beating"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Conditional Bail"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["data not available"], "Sentence": ["data not available"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["All Female"], "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": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Victim testimony", "Medical"], "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 is unsafe"], "AppealGround": ["jury were incorrectly directed"], "SentGuideWhich": ["wounding with intent", "section 18 of the Offences Against the Person Act 1861."], "AppealOutcome": ["appellant be re-arraigned and the retrial proceed", "quash the appellant's conviction on count 2 and we order a retrial on counts 2 and 3"], "ReasonQuashConv": ["providing the jury with written directions, a written route to verdict"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 217 |
Neutral Citation Number:
[2008] EWCA Crim 2498
No.
2008/00950/C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Wednesday 8 October 2008
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Judge
)
MR JUSTICE OWEN
and
MR JUSTICE CHRISTOPHER CLARKE
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
- v -
LEVAN URUSHADZE
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr T Mackinnon
appeared on behalf of the Appellant
Mr G Renouf
appeared on behalf of the Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
THE LORD CHIEF JUSTICE:
I will ask Mr Justice Christopher Clarke to give the judgment of the court.
MR JUSTICE CHRISTOPHER CLARKE:
1. On 15 January 2008, in the Crown Court at Inner London, the appellant was convicted of robbery following a retrial which lasted for five days. He was sentenced to five years' imprisonment and a recommendation was made that he should be deported. He now appeals against conviction by leave of the single judge.
2. The grounds of his appeal are that the learned judge was wrong to admit in evidence proof of six previous convictions for theft from a shop (shop-lifting) to which he had pleaded guilty.
3. The facts which led to his conviction are the following. On 29 June 2007 a white man of stocky build and of Eastern European appearance (Male 1) robbed Mr Raza by hitting him several times on the head with a stun gun, causing his head to bleed, and taking his brown briefcase. Mr Raza chased after the man in order to retrieve his briefcase.
4. There was a further altercation between Male 1 and Mr Raza. A neighbour, Mr Sabir, intervened to assist Mr Raza. The appellant was seen to take the briefcase from Male 1 and they both left the scene. Male 1 has never been apprehended by the police.
5. The prosecution case was that the appellant was engaged in a joint enterprise with Male 1 to rob Mr Raza. The appellant was walking home in Grangewood Street, London E6, when Male 1 assaulted Mr Raza with a stun gun and took his briefcase. The appellant followed Male 1 and Mr Raza to Friars Road, where Mr Raza tried to retrieve his briefcase and the neighbour, Mr Sabir, intervened to assist him. When the appellant realised that Male 1 was having difficulties carrying out the robbery, he joined in to assist Male 1 and took the briefcase from him.
6. The defence case was that the appellant came to be on the scene by accident. He did not see the initial incident between Male 1 and Mr Raza. He was not part of a joint enterprise to rob Mr Raza. He recognised Male 1 as someone from Georgia whom he knew from an English language school in London. What he saw was Male 1 being attacked by a group of Asian males and he intervened to assist him. Male 1 asked him to take the briefcase away and he did so thinking that it belonged to Male 1.
7. Mr Raza gave evidence about being approached by Male 1, being assaulted with the stun gun and having his brown briefcase stolen from him. Male 1 then made off. Mr Raza said that he went after Male 1, caught up with him in Friars Road, shouted at Male 1 to give his bag back and tried to grab it back. He described himself as being hit over the head several more times with an object by Male 1. He noticed another man (who was said to be the appellant) watching as he went after Male 1. The appellant, he said, had been watching everything and was helping Male 1. Mr Raza's neighbour, Mr Sabir, came to his assistance, as did a number of predominantly Asian people, although nobody other than Mr Sabir appears to have intervened physically. Mr Sabir wielded a blue bicycle lock cable. At some stage Mr Sabir dropped the cable and it was picked up by the appellant, who by that stage had intervened. At a later stage Mr Raza gave up his briefcase because he thought that the situation was becoming too dangerous.
8. Mr Sabir gave evidence of looking out of his front window when he saw Male 1 run up to Mr Raza, hit him with a gun and take his bag from him. Mr Sabir went outside to assist. By the time he reached the front door Mr Raza was chasing after Male 1. At this point he noticed another man (he said the appellant) leaning on a bicycle and watching them. There was some doubt as to whether the appellant, who had come from West London, was in fact the man with the bicycle. Mr Sabir had a blue bicycle cable which he used to hit Male 1 on the back several times, but he lost hold of it. He said that he saw the appellant attempt a "fly kick" but was not certain if it connected with anybody. The appellant had his hand inside his pocket as if he had a knife there and he said words to the effect, "I will kill you". At this point he told Mr Raza that he should back off because he was worried that the appellant might have a knife. He subsequently identified the appellant to the police in a public house close to the scene and on a later date at an identification parade.
9. There was also evidence from three independent witnesses, one of them, Mr Dallel, who was a taxi driver in a taxi in which there were two sisters as passengers. Mr Dallel said that he saw the start of the incident when Male 1 took the briefcase from Mr Raza. He drove past, but then stopped. He said that he had seen 15-20 Asian people come out onto the street to see what was happening, although he only saw one man (Mr Sabir) physically do anything to help. He followed the appellant, who was carrying the bag, into Dickens Road into which the taxi could not go. When the appellant emerged from Dickens Road he was no longer carrying the bag. Nor was he wearing his jacket, but was carrying it, and he had disposed of a rucksack that he had had.
10. The taxi driver and the two passengers gave evidence that they saw the appellant briefly go into a takeaway shop and they then followed him to the Central public house which is on the Barking Road.
11. A police constable gave evidence that he attended at the public house and waited by the exit. The appellant came out of the toilets and made for the exit, avoiding eye contact with the police.
12. The appellant gave evidence that he came from Georgia and that he had a number of friends in London from Eastern Europe. He described how on the afternoon of 29 June he was going to visit some friends in the Barking Road. As he made his way to Upton Park, two people stopped to ask him for directions. He heard a shout which caused him to look round but he saw nothing in particular. He then decided to see what was going on and made his way to Friars Road, where he saw a fight taking place between Male 1 and four or five Asians. He said that as he got closer he recognised Male 1 as somebody he knew as "Anzor" who was from Georgia and whom he had met a few times at an English language college in Oxford Street. He believed that Male 1 was being attacked. He intervened because he was concerned for his safety. He was being seriously assaulted with chains, cables and pieces of wood. He said at some stage that Male 1 fell to the ground and he (the appellant) thought that he would be killed. He said that he believed that the briefcase that Male 1 was holding was his. He had not seen it being taken from Mr Raza by Male 1. Male 1 told him to take the bag. He took it because he believed that the men would then stop hurting his friend. As he took the bag he thought that the men were going to come after him, so he fled the scene. Having done so, he sat at the bus stop for a while because he thought that his friend would return to collect the briefcase. He then became worried when he saw some Asian people coming towards the bus stop, so he left and disposed of the briefcase in Dickens Road. At this time, he said, that he was more concerned for his own safety than losing his friend's briefcase. He went to the Central public house to use the toilet. He said that he did not avoid eye contact with the police. He was pleased to see them in view of what had happened and did not look at them only because his attention was focused on a person who was pointing him out. He did not mention to the police at this point what had happened because he was nervous and shocked. He had had an empty rucksack with him in order that he could put his jacket in it if he became hot. He said that he took off his jacket in Dickens Road for that reason and not in order to change his appearance. He said that he had seen nothing of the original incident between Male 1 and Mr Raza.
13. As is apparent, the critical issue for the jury to decide was whether they were sure that the appellant was part of a joint enterprise to rob the victim -- his part being to take away the bag when Male 1 got into difficulties -- or whether it was or might be the case that the appellant had not witnessed the first incident when Male 1 assaulted Mr Raza but came upon a group of people attacking and seriously assaulting a man he recognised whose bag he took from him because the man (an acquaintance and a fellow Georgian) told him to do so and because that would, he thought, stop the assault upon him.
14. To the resolution of that dispute two factual issues were key: first, whether, contrary to his evidence, the appellant had in fact witnessed the original attack on Mr Raza in Grangewood Street; and secondly, how he had interpreted the second incident when Mr Sabir and others came to the victim's aid.
15. The Crown had not sought to put the appellant's previous convictions in evidence at the first trial in November 2007. At the end of that trial the prosecution indicated that there would be an application to admit such convictions at the retrial. We were told by Mr Renouf for the Crown that instructions were given for a notice to be served. However, no such notice was served prior to or at the retrial in January 2008, even though the retrial was originally listed for 17 September 2007 and adjourned on that day because the victim had not been warned and was not available.
16. This was inconsistent with the mandatory provisions of Part 35 of the Criminal Procedure Rules which require the service of such a notice within fourteen days of the committal of the defendant or other similar event. In the result, therefore, an application was made orally on 10 January 2008 very close to the end of the prosecution case. That such an application was to be made had been indicated by counsel for the prosecution at the beginning of the trial the previous day before any witnesses were called. It appears not to have been made until that day because counsel for the Crown did not have until the second day information as to which of the shop-lifting offences the appellant had pleaded guilty. The intention was to adduce in evidence only those offences to which the appellant had pleaded guilty (although it is not apparent to us that it was only those offences that were potentially relevant, if any were, he having been convicted of some offences of shop-lifting to which he did not plead guilty).
17. The learned judge decided that she would permit the prosecution to make a late application. She did so because she said that the question had been flagged up; the defendant had received oral notice and the antecedent history was always known to the defence. She took the view that there was no prejudice to the defendant by the late application.
18. Mr Mackinnon for the defence had submitted that the application should be refused because it was late and because, if it had been made earlier and had been granted, he would have applied to put in evidence of the bad character of Mr Sabir (who gave evidence on the first day of the trial and had then unexpectedly gone abroad). Mr Sabir had a conviction for possession of an offensive weapon and cautions for common assault and assault occasioning actual bodily harm. The learned judge regarded that as a separate issue. She thought that the defence could have made that application before Mr Sabir gave evidence.
19. The failure of the prosecution to comply with the rules, even before the start of the adjourned retrial was, in our view, unacceptable. Whether or not to entertain a late application, and whether to refuse it on the grounds of lateness or the prejudice asserted, was a matter for the discretion of the learned judge. For reasons which will soon become apparent we do not think it necessary to address the question as to whether or not she was right in exercising that discretion in the prosecution's favour.
20. The gateway upon which the prosecution relied in order to introduce the evidence of the shop-lifting offences was
section 101(1)(d)
of the
Criminal Justice Act 2003
, that is to say that the convictions were relevant to an important matter in issue between the defendant and the prosecution, namely whether the defendant had a propensity to commit offences of the kind with which he was charged. By
section 103(2)
a defendant's propensity to commit offences of the kind with which he is charged may be established by evidence that he has been convicted of an offence of the same category as the one with which he is charged. For these purposes theft is in the same category as robbery.
21. The learned judge recorded the prosecution's submission that the convictions were relevant because they were capable of showing a propensity on the part of the defendant "to know and perceive that a theft was taking place -- a theft with violence, hence a robbery; that there was the ingredient of the dishonest intention permanently to remove Mr Raza's belongings and that the defendant was in a position to appreciate that having seen the incident unfold". The learned judge decided that, theft being in the same category as robbery, the convictions for theft were relevant to show a propensity to robbery. In her ruling she said this:
"The prosecution say that the jury should have knowledge of these offences because it will assist them in determining whether or not the defendant has such a propensity to commit certainly the theft element of this offence, on the basis that he is no stranger to theft by stealing, and that his explanation that this was an innocent encounter, he was simply assisting somebody he knew, the jury need to consider against the background of his knowledge of what theft is and his participation in theft, and his observation of somebody (certainly the first incident which has been described by other witnesses) where the assailant was Male 1 on Mr Raza."
22. When she came to sum up, the judge told the jury that the appellant's previous convictions did not tell them whether he had committed the offence with which he was charged and that they should be careful not to be unfairly prejudiced against the appellant by what they had heard about his convictions. She said that they might consider it relevant, in ascertaining what his intention was when he went over to Male 1, that he had six previous convictions for that because, as the prosecution said, that showed that he had a tendency to take property that did not belong to him, knew what theft was and was prepared to commit it. She pointed out that theft and robbery shared the ingredient of taking another's property with the intention of permanently depriving him of it. She left it open to the jury to decide whether or not they should accept the appellant's explanation of a purely innocent encounter and whether his previous convictions assisted them in determining whether he was acting innocently, having misunderstood the situation.
23. There can be no doubt that the appellant knew and understood what theft was. So do most people. Such knowledge and understanding by itself cannot be a ground for admitting evidence of convictions of theft. We also have some difficulty in the concept apparently put forward by the prosecution of a propensity to know or perceive that a violent theft is taking place and in seeing how, on the facts of this case, the appellant's previous convictions for shop-lifting cast any light on what his perceptions were of what was happening at the time.
24. In relation to the first incident, when Male 1 attacked Mr Raza, the issue was whether or not the appellant had witnessed the incident at all, not whether he had misunderstood it. In relation to the second part of the same incident (when the appellant came to the rescue of Male 1) the resolution of what the appellant thought was going on was dependent firstly on whether he had in fact seen the first incident and secondly whether his evidence as to what he said he saw and how he interpreted it was credible.
25. As the single judge pointed out when giving leave, if the jury accepted that all that the appellant saw was Male 1 being attacked by others, including Mr Sabir, it is difficult to see how the convictions could help them reject his account that he believed that Male 1 was the victim.
26. Insofar as the learned judge's ruling was based on the convictions evidencing a propensity to know or understand theft, or as casting light on the appellant's perception, it was in our view ill-founded. However, the major part of the learned judge's reasoning appears to us to have been that the six shop-lifting offences showed a propensity on the part of the appellant to commit the theft element of robbery.
27. The learned judge's attention was not drawn to the decision of this court in
R v Tully and Wood
[2006] EWCA Crim 2270
. In that case the appellants were charged with the robbery of a taxi driver. Both appellants had convictions for, firstly, robbery; secondly, certain offences committed together; and thirdly, for other offences of dishonesty. The prosecution sought to put in evidence the robbery and joint enterprise convictions. The trial judge referred counsel to
section 103(2)
of
the 2003 Act
and appeared to encourage an application to put in all the offences of dishonesty. That application was later made and granted on the basis that the theft convictions relied on were evidence of propensity to acquire other people's property by unlawful means, by robbery if necessary. On appeal the prosecution did not seek to uphold the judge's ruling. Prosecution counsel candidly expressed the wish that he had not taken up the judge's invitation in the first place. This court regarded that approach as plainly right. The court held that the judge was wrong in effect to hold that a propensity to obtain other people's property made it more likely that the appellants would have committed the offence of robbery. In giving the judgment of the court Smith LJ observed as follows:
"26. In our view the judge was wrong to hold, in effect, that a propensity to obtain other people's property by one means or another made it more likely that these appellants would have committed this offence. In fact he never said that in terms, but that was the implied basis of his decision. The whole thrust of the guidance in
Hanson
is that the court should only admit convictions which have some probative force by reason of their similarity to the offence charged. To allow the Crown to prove a propensity to obtain other people's property by some means or another is, in our view, to allow them to cast far too wide a net. Such evidence has limited probative value and has a potentially prejudicial and harmful effect. In
Hanson
the court said that the judge should look for similarities between what the defendant had done in the past and what he was now charged with. Those similarities did not have to be striking in the way that similar fact evidence has to be, but there must be a degree of similarity. The fact that the convictions are for offences of the same description or category does not automatically mean that they should be admitted. It is not possible to define the degree of similarity which must be shown. That must be for the judge's discretion and judgment to be exercised on the facts and circumstances of the individual case. But the judge must strike a balance and in doing so must remember the words of section 101(3) to which we have already referred.
27. Here the judge appears to have understood
section 103(2)
to give him complete freedom to admit all convictions of the same category as the offence of robbery regardless of their probative effect. Robbery being a theft offence, all convictions for other theft offences could go in to prove a general propensity to acquire other people's property by one means or another. The judge did not consider whether evidence of those convictions would make it more likely that each appellant had committed this offence. It seems to us that, had he done so, he would have concluded that such evidence had little probative force. There are a great many people who have a propensity to acquire other people's property by one means or another. On the other hand, previous convictions for robbery would be much more probative and a conviction for robbing somebody using a knife to reinforce a threat of violence would increase the probative effect. In short, the more similar the circumstances of the past offences to the present allegation, the greater the probative force."
28. Those words are as it seems to us apposite here. We are far from saying that proof of convictions for theft can never be probative in relation to allegations of robbery. However, on the facts of this case it does not seem to us that the appellant's convictions for shop-lifting revealed sufficient similarity between what he had done in the past and what he was said to have done on this occasion to indicate a propensity to commit a robbery of the type in question. If and insofar as the convictions had any probative value, it seems to us that on the facts of this case its effect was very greatly outweighed by the prejudice caused by admitting them such that the adverse effect on the fairness of the proceedings was that the court ought not to have admitted them.
29. Accordingly, for those reasons we propose to allow this appeal.
30. We have been asked to order a retrial. We do not propose to do so. If there were to be a retrial, it would be the second retrial. There was the original trial. There was then due to be a retrial in September, which did not in fact take place. There was then a retrial which did take place in January. In the light of the fact that the appellant has already served a substantial period of time in custody, we do not think it appropriate on this occasion and in these circumstances that there should be a retrial of these offences.
_______________________ | {"ConvCourtName": ["Crown Court at Inner London"], "ConvictPleaDate": ["15 January 2008"], "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 at Inner London"], "Sentence": ["five years' imprisonment and a recommendation was made that he should be deported"], "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": ["chased after the man"], "VictimType": ["Mr Raza"], "VicNum": ["Mr Raza"], "VicSex": ["Mr"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["witnesses", "Mr Raza gave evidence", "police constable gave evidence", "identification parade"], "DefEvidTypeTrial": ["defence case was that the appellant came to be on the scene by accident"], "PreSentReport": ["data not available"], "AggFactSent": ["stun gun"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeals against conviction"], "AppealGround": ["the learned judge was wrong to admit in evidence proof of six previous convictions for theft"], "SentGuideWhich": ["section 101(1)(d) of the Criminal Justice Act 2003,", "Part 35 of the Criminal Procedure Rules"], "AppealOutcome": ["to allow this appeal."], "ReasonQuashConv": ["effect was very greatly outweighed by the prejudice caused by admitting them"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Crown Court At Inner London"], "ConvictPleaDate": ["2008-01-15"], "ConvictOffence": ["robbery"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Inner London"], "Sentence": ["five years' imprisonment and a recommendation was made that he should be deported"], "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": ["Don't know"], "ProsEvidTypeTrial": ["Police evidence", "identification parade", "Victim testimony", "witnesses"], "DefEvidTypeTrial": ["defence case was that the appellant came to be on the scene by accident"], "PreSentReport": ["Don't know"], "AggFactSent": ["Weapon/armed"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["appeals against conviction"], "AppealGround": ["the learned judge was wrong to admit in evidence proof of six previous convictions for theft"], "SentGuideWhich": ["section 101(1)(d) of the Criminal Justice Act 2003,", "Part 35 of the Criminal Procedure Rules"], "AppealOutcome": ["to allow this appeal."], "ReasonQuashConv": ["[evidence]"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 4 |
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
Case No: 2023/00132/A4, 2023/01263/A4
[2023] EWCA Crim 1613
Royal Courts of Justice
The Strand
London
WC2A 2LL
Tuesday 28
th
November 2023
B e f o r e:
VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION
(
Lord Justice Holroyde
)
MR JUSTICE BRYAN
MRS JUSTICE HILL DBE
____________________
R E X
- v -
MATTHEW WHARLOW
TOBY POOLE
____________________
Computer Aided Transcription of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_____________________
Mr T Schofield
appeared on behalf of the Appellant Matthew Wharlow
Mr R Canning
appeared on behalf of the Appellant Toby Poole
____________________
J U D G M E N T
(
Approved
)
____________________
Tuesday 28
th
November 2023
LORD JUSTICE HOLROYDE:
1.
On 10
th
January 2023, in the Crown Court at Leicester, His Honour Judge Mooncey sentenced the two appellants, and more than 20 other men, for their respective roles in a large-scale drugs conspiracy. The appellant Matthew Wharlow had pleaded guilty on 23
rd
June 2022 to conspiracy to supply a controlled drug of Class A, namely cocaine. He was sentenced to ten months' imprisonment, which was ordered to run consecutively to a sentence which he was already serving. The appellant Toby Poole had pleaded guilty on 8
th
June 2021 to the same offence. He was sentenced to six years and eight months' imprisonment.
2.
Each appellant now appeals against his sentence with the leave of the single judge.
3.
Purely for convenience, and intending no disrespect, we shall refer to the appellants and others by their surnames only.
4.
The broad facts of the case can be briefly summarised. The conspiracy period charged in the indictment ran from 1
st
March 2020 to 22
nd
September 2020. A group based in Leicester, some of whom used EncroChat devices, bought very large quantities of cocaine and sold it to other cocaine dealers. Those at the head of the group, including Julien, were responsible for buying and selling the cocaine, including the purchase of 20 kilograms of the drug in one transaction alone. Other co-conspirators arranged for the storage and distribution of the cocaine. Customers of the group, including McLeary, Arkate and Raja, were supplied by, and made payment to, nominated conspirators. The appellant Wharlow, and a co-conspirator Lees-Rowe, were couriers for McLeary. The appellant Poole was a courier for Arkate and Raja.
5.
Wharlow pleaded guilty on the basis that he acted as a courier for Lees-Rowe on an occasion in April 2020, when Lees-Rowe arranged for him to travel to Leicester, collect one kilogram of cocaine from Julien, and convey the drugs to McLeary in Nottinghamshire.
6.
In September 2021, Wharlow had pleaded guilty in the Crown Court at Harrow to offences of conspiracy relating to the importation and supply of cocaine, and money laundering of the proceeds of selling it, between March and June 2020. He accepted that he had acted as a courier for Lees-Rowe on a number of occasions, and had received payment for each trip. In all, he was involved in delivering drugs and collecting money on five occasions. The total weight of the cocaine involved was 78 kilograms. He asserted, but the prosecution did not accept, that he had not initially been aware of what he was delivering and that when he became aware he did not know the precise quantities.
7.
On 14
th
March 2022, again in the Crown Court at Harrow, Wharlow was sentenced to concurrent terms totalling ten years and nine months' imprisonment. That total term reflected a sentence for the importation offence of 12 years, before a reduction for his guilty plea on the day of trial. The concurrent sentence for the conspiracy to supply cocaine was nine years and six months' imprisonment. We note that under the relevant sentencing guideline, the term of 12 years represents the bottom of the category range for a "leading role" and the top of the category range for a "significant role" in a category 1 substantive offence of supplying a controlled drug.
8.
We understand that an application was made to transfer the Harrow proceedings to Leicester so that all matters against Wharlow – and indeed Lees-Rowe – could be dealt with by one court at the same time. That application was unsuccessful for reasons of practicality relating to the numbers of different co-defendants in the two sets of proceedings.
9.
The appellant Poole pleaded guilty on the basis that he made three trips, for which he was paid by Raja. He travelled to Leicester, Toddington and London. He delivered one kilogram of cocaine on one occasion, delivered half a kilogram on another occasion, and collected cash on the third occasion. He accepted that he had also supplied smaller quantities of cocaine for Raja on two other occasions, so that in total he was directly involved in the delivery of more than 1.5 kilograms of the drug. It was admitted that on each occasion when he acted as a courier, he was given Raja's EncroChat device, which he returned after completing his journey. He asserted, but the prosecution did not accept, that he had no awareness of the wider conspiracy.
10.
At the sentencing hearing, there was no pre-sentence report in relation to either of the appellants. None was thought necessary then, and we are satisfied that none is necessary now.
11.
Wharlow is now aged 32. Before his involvement in the two drugs conspiracies, he had no recent or relevant previous convictions.
12.
Poole is now aged 45. His previous convictions included one in 2012 for an offence of producing cannabis, which the judge regarded as significant when sentencing for this offence.
13.
Neither appellant had previously received any custodial sentence.
14.
In his sentencing remarks, the judge said that Wharlow had connections with persons near the top of the conspiracy and had played a significant role. He took the view that if this offence had stood alone, it would have merited a sentence in the region of eight years' imprisonment. If, however, it had been dealt with at the same time as the other offences in the Crown Court at Harrow, it would have increased the total sentence by about a year. Giving credit for the guilty plea to the present offence, the judge concluded that the appropriate sentence was one of ten months' imprisonment, which he ordered to run consecutively to the sentence already being served.
15.
The judge found that Poole had also played a significant role. He had used an EncroChat device, and by travelling to Toddington and London, had an awareness of the national reach of the conspiracy. The judge took a sentence after trial of eight years and six months. Giving credit of 20 per cent for the guilty plea, he imposed the sentence of six years and eight months' imprisonment.
16.
Wharlow appeals on the ground that the judge fell into error in his application of the Sentencing Council's definitive guideline on totality. Mr Schofield, on his behalf, relies on the fact that in the Harrow proceedings Wharlow had been sentenced for his actions in relation to 78 kilograms of cocaine. He submits that if all matters had been dealt with together, the overall sentence would not have been increased because Wharlow was involved in the movement of a further one kilogram of the drug. He argues, accordingly, that the judge should have ordered the sentence to run concurrently with the existing sentence, and not consecutively to it.
17.
We see force in that submission. It is unfortunate that all of Wharlow's offending was not dealt with at the same time, though we understand the reasons why it was not. The judge in the present case had a very difficult task in sentencing so many defendants; and the fact that Wharlow was already serving a substantial sentence was an additional complication. We remind ourselves, however, that the overriding principle of totality, as stated in the guideline, is that the overall sentence should reflect all of the offending behaviour, together with the aggravating and mitigating factors relating to the offences and those personal to the offender, and be just and proportionate. If all matters had been before the court at the same time, this particular movement of one kilogram of cocaine would have been the third in a sequence of six occasions, all involving very similar conduct by this appellant within a short period of time. Having regard to the very much greater quantities of cocaine moved by Wharlow on the other occasions, and to the fact that the lead offence in his sentencing at Harrow was the importation offence, we accept the submission that the sentence already being served provided just and proportionate punishment for all the offending. We note the judge’s indication that if all matters had been dealt with together, there would have been a concurrent sentence for this offence of about seven years' imprisonment. We shall not, however, alter the judge's decision as to the length of the sentence, in order to avoid any possible argument about the effect in these circumstances of
section 11(3)
of the
Criminal Appeal Act 1968
.
18.
We therefore allow Wharlow's appeal to this extent: we quash the sentence of ten months' imprisonment which was ordered to run consecutively to the sentence already being served, and substitute for it a sentence of ten months' imprisonment which will run concurrently with that already being served.
19.
We turn to the appeal of Poole. He challenges the judge's categorisation of his involvement in the offending as a significant role. Mr Canning, on Poole's behalf, submits that under the relevant definitive guideline Poole should have been found to have played a lesser role, not a significant one. He accepts that it was category 2 offending, but notes that the lesser role, which he contends was appropriate, has a starting point of five years' custody and a range of three years six months to seven years; whereas the significant role found by the judge has a starting point of eight years' custody, and a range from six years six months to ten years.
20.
By reference to the guideline, Mr Canning submits that four of the characteristics of a lesser role were present: performing a limited function under direction; no influence on those above in the chain; very little, if any, awareness or understanding of the scale of the operation; and expectation of limited, if any, gain. Mr Canning questions whether any of the characteristics of a significant role was present. He accordingly submits that the judge should have taken the starting point appropriate to a lesser role.
21.
The judge was fully apprised of all the circumstances of the case and was in the best position to assess the comparative roles and culpability of the many conspirators. In our view, he was entitled to find that Poole played a significant role. Focusing on the two key points highlighted by the judge in his sentencing remarks, neither the use of the EncroChat device, nor the travelling of appreciable distances to different parts of the country, can be said to reflect a limited function under direction and a lack of awareness of the scale of the operation. They are more consistent with the performing of an operational function within a chain, and with some awareness and understanding of the scale of the operation. We regard the use of the EncroChat device as particularly significant, notwithstanding that it was only loaned to Poole for use during each trip: quite apart from the financial cost to Raja of that device, it would only be entrusted to someone who could be relied upon to keep it secure and to avoid any revelation, whether to the police or to rival drug dealers, of its "handle", or of the information it contained. It would, moreover, serve as a clear indication to the person to whom it was temporarily provided that the person in full control of it was operating at a serious level of criminal activity. As a discrete further point, we are not persuaded by the submission that the sums received by Poole amounted to no more than a modest financial gain.
22.
We are therefore unable to accept the submission that the judge mischaracterised Poole's role. Mr Canning realistically accepts that if the categorisation was not incorrect, there can be no successful criticism of the judge's decisions as to the appropriate sentence after trial and as to the appropriate credit for the guilty plea.
23.
For those reasons, Poole's appeal fails and is dismissed.
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______________________________ | {"ConvCourtName": ["Crown Court at Leicester"], "ConvictPleaDate": ["10th January 2023"], "ConvictOffence": ["large-scale drugs conspiracy", "conspiracy to supply a controlled drug of Class A, namely cocaine"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["guilty plea on the day of trial"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Harrow", "Crown Court at Leicester"], "Sentence": ["ten months' imprisonment", "six years and eight months' imprisonment"], "SentServe": ["concurrent", "consecutively"], "WhatAncillary": ["data not available"], "OffSex": ["Toby Poole", "Matthew Wharlow"], "OffAgeOffence": ["Poole is now aged 45", "Wharlow is now aged 32."], "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": ["EncroChat device"], "DefEvidTypeTrial": ["He asserted, but the prosecution did not accept, that he had no awareness of the wider conspiracy", "performing a limited function under direction; no influence on those above in the chain; very little, if any, awareness or understanding of the scale of the operation; and expectation of limited, if any, gain.", "that the lesser role"], "PreSentReport": ["no pre-sentence report in relation to either of the appellants"], "AggFactSent": ["His previous convictions included one in 2012 for an offence of producing cannabis", "The conspiracy period charged in the indictment ran from 1st March 2020 to 22nd September 2020. A group based in Leicester, some of whom used EncroChat devices, bought very large quantities of cocaine and sold it to other cocaine dealers.", "had played a significant role", "large-scale drugs conspiracy", "bought very large quantities of cocaine and sold it to other cocaine dealers", "20 kilograms of the drug in one transaction alone"], "MitFactSent": ["Copy link to this paragraphNeither appellant had previously received any custodial sentence"], "VicImpactStatement": ["data not available"], "Appellant": ["sentenced the two appellants"], "CoDefAccNum": ["two appellants, and more than 20 other men"], "AppealAgainst": ["against his sentence"], "AppealGround": ["judge's categorisation of his involvement in the offending as a significant role", "judge fell into error in his application of the Sentencing Council's definitive guideline on totality", "the judge should have taken the starting point appropriate to a lesser role"], "SentGuideWhich": ["section 11(3) of the Criminal Appeal Act 1968."], "AppealOutcome": ["dismissed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["that the lesser role"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["he was entitled to find that Poole played a significant role"]} | {"ConvCourtName": ["Crown Court At Leicester"], "ConvictPleaDate": ["2023-01-10"], "ConvictOffence": ["conspiracy to supply a controlled drug of Class A, namely cocaine", "large-scale drugs conspiracy"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know", "guilty plea on the day of trial"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court At Harrow", "Crown Court At Leicester"], "Sentence": ["six years and eight months' imprisonment", "ten months' imprisonment"], "SentServe": ["Concurrent", "Consecutively"], "WhatAncillary": ["Don't know"], "OffSex": ["All Male"], "OffAgeOffence": ["45", "32"], "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": ["EncroChat device"], "DefEvidTypeTrial": ["performing a limited function under direction; no influence on those above in the chain; very little, if any, awareness or understanding of the scale of the operation; and expectation of limited, if any, gain.", "offender claims to have had a lesser role in offence/co-offenders had more significant role", "He asserted, but the prosecution did not accept, that he had no awareness of the wider conspiracy"], "PreSentReport": ["Don't know"], "AggFactSent": ["20 kilograms of the drug in one transaction alone", "had played a significant role", "His previous convictions included one in 2012 for an offence of producing cannabis", "profit from crime", "organised offence", "large-scale drugs conspiracy"], "MitFactSent": ["Copy link to this paragraphNeither appellant had previously received any custodial sentence"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["20"], "AppealAgainst": ["against his sentence"], "AppealGround": ["the judge should have taken the starting point appropriate to a lesser role", "judge's categorisation of his involvement in the offending as a significant role", "judge fell into error in his application of the Sentencing Council's definitive guideline on totality"], "SentGuideWhich": ["section 11(3) of the Criminal Appeal Act 1968."], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["offender claims to have had a lesser role in offence/co-offenders had more significant role"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["judge correctly categorised offence and appellant's role in the offence"]} | 549 |
Case No: 2002/04303/Z5 & 2002/04304/Z5
Neutral Citation No:
[2003] EWCA Crim 2668
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MIDDLESEX GUILDHALL
HHJ Smith
Royal Courts of Justice
Strand, London, WC2A 2LL
16 October 2003
Before :
LORD JUSTICE RIX
MR JUSTICE DOUGLAS BROWN
and
SIR RICHARD TUCKER
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
- and -
Rafiq PETKAR & Martin FARQUHAR
Appellants
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Patrick Roche
for the appellant Petkar
Mr Jeffrey Clarke
for the appellant Farquhar
Mr Richard Milne
for the Crown
Hearing dates : 20
th
June & 25
th
July 2003
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT
Lord Justice Rix:
1.
These are the appeals of Rafiq Petkar and Martin Farquhar who were convicted on 17 June 2002 in the Crown Court at Middlesex Guildhall before HH Judge Smith and a jury, at a re-trial, by majority verdicts of 11:1 on two counts of theft. On 28 June 2002 both were sentenced to 5 years imprisonment on each count concurrent. A third count against Petkar of concealing or transferring the proceeds of criminal conduct was left on the file.
2.
Petkar appeals against conviction with the leave of the full court and renews his application for leave to appeal against sentence. Farquhar’s renewed application for leave to appeal against conviction came before us on 20 June 2003 at the same time as Petkar’s appeal. Since that renewed application raised in part the same ground as that on which Petkar had already been given leave to appeal, we granted leave to Farquhar for that (and two other) grounds and were compelled to adjourn the hearing of Petkar’s appeal part heard so that what had then become two linked appeals could be taken together. Fortunately, this court could be reconstituted without too much delay and we heard the two appeals together on 25 July 2003. We then gave leave for a further ground of appeal to be raised by both appellants, arising from the recent decision of this court in
R v. Jones and Jenkins
[2003] EWCA Crim 1966
(6 June 2003). At the close of the hearing we announced our decision that both appeals were dismissed with reasons to be reserved. We then proceeded to give Petkar leave to appeal against sentence and allowed that appeal, substituting a sentence of 4 years and 6 months for the original 5 years. Our reasons for these decisions are now contained in this judgment.
The structure of the trial
3.
Petkar and Farquhar were both employees of the Industrial Bank of Japan (“IBJ”) in the City of London until October 1998 in the case of Petkar and December 1998 in the case of Farquhar. At that time Petkar was 37 years old and Farquhar 28. On 27 November 1998 Farquhar transferred £420,000 from IBJ to an account at Barclays Bank in the name of Graceland Investments Limited, of which Petkar was the sole director. Barclays sent the money back to IBJ’s account with the Midland Bank on 1 December, but while that was in train and before that had happened, on 30 November Farquhar transferred a further sum of £420,000 from IBJ this time to a personal account in the name of Petkar at the Halifax.
4.
Farquhar did not dispute that he had made both transfers, nor did Petkar deny that he had received them. However Petkar’s case was that he believed that the money belonged to Farquhar himself and came from Farquhar’s own bank, the Jyske Bank, and had been transferred to him to invest on Farquhar’s behalf. Farquhar’s case, on the other hand, was that he knew the transfers were dishonest but that he acted under the duress of Petkar and his associates. Theirs was thus a full cut-throat defence, for each defendant’s evidence, if believed, was deadly to the other; but the failure of any one defence did not automatically put the co-defendant in peril. Farquhar’s defence of duress could fail absolutely without harming Petkar in the slightest. Similarly Petkar’s defence could fail without impinging on Farquhar’s case of duress.
5.
Following the first transfer to Graceland’s account there was a same-day transfer over to Petkar’s personal account at Barclays. Following the second transfer, a total of £310,000 was taken out in cheques or drafts or electronic transfers on 1 December 1998, much of that in payments to gambling casinos. In the event the only sums recovered following Petkar’s arrest was a balance of £21,526 in Petkar’s Halifax account and a further sum of £91,762 to the credit of Petkar’s trading account with Refco Overseas, a broker based in Bermuda: a total of £113,288. That £91,762 with Refco was what remained of a total of £125,000 transferred by Petkar to Refco: the balance of £33,238 had gone to fund margin losses previously incurred by Petkar on his own trading. What had happened to the remaining £273,474? Petkar’s evidence was that £40,330 had been spent on himself, either in settlement of outstanding bills or in fresh spending: this sum could be substantiated by reference to documents. He also accepted a certain amount of cash spending. All in all, he accepted that £198,000 of the £420,000 had been either spent on himself or transferred to Refco, but he maintained that the balance of £222,000 had been given back to Farquhar, at his request, in cash, in stages between 3 and 13 December 1998. These transfers were not documented. Two cash withdrawals from the Halifax account of £18,000 on 3 December and £24,000 on 9 December were both said by Petkar to have been handed over to Farquhar as part of this process.
6.
That was the evidence at trial. At the time of his arrest and first interview on 31 December 1998, however, Petkar told the police, when asked what had happened to the money, that it had all been returned to Farquhar. He explained that the money had been sent to him by Farquhar from Jyske to trade with, but that he had returned it all. He would have profited from the trades generated had the matter proceeded, but as it was all the money had been returned. He was also asked if he had had a written contract with Farquhar concerning the terms on which he was to deal with the money, and he said that he did not.
7.
A fortnight later, however, on 15 January 1999, Petkar contacted the police to inform them that not all of the money had gone back to Farquhar. He then gave them the essentials of the information we have set out above and faxed them a copy of the statement of his Halifax account. The information that he then provided to the police remained his case at trial. The Crown did not dispute that some £222,000 or approximately half of the £420,000 had been provided in cash to Farquhar. Thus at trial Petkar accepted that what he had told the police originally about returning all the money to Farquhar was a lie. Farquhar denied receiving anything, and there was no direct evidence, other than Petkar’s, that he did.
8.
Petkar also accepted that he had lied in telling the police on the day of his arrest that he had no contract with Farquhar. In fact a document dated 30 November 1998 and purporting to be signed by Farquhar (there was ambivalent evidence at trial from two handwriting experts called by the defendants respectively as to whether the signatures were genuine or not) was already at that time in the hands of Petkar’s solicitor, Mr Murrell, and had been since 21 December. Mr Murrell was to give evidence that the contract came to him in connection with a dispute between Petkar and Barclays over the return of the first transfer and Petkar’s subsequent closure of all his Barclays accounts. That contract was not, however, disclosed to the prosecution until April 2000.
9.
Farquhar, however, denied receiving any of the money. He had tendered his resignation to IBJ on 27 November 1998, the date of the first transfer, but had been asked to work out his notice. His last day at IBJ was 9 December. He left for Ireland on 12 December and arrived unannounced at the home of his girlfriend, Karen Sweeney, in Dublin on 13 December. He was later to say that he left to escape the attention of Petkar. He did not return to England until April 2001, nearly two and a half years later, after learning, as he said, from a friend who had watched the Irish equivalent of “Crime Watch” that he was wanted in connection with “something about London or the UK” but he did not know what. At that time Petkar was shortly due to stand trial.
10.
Following his return he contacted the police through his solicitor and was interviewed. He began by denying any knowledge whatsoever of the two transfers of £420,000. (They had been made using the passwords of colleagues at IBJ.) Indeed, he claimed not to have known Petkar other than through limited contact within the work setting and denied any friendship or association with him. He denied asking Petkar to invest money on his behalf. He denied receiving any money from Petkar. When, however, the police informed him that they held transcripts of phone calls between him and Petkar and wished to question him about them, he declined on the advice of his solicitor to answer any further questions. Thus he made no admissions and said nothing about duress at that time.
11.
His defence of duress was first exposed at a plea and directions hearing on 13 June 2001.
12.
On 15 July 2001 there was an alleged incident at his home, where pellets holes were found in his front door. The next-door neighbour had heard nothing, but the next day a cartridge case was found. The police attended. On 25 September 2001, the night before he was due to give evidence at the first trial – which had been adjourned to accommodate him being prosecuted together with Farquhar – there was another alleged incident involving Farquhar and his car: three discharged rounds were found in the road, one bullet was found in the car’s head rest, another bullet had gone through the head rest, and a third bullet mark was found in the road. The police again attended. As a result the first trial had to be aborted: hence the need for a retrial. There followed a police investigation, conducted independently of the police force involved in the prosecution, into whether the shootings were the responsibility of Petkar, as Farquhar alleged, or whether they were arranged by Farquhar himself in an attempt to pervert the course of justice. The investigation proved inconclusive and led to no prosecutions. At the retrial the Crown therefore considered itself required to take an entirely neutral attitude to these events, and cross-examined neither defendant about them. However, the officer in charge of the investigation, DS Beverley Mills, was tendered for cross-examination and each defendant gave evidence and was cross-examined on behalf of the other about these incidents; and in all other respects the Crown clearly set before the jury its evidence that Farquhar had been a willing actor not driven by duress.
13.
Among that evidence were the tape recordings and transcripts of telephone conversations between the two defendants in the period between 26 November and 5 December 1998. Their voices were identified. Thus on 27 November at 1631 Farquhar is talking to a friend by the name of Mike and says: “Going, everything is gone to plan, mate…I just resigned…There’s a lot going on, I’ll tell you when I see you.” When asked whether he had another job, Farquhar replied: “Yea, and some other things as well.” 27 November was the day of the first transfer and Farquhar’s resignation. On 30 November, the day of the second transfer, Petkar telephones Farquhar at 1054 and says: “Go into another room and call me back. I have a small problem, they’ve returned the 420 back to Midlands [IBJ’s bankers].” At 1140 the same day Petkar rings Farquhar again and says: “I just spoke to Barclays again this morning, just a few minutes ago, and they have returned the funds this morning, so they definitely will show up this morning or this afternoon or during the day some time.” Farquhar replied: “Yea so you still want me to make them do the thing again today…” At 1447 Farquhar called Midland Bank, asked if the £420,000 paid to Barclays the previous Friday was back into the IBJ account with the Midland and gave new instructions for the second transfer. On 1 December at 0906 Farquhar rang the Midland to chase whether the first transfer had come back. At 1016, during a conversation between Petkar and Farquhar, there is a reference to “everything is fine” and “you know our money”.
14.
We will refer to other aspects of the evidence below.
15.
The main ground of appeal in the case of both appellants relates to the judge’s directions pursuant to
section 34 of the Criminal Justice and Public Order Act 1994
. At the conclusion of the evidence and prior to final speeches during a discussion on the law the judge indicated that he intended to give the jury a
Lucas
direction on lies and a
section 34
direction in respect of both defendants. There was no objection at that stage. During final speeches the Crown, then as now represented by Mr Milne, did not deal with the question of adverse inferences; but Mr Roche, then as now counsel on behalf of Petkar, did, giving them reasons why they should not hold Petkar’s lies in interview about the existence of the contract and the return of all the money against him. It is not clear what Farquhar’s counsel, then as now Mr Clarke, said on this subject in his final speech, but we will assume, with some hesitation, that he took the same line. On 14 June 2002, after final speeches but immediately before the summing up, Mr Roche on behalf of Petkar addressed the judge to the effect that he should direct the jury not to draw adverse inferences, alternatively to be precise as to the adverse inferences which might be in play. The judge rejected the first submission, and said he would be guided by the model direction set out in
Archbold
which Mr Milne drew to his attention. In the course of discussion, however, the judge had expressed concern about the multiplication of merely possible inferences. He said:
“I think that as long as I tell the jury the framework of law and remind them of the salient facts, I don’t think it’s desirable for me to suggest a lot of inferences which might not be in their mind anyway.”
The grounds of appeal
16.
Two grounds of appeal are shared by both appellants. The first, which I shall call ground 1, is, as we have just indicated, that the judge’s
section 34
direction was defective. Five complaints are made:
(i)
that the judge failed clearly to identify the relevant inferences which the jury might draw;
(ii)
that the judge failed to warn the jury that they should not convict wholly or mainly on the strength of an adverse inference;
(iii)
that the judge failed to direct the jury that they could only draw an adverse inference if satisfied that the prosecution had established a prima facie case;
(iv)
that the judge failed to direct the jury that they could only draw an adverse inference if they concluded that the only sensible explanation for the defendant’s failure to mention the salient fact was that he had no answer at the time or none that would stand up to scrutiny; and
(v)
the judge failed to remind the jury of the explanations given by the appellant for the appellant’s failure to mention facts.
17.
In all, it was submitted on behalf of both appellants that these defects either singly or in combination fundamentally flawed the judge’s
section 34
direction.
18.
The second ground shared by both appellants (“ground 2”) is that the judge failed to give the jury an appropriately structured, or indeed any, warning about the danger of relying on the evidence of each defendant as against the other: see
Jones and Jenkins
.
19.
The other two grounds concern only Farquhar. One relates to the way in which the judge introduced in his summing up the evidence which Farquhar’s grandmother, Mrs Winifred Wells, gave by way of statement admitted, following her death, under
section 23 of the Criminal Justice Act 1988
. The judge said that her statement “is not accepted and has not been tested in court”. Mr Clarke submits that the judge was wrong to say that the statement was not accepted in circumstances where, although it was not accepted by Petkar, the Crown was merely neutral (“ground 3”).
20.
Finally, Farquhar relies on some new evidence of Petkar’s accounts which only emerged after conviction in the course of confiscation order proceedings against him. A previously undiscovered personal account of Petkar came to light at the Royal Bank of Scotland (“RBS”), Ealing branch. Investigation showed that between October 2000 and June 2002 a total of some £177,000 had passed through this account. Mr Clarke submitted that these sums could explain the disappearance from sight of (at any rate a large part of) the £222,000 which Petkar said he had handed over to Farquhar in December 1998; and that if the jury had known of these sums they might have been more willing to accept Farquhar’s case that he had received none of the stolen money (“ground 4”).
21.
Before we turn to each of these four grounds in turn, we need to say something further about the evidence given at trial.
The prosecution evidence
22.
Witnesses from the IBJ gave evidence about the two defendants and the bank’s operations. Petkar had been employed as a consultant from 1996 to 31 October 1998, when his contract expired, working on complex derivative problems. Farquhar worked in a different department, known as the cash management team, which was concerned with backroom preparation of accounting journals and matching of payments. He had commenced work with the bank on 6 July 1998 as a temporary, became a permanent member of staff shortly thereafter, and resigned, as we have said, on 27 November 1998. He was regarded as intelligent and hard working. He was not authorised to make payments.
23.
A witness from Barclays Bank, Mr Sones, gave evidence about the first transfer and the circumstances in which that was returned. Barclays was suspicious about it, and Mr Sones spoke to Petkar requesting its return. By the time that Mr Sones had been advised that it could not be refused, Petkar said he had made alternative arrangements and wished to close his Barclays accounts, which he did on 30 November. In the circumstances all the arrangements which Petkar had made to deal with the money had to be reversed or alternatively were not acted on. Among those arrangements were instructions dated 30 November to make the following transfers: £100,000 to Petkar’s account with Citibank; £100,000 to Petkar’s account with the Halifax; £150,000 to Refco for “margin requirements”; and £26,000 in repayment of two loans. A critical question in the light of Petkar’s defence was whether there was any evidence that he knew that the first transfer had come from IBJ and not Jyske. Mr Sones said he was aware that the money had come from IBJ but was unable to say whether that had been discussed with Petkar. However, a letter generated by these transactions, which also involved sending a cheque to Petkar, referred to IBJ. Petkar accepted receiving the cheque, but not the letter. The letter was not found at Petkar’s home; but Mr Sones was confident that he had sent it with the cheque: it was the letter which carried Petkar’s address in a window envelope. A Barclays bank statement for the Graceland account, dated 2 December, detailing the transfer as coming from IBJ was found at Petkar’s home: but Petkar said he would have filed it without even looking at it.
24.
There was also evidence about Petkar’s visits to casinos. These had increased in early December, and on one occasion he had Farquhar with him as his guest. And on 3 December he had bought himself a Mercedes and paid £4,000 as a deposit, using the transferred funds to do so among other use of those funds for his spending, and debiting his Halifax account for future instalments due in respect of finance for the car.
25.
Ms Sweeney’s statement was also admitted under
section 23
of
the 1988 Act
, because she had refused to come over from Ireland to give oral evidence. She said that Farquhar had turned up on 13 December 1998 and stayed about a fortnight. She expressed surprise that he had left his job at IBJ, and he said that he had a claim, but she was not sure what that was a reference to. He paid six months rent in advance for an apartment and was flashing money around. He suggested she should tell her mother that if the police came looking for him, she did not know him.
26.
There was also evidence that in Ireland Farquhar opened a TSB account in the name of Mark Holland, assisted by a false job reference, a copy of a non-existent account in Rotterdam, a false accountant’s report and a copy of a false passport. He then changed his name on 25 February 2000 by deed pole to Ferguson, using an accommodation address in Croydon and used that name in forming a publishing company. He subsequently reverted to the name of Mark Holland in buying a house on 29 January 2001.
Petkar’s evidence
27.
Petkar said that he had worked for some years in trading in financial markets. He had set up two companies of his own, one (Gracelands) for trading in derivatives and the other (Magenta Forex) for trading in foreign exchange. He had dealings with Refco. He had got to know Farquhar at IBJ. They talked about trading: Farquhar was interested and wanted to become a dealer. Farqhuar told him that he had money “outside” which he wanted Petkar to invest for him. Petkar gave him details of his bank accounts. A week before 27 November 1998 Farquhar phoned him (Petkar had left IBJ by then) to say that he was going to transfer £420,000 of his own money to him, from Jyske. He was pressed on how he could have thought that a young man in a relatively junior position at IBJ had so much money of his own: he replied that Farquhar had told him that he was just killing time at the bank and that he believed him.
28.
As for the contract, Petkar said that was signed by Farquhar on 30 November in a bar in Piccadilly. Its termination date reflected the fact that the money would be needed for at least a year.
29.
He was asked why the first transfer to Graceland had been transferred immediately to his personal account. His answer was that it was much easier to transfer money that is one’s own rather than a company’s. He was asked to explain the payment instructions generated by the first transfer: he said that having missed a projected deal because of the trouble with Barclays, he was going to use the money himself, and would repay Farquhar “from some fund or other”. Farquhar would probably have objected, but would have accepted it after he had explained how it would come back from a future trade. “I would have repaid every penny. I had the whole thing on a spreadsheet in my computer, which the police took, and now it is no longer accessible.”
30.
He explained the large amounts of money paid to casinos out of the second transfer in the form of drafts as a device to enhance his credit, especially with potential clients: he denied that it was an attempt to launder the money.
31.
He said that large amounts of cash had been paid to Farquhar. Despite the request to invest the £420,000 on Farquhar’s behalf, Farquhar had within a day or two of the second transfer requested him to return £100,000 in cash. The first tranche was handed over on 3 December, the same day he had withdrawn £18,000 from his account in cash. £143,000 of cash was generated from the casinos. He met Farquhar several times at night, mostly at his own flat, to hand the cash over, in all £222,000.
32.
He was asked about a letter he had written to the Financial Services Authority (FSA) on 15 December, in which he said that he had only one client (a Mr Zimmerman). He said nothing about Farquhar. He admitted that was a lie.
33.
On 30 December he wrote another letter, this time to the Halifax, in which he said that the £420,000 was a short-term loan from Farquhar, since repaid. He admitted that was also a lie.
34.
It was only on 31 December that he discovered that the money had come from IBJ. That morning, after finding that his Halifax account had been frozen, he phoned head office and learned that that had been done at the request of IBJ. So he spoke to IBJ, who told him that the money had come from it. He spoke to a senior manager, Kevin Merry, at IBJ several times that day. He told him that he had returned all the money to Farquhar and that he had nothing to do with it. At that very time he still had over £100,000 of IBJ’s money. On the same day he was arrested and interviewed by the police and also told them that he had returned all the money to Farquhar, and that he had no contract with him, only a verbal arrangement. All this were also lies.
35.
Why had he lied? The judge summed up his explanations as follows (at 49/50):
“The reason I was saying that I had none of the money was I was trying to distance myself from the situation. I lied at that time but everything I have said in court was the truth…
“I was telling [IBJ] that I was not a party to this theft and I was going to help them to recover the money. I suppose I would have gradually told them that I had some of it with me or available. Kevin Merry, however, never did call me in. I asked him what I should do and he [said]: Sit tight where you are.”
“I lied during the interviews. I did them without a solicitor when I said that all of the – money had gone to Martin Farquhar. I said that because that was the same that I said to [IBJ]. So I continued with that lie.
“The reason I told the police I had no written contract over the investment was because of my problems with the [FSA]. I was frightened and I did not want to show anyone the contract.”
36.
As for Farquhar’s defence of duress, he denied it. He denied having anything to do with the holes in Farquhar’s front door or with the car. He was never called for a police interview in respect of these incidents.
Farquhar’s evidence
37.
Farquhar said he had always worked in financial markets since leaving school, and wanted to become a dealer in shares and options. He got to know Petkar, was impressed by the Reuters screen that he had on his desk, and let him know of his ambition to become a trader. Petkar said he would put in a good word for him. They visited bars in the West End together, and went to casinos some three or four times. One night Petkar introduced him, albeit not by name, to a couple of black guys, who he thought were called Gary and Ritchie. He told him they were proper criminals, and had been involved in armed robbery. The week before 27 November Petkar had invited him to his flat. Gary and Ritchie were there.
38.
Petkar led the conversation, talking about an investment scheme. After a while Gary interrupted: “Fucking tell him!” At this Petkar said that he wanted him to transfer money from IBJ for a few days, when it would be returned. He refused, not sure whether it was some kind of personality test. Gary took out a knife and started chopping cocaine, then waved the knife in front of him, threatening him if he did not do what was asked. Petkar explained that it would only be for a few days, and it was his job to tidy up the paperwork afterwards. Before he left, Gary grabbed him by the hair and threatened him again. A few days later he saw the two men outside his home, where he lived with his 82 year old grandmother, Mrs Wells, and was again threatened.
39.
All the details of the two transfers were given to him by Petkar, albeit the decision to use his colleague’s password was his own idea: “I did not want my name all over the payments.” He resigned not out of fear of Petkar, but as a way of getting out of the problem. He was pleased to learn that the first transfer had failed. However, Petkar spoke to him on his mobile, ranting and raving, to get him to make the second transfer and threatening to send “the boys” to kick shit out of his nan. As for the transcribed phone-calls, Petkar could make himself sound nice, and he, Farquhar could sound brave.
40.
He went to Ireland to get away from Petkar, but also as the one place “where you could find me”. The false names he used there thus had nothing to do with hiding from the police: to get a house it was necessary to use a “credit package” in the name of Mark Holland, and the change to Ferguson was because he did not like the name Farquhar. He never told Ms Sweeney to tell her mother that she did not know me.
41.
As for his police interview on his return to England, he merely wished to say as little as possible, to be non-committal.
Ground one: the
section 34
direction
42.
Section 34
provides:
“(1) Where in any proceedings against a person for an offence, evidence is given that the accused –
“(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,
being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, sub-section (2) below applies.
“(2) Where this sub-section applies – …
(d) the court or jury, in determining whether the accused is guilty of the offence charged,
may draw such inferences from the failure as appear proper.”
43.
This provision has given rise, in the light of authority, to a model direction recommended by the Judicial Studies Board of some elaboration, which is set out in
Archbold
, 2003, at para 15-334 as follows:
“1. Before his interview(s) the defendant was cautioned. He was first told that he need not say anything. It was therefore his right to remain silent. However, he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court; and that anything he might say might be given in evidence.
“2. As part of his defence, the defendant has relied upon
(here specify the facts to which the direction applies)
. But [the prosecution say/he admits] that he failed to mention these facts when he was interviewed about the offence(s). [If you are sure that this is so, this/This] failure may count against him. This is because you may draw the conclusion from his failure that he [had no answer then/had no answer that he then believed would stand up to scrutiny/ has since invented his account/has since tailored his account to fit the prosecution’s case/
(here refer to any other reasonable inferences contended for)
]. If you do draw that conclusion, you must not convict him wholly or mainly on the strength of it; but you may take it into account as some additional support for the prosecution’s case and when deciding whether his [evidence/case] about these facts is true.
“3. However, you may draw such a conclusion against him only if you think it is a fair and proper conclusion, and you are satisfied about three things: first, that when he was interviewed he could reasonably have been expected to mention the facts on which he now relies; second, that the only sensible explanation for his failure to do so is that he had no answer at the time or none that would stand up to scrutiny; third, that apart from his failure to mention those facts, the prosecution’s case against him is so strong that it clearly calls for an answer from him.
“4.
(Add, if appropriate:)
The defence invite you not to draw any conclusion from the defendant’s silence, on the basis of the following evidence
(here set out the evidence)
. If you [accept this evidence and] think this amounts to a reason why you should not draw any conclusion from his silence, do not do so. Otherwise, subject to what I have said, you may do so.”
44.
The fifth paragraph deals with an alternative or additional paragraph to deal with the situation where legal advice to remain silent has been relied upon, as it was in the case of Farquhar. In the present case, however, no complaint is made on behalf of Farquhar about the judge’s direction from this point of view, although it was much briefer than the model direction.
45.
The judge, following a direction on lies which Petkar had sought to make in itself the subject matter of a ground of appeal, but on which he did not obtain leave to appeal, gave a
section 34
direction in the following terms:
“The next thing is what happens if a person is being questioned by the police, the modified right of silence, so to speak, we had for the last five or six years. If a person is proceeded against for an offence, as both defendants were, and when they are questioned by the police if one or either of them fails to mention a fact relied on in his defence in the trial: if it is something which in the circumstances at the time you take the view he could reasonably have been expected to mention under questioning, then, you may draw inferences from the fact that he did not mention it.
“And I do not want to be specific here but such inferences where he had not thought it up, he had not decided on his defence, he had not decided whether to make use of that particular thing, it is entirely a matter for you.
“Examples here, and they are only examples, the fact that Mr Petkar failed to mention the contract, although it seems that the solicitor had a copy or that he had not repaid or he had not passed on the whole of the money to Mr Farquhar.
“In Mr Farquhar’s case, he did not mention the threat of the two men, Ritchie and Gary, at all. Said he knew nothing about the transactions. Those are examples of how this might apply here.
“It does not affect the right of silence in the sense that nobody has to answer questions and the prosecution must still prove the case against them and they have got to have something by way of evidence, other than merely…that the defendant did not mention part of his defence. And it is for you to decide whether it is right to draw any inference, you do not have to.”
46.
It will be straightway observed that the judge did not in that direction refer to the matters of explanation relied on by the defendants for their silence or lies, as per para 4 of the JSB model. He did, however, refer to them elsewhere, in summing up each defendant’s evidence as a whole (see paras 35 and 41 above). It is submitted on behalf of the appellants that that is not good enough.
47.
We have been referred to a number of authorities about the
section 34
direction. Thus in
R v. Condron
and Condron
[1997] 1 Cr App R 185 this court said at 195A that it was desirable that a direction should be given along the lines previously indicated in
R v. Cowan Gayle and Riccardi
[1996] QB 373 at 381 as necessary in a direction under section 35 of the same Act concerning a defendant’s silence at trial. Lord Taylor of Gosforth CJ had there identified five “essentials”:
“1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the required standard is.
2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice…
3. An inference from failure [to give evidence/to mention a fact] cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act.
4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence…
5. If, despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to [cross-examination/scrutiny], they may draw an adverse inference.”
And in
R v. Argent
[1997] 2 Cr App R 27 at 32/33 Lord Bingham of Cornhill CJ analysed
section 34
as requiring six formal conditions, of which the fifth and sixth are relevant to mention: namely (5) that the alleged failure by the defendant must be to mention any fact relied on in his defence; and (6) that the failure is to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention. Those two matters are of course taken directly from the language of the statute.
48.
In the light of Petkar’s 15 January 1999 disclosures to the police relating to the disposition of the £420,000 (correcting his earlier lie at interview that all the money had been returned to Farquhar) Mr Roche on behalf of Petkar drew our attention to the relevance of the following remark of Stuart-Smith LJ giving this court’s judgment in
Condron
at 197E:
“Moreover, it is always open to an accused person who has failed to mention some important fact at interview, to communicate it to the police at any time before trial; but unless it is done promptly, it is unlikely to rebut any inference which might otherwise be drawn.”
49.
In
R v. Birchall
[1999] Crim LR 311, a case on section 35, the judge had failed in his direction to remind the jury that they had to find a case to answer before drawing any adverse inference from the defendant’s silence at trial (the fourth of Lord Taylor’s five essentials in
Cowan
). The appeal was allowed, since after the consideration of new evidence this court did not consider the Crown’s case called for an answer. However, this court, presided over by Lord Bingham CJ, referred, in the language of the report’s extract, to the model directions in these terms:
“The Court was reluctant to countenance the view that direction of a jury called for the mouthing of a number of mandatory formulae, and departure by the trial judge from a prescribed form of words would by no means always justify the upsetting of a jury’s verdict. However, standard directions were devised to serve the ends of justice and the Court must be astute to ensure that these ends were not jeopardised by failure to give directions where they were called for. The drawing of inferences from silence was a particularly sensitive area…”
50.
In
R v. Chenia
[2002] EWCA Crim 2345
(1 November 2002) on the other hand, where a
section 34
direction again failed to contain the fourth essential relating to a case to answer, Clarke LJ said this (at para 53):
“It would in our view have been desirable for the judge to include a direction of the kind suggested, namely that no question of drawing an adverse inference could arise unless the jury were sure that there was a case to answer. However, we do not think that this trial could possibly be held to be unfair or the conviction unsafe on that ground. That is because no jury could possibly have concluded that there was no case to answer on the facts.”
51.
In the light of the current model JSB direction, it might be said that, in addition to or else in amplification or clarification of the statutory conditions emphasised in
Argent
and the five essentials emphasised in
Cowan
and
Condron
, the following matters should be set before a jury in a well-crafted and careful direction:
(i) The facts which the accused failed to mention but which are relied on in his defence should be identified: see para 2 of the model direction and
Chenia
at paras 87/89, where Clarke LJ said that this requirement must be approached in a common-sense way.
(ii) The inferences (or conclusions, as they are called in the direction) which it is suggested might be drawn from failure to mention such facts should be identified, to the extent that they may go beyond the standard inference of late fabrication: see para 2 of the model direction.
(iii) The jury should be told that, if an inference is drawn, they should not convict “wholly or mainly on the strength of it”: see para 2 of the model direction and
Murray v. United Kingdom
22 EHRR 29
at 60, para 47. The first of those alternatives (“wholly”) is a clear way of putting the need for the prosecution to be able to prove a case to answer, otherwise than by means of any inference drawn. The second alternative (“or mainly”) buttresses that need.
(iv) The jury should be told that an inference should be drawn “only if you think it is a fair and proper conclusion”: para 3 of the model direction. This is not stated in the statute, but is perhaps inherent in that part of it emphasised in Lord Bingham’s sixth condition. In
R v. McGarry
[1999] 1 Cr App R 377 at 383G this court glossed that condition as requiring a jury “not arbitrarily to draw adverse inferences”.
(v) An inference should be drawn “only if…the only sensible explanation for his failure” is that he had no answer or none that would stand up to scrutiny: para 3 of the model direction, reflecting Lord Taylor’s fifth essential in
Cowan
. In other words the inference canvassed should only be drawn if there is no other sensible explanation for the failure. That is analogous to the essence of a direction on lies.
(vi) An inference should only be drawn if, apart from the defendant’s failure to mention facts later relied on in his defence, the prosecution case is “so strong that it clearly calls for an answer by him”: para 3 of the model direction. This is a striking way to put the need, reflected in Lord Taylor’s third and fourth essentials in
Cowan
, for a case to answer. A note, note 16, to the JSB guideline explains that it reflects “a cautious approach”.
(vii) The jury should be reminded of the evidence on the basis of which the jury are invited not to draw any conclusion from the defendant’s silence: see para 4 of the model direction and
R v. Gill
[2001] 1 Cr App R 11
at paras 30/31. This goes with point (iv) above, because it is only after a jury has considered the defendant’s explanation for his failure that they can conclude that there is no other sensible explanation for it.
(viii) A special direction should be given where the explanation for silence of which evidence has been given is that the defendant was advised by his solicitor to remain silent: see para 5 of the model direction.
52.
We now turn to the five defects of which complaint is made by Petkar, and mutatis mutandis by Farquhar (see para 16 above). We immediately observe that no complaint is made about Lord Taylor’s first two essentials, or Lord Bingham’s fifth and sixth statutory conditions, or points (i), (iv), (vi), or (viii) which we have derived from the model direction. Complaints are, however, made about Lord Taylor’s third, fourth and fifth essentials, and about points (ii), (iii), (v) and (vii) above.
53.
The first complaint, which reflects point (ii) above, is that the judge failed clearly to identify the inferences which the jury might draw. In this connection Mr Roche and Mr Clarke (the latter, for efficiency, essentially adopted the submissions of the former) relied on
R v. J.O.
(CACD, 9 June 2000, unreported) where
Tuckey LJ said (at paras 20/22):
“20. Once the preconditions to the operation of
section 34
are satisfied the jury are entitled to draw:
“such inferences from the failure as appear proper.”
“21. The usual inference which the jury are invited to draw is that at the time of the interview the defendant had no answer to the allegations being made against him or none that would stand up to questioning. In other words, his subsequent defence is a late fabrication or one which has been tailored to fit the prosecution case. But the prosecution in this case did not invite the jury to draw such inferences. In his directions to the jury the judge does not say what inference the jury could properly draw if they decided to do so. We think he should have done. He should have reminded the jury of the inference which the prosecution invited them to draw along the lines of the specimen direction.
“22…It was incumbent on the judge in his summing-up to identify the relevant inference.”
54.
J.O.
was a case where the accused of 16 had given a no comment interview on the advice of his solicitor. At trial the accused waived privilege and his solicitor gave evidence that the accused had given him before interview a very similar account of the incident to that which the defendant had himself given the jury at trial. The judge failed to tell the jury that they should only draw an inference against him if it was something which he could reasonably have been expected to mention. That was the critical defect found in the direction, but there was also the failure to identify the relevant inference referred to in the citation above. In the circumstances, it is not perhaps surprising that this court there found the conviction to be unsafe.
55.
In the present case, however, we do not think that there is force in this first complaint. The judge did illustrate as possible inferences that “he had not thought it up, he had not decided on his defence, he had not decided whether to make use of that particular thing”. However, he also said that he did “not wish to be specific here” and that ultimately any inference “is entirely a matter for you”. Possibly deliberately, he did not cite expressly the standard inferences which are found in both paragraphs 2 and 3 of the model direction, viz that “he had no answer at the time or none that would stand up to scrutiny”, which derive from within Lord Taylor’s fifth essential in
Cowan.
On reflection, we think that these inferences, which are evolved historically from the section 35 direction, are more suited to the case of a no comment interview than to the interviews given by either of the appellants here (although they would, we suppose, match Farquhar’s complete failure to suggest a defence based on duress). It can also be said that these standard inferences, perhaps for the very reason that they reflect a situation where an accused has effectively said nothing at all at his interview, if drawn, are likely to be particularly damning. In this case, on the other hand, the examples of inference cited by the judge well matched the significance of the appellants’ individual interviews seen against their ultimate cases at trial. The inferences suggested by the judge are of the kind which might contribute to a jury being satisfied of guilt, but are not in themselves so critical. Although the judge would have been entitled to have pointed out that Farquhar’s failure to mention a case of duress at his interview, if viewed by the jury as something which he could reasonably have been expected to mention, could well have invited the inference that “he had no answer at the time or none that would stand up to scrutiny”, there is always the problem in cases involving co-defendants of moulding a direction which does not expose one defendant more sharply than the other.
56.
An example of a case in which the inference canvassed was not the standard “no answer then or none that would stand up to scrutiny” is
R v. El-Delbi
[2003] EWCA Crim 1767
(20 June 2003), where (at paras 79/81) this court accepted the inference of “had not had a chance to prepare his story” as being its equivalent.
57.
We conclude that although it was unsatisfactory for the judge to leave other possible inferences in the air, this complaint, if it stood by itself, would not cause us to regard the direction as a whole as defective. However, it is closely connected with the fourth complaint, to which we come below.
58.
The second complaint is that the judge failed to tell the jury that they should not convict wholly or mainly on the strength of an inference. This reflects Lord Taylor’s third essential, and point (iii) derived from the model direction. Mr Roche submitted that the judge’s language that “the prosecution must still prove the case against them and they have got to have something by way of evidence, other than merely…that the defendant did not mention part of his defence” was unsatisfactory and insufficient. If it is so, it is because of the absence of that “or mainly”. On balance we conclude that the language “must still prove the case against them” goes well beyond merely telling the jury that there must otherwise be a case to answer, and therefore that the judge’s direction in this respect meets the spirit of what is required.
59.
The third complaint is that the judge had failed to direct the jury that they could only draw an adverse inference if they were satisfied that the prosecution had made out a prima facie case (see Lord Taylor’s fourth essential from
Cowan
). We consider that this requirement was well taken care of by that part of the judge’s direction which has been quoted in the previous paragraph. We reject this third complaint.
60.
The fourth complaint is that the judge failed to direct the jury that they should only draw an adverse inference if they concluded that the only sensible explanation for the defendant’s failure to mention something was that he had no answer at the time or none that would stand up to scrutiny. Mr Roche referred to Lord Taylor’s fifth essential, to para 3 of the model direction (see point (v) above) and to
R v. Daly
[2001] EWCA Crim 2643
,
[2002] 2 Cr App R 14
at para 13, where Kennedy LJ said:
“Turning to the second ground of appeal, we accept that if the jury was to be permitted to draw an inference a careful direction was required, for two interrelated reasons. First, there were matters on which the defendant was entitled to rely to explain the silence at interview, despite the form of the caution administered to him. [
Sc
Secondly,] At that stage he had not seen the video film, he was therefore unaware of the full weight of the prosecution case against him and in the light of his solicitor’s advice he may have been understandably reluctant to admit a lesser but still serious offence. That made it particularly important in this case for the judge to say to the jury that they should only be prepared to draw an adverse inference if satisfied that the only sensible explanation for the appellant’s failure to give in interview the explanation which he gave in his defence statement and at trial was that at the time of the interview he had no answer to the charge, or none that would stand up to questioning and investigation. It was important that the jury not be left at liberty to draw an adverse inference notwithstanding that it might have been satisfied with the plausibility of the appellant’s explanation for his silence (see
Condron v. United Kingdom
(2001) 31 E.H.R.R. 1
at paragraph 61 and
R. v. Betts and Hall
[2001] 2 Cr. App. R. 251, at paragraph 48).”
61.
The essence of this complaint relates to that part of the direction which insists that
no
inference should be drawn (see under para 45 above as to the possible inferences) unless there is no sensible explanation for the relevant failure to mention facts subsequently relied on. In the present case there is nothing in the judge’s direction which reflects this requirement. And yet the defendants did put forward explanations for their failures, even if it would be understandable if the judge did not consider that they amounted to much. This complaint moreover goes together with the fifth complaint, which is that the judge should have reminded the jury of those explanations, which he only did in a separate part of his summing up where he dealt with the defendants’ evidence and without relating that material back to the earlier direction on the right to silence.
62.
We think that there is substance in the combination of these complaints and that this amounts to a misdirection, even though this case was quite unlike
Daly
. There the accused made no comment at all in his interview, in circumstances where he was so advised by his solicitor and because his difficulty was that although he accepted presence and theft of some cards, he did not accept the theft of cash, nor any threat of violence.
63.
The question therefore arises whether this misdirection undermines the safety of the convictions, but before we reach that question we will consider the other grounds of appeal.
The second ground: a warning against the evidence of a co-defendant.
64.
The judge gave no direction at all to the jury about how they should regard, in the case of each defendant, the evidence of his co-defendant. He did, however, give a full direction about treating each of the defendants separately. He said:
“Now, you do obviously need to make separate decisions on each defendant and each count…
“As I have said, each defendant in effect blames the other and says the other is guilty. But that does not mean that if you decide to acquit one of them and then move on to consider the position of the other, you must find the other guilty.
“What you need to do really is to consider each defendant separately and consider the evidence for and against him and make your decision. Up to you which order you decide to take them in. You may find that they are both guilty or one or the other or you may not be sure about either.
“If you end up saying, “Well, on a particular £420,000 occasion I can’t be sure that Mr Petkar knew that this money came from [IBJ]. On the other hand, we cannot be sure that what Mr Farquhar did was not done through fear”: well, then, you do not have to find someone guilty. You must acquit them both because each is entitled to a separate decision as if they – almost as if they were in the dock alone.”
65.
At the time of this summing-up, the JSB model direction 26 headed “Defendant’s Evidence – Effect on Other Defendants” stated that where a defendant gives evidence in his own defence which damages a co-defendant’s case or tends to implicate a co-defendant in the commission of the offence for which he is being tried, the jury should be warned about that evidence in some such terms as the following:
“The defendant A has given evidence which [damaged B’s case] [tended to show that the defendant B was involved in some way in the commission of the offence(s) which you are trying.] Examine that evidence with particular care for A, in saying what he did, may have been more concerned about protecting himself than about speaking the truth. Bear that in mind when deciding whether you can believe what A has told you about B.”
66.
Of course, where each of two co-defendants gives such evidence, it might on that basis be thought that the judge would have to mould his direction to give matching warnings in favour of B against the evidence of A, as above, and in favour of A against the evidence of B. However, note 2 to this model direction read as follows:
“2. The above direction should not be given where co-defendants give evidence against each other. See
R v Burrows
[2000] Crim LR 48.”
67.
Prior to the
Criminal Justice and Public Order Act 1994
, it had been held that where one defendant gave evidence incriminating his co-defendant, just as in cases where an accomplice gave evidence for the prosecution, a full corroboration warning was desirable:
R v. Prater
[1960] 2 QB 464
. That authority, however was questioned in
R v. Knowlden and Knowlden
(1983) 77 Cr App R 94
, where it was held that that was not a rule of law but ultimately in the discretion of the judge: and that “the customary clear warning to examine the evidence of each co-defendant with care because each has or may have an interest of his own to serve” would in most cases suffice to ensure that the jury regarded the evidence in question with proper and adequate caution:
per
Watkins LJ at 100. In
R v. Cheema
(1994) 98 Cr App R 195, where the authorities were fully reviewed, Lord Taylor CJ said (at 202) that –
“The rule of practice that some warning, but not necessarily a full corroboration warning, is required where a witness,
e.g.
a co-defendant, may have a purpose of his own to serve was reaffirmed in
Knowlden
…”
and the passage at 100 from the judgment of Watkins LJ was cited.
68.
In
Burrows
, however,
Cheema
was distinguished. There two defendants were accused of possession of cocaine with intent to supply. The cocaine was inside a capsule within an Easter egg. Each defendant blamed the other for putting it there, and professed his own ignorance and innocence. Both were convicted and one appealed: his sole ground was that the judge had not warned the jury that particular care was required when one accused gave evidence against another. The brief report states:
“
Held
, dismissing the appeal, that the judge had faced a stark difficulty. Any warning would have had to apply to both defendants, and would have meant directing the jury to treat each defendant’s evidence with caution, just because it inculpated the other. That might have led to a complaint that the jury had not been allowed to approach the case with open minds. It was impossible in this case to give the normal warning. He did, however, underline the extreme care with which the jury should approach the allegations against each defendant, and in the circumstances the court could see no lack of safety in the verdict.”
69.
A note on the case by Professor Birch analysed the judgment in
Cheema
and continued (at 49/50):
“For all of these reasons, then, the right course of action in such a case was considered to be to steer what Lord Taylor called a “middle course”, giving a milder form of warning to the jury that the co-accused might have an axe to grind (or words to that effect). It does not appear that his Lordship would have exempted from this the case where the whole thrust of A’s evidence is to [place] blame on B (quite the reverse) and it is far from clear that he would have been persuaded to change his mind, at the time, if the facts were such that B’s evidence was equally damning of A. But that was before the law was changed: the “axe to grind” warning is no longer a “middle course”. Nowadays a
Makanjuola
warning, which might well take this form, is the most that can be given where an accomplice gives evidence for the prosecution. Thus it could well be that the case of the cut-throat defences equally requires a degree of reading down. Lord Taylor was an enthusiast for the abolition of corroboration warnings (see
Cheema
at p.205) and might well have ruled differently had
the 1994 Act
been in force.
“Be that as it may, the solution of the present case is clearly right if common sense is the guide. Most juries would already be distinctly unimpressed by a tale of grown men eating chocolate eggs, discarding the toys and, as if by chance, discovering an immediate use for the linings. When the point is reached at which the two linings become confused I certainly found it hard to stifle a giggle, and, had I been a juror, there would have been no need for me to be warned that both men might be trying to save their own skins by landing the other in it. Where the risk is so obvious, but the accused still hopes for an acquittal, the warning could be said to be prejudicial in that it comes too close to telling the jury what to find. Better to say nothing.”
70.
However, that two views of this are possible is indicated by the comment on
Burrows
of
Archbold
at para 4-404n:
“The reason given was that such a direction might indicate that the judge has formed a view about the way in which the evidence of each defendant should be approached. However, as argued at
Criminal Law Week
99/29/9, it is submitted that this reasoning is unconvincing. It also seems inconsistent with previous authority.”
71.
Since then there has come the recent authority of
Jones and Jenkins
. There two defendants were convicted of murder. On the prosecution case it was joint enterprise; Jones’ case was that both had indeed attacked the victim, but had caused him only minor injuries and that the fatal injuries had been caused later, perhaps in a road accident; Jenkins’ case was that he had been present but not participant in any way, but in his evidence he acknowledged that the victim’s injuries were serious (at para 9). Auld LJ described these as “modified cut-throat defences” (para 3). One of the grounds of appeal raised by Jones (but not by Jenkins) was that the judge had failed to give the “conventional” warning of the danger of accepting possibly self-serving evidence of one defendant incriminating a co-defendant.
72.
Auld LJ said as follows:
“37. Mr Harrington [counsel for the Crown] submitted that the approach in
Burrows
is to be preferred to that in
Cheema
in the circumstances of this case, because
Cheema
was not a direct cut-throat case, whereas
Burrows
was…
“38. Mr Harrington also submitted that the judge’s general directions to the jury as to how they should approach the evidence in this case sufficed in the circumstances. He referred to: the judge’s direction…as to the need for separate treatment of the cases for and against each defendant, to his general direction…as to the need to consider the credibility of each witness in the case and whether it is self seeking or given to protect or to reflect badly on one defendant rather than another; and to his direction…as to the need for the jury to take the same care in their consideration of the evidence of each of the defendants as they did in respect of any other witness in the case. Those three directions, submitted Mr Harrington, taken together, were sufficient for the purpose.
“39. Whether the defences are “mirror-image” cut-throat defences, the law, since
R v. Prater
…has been that some such warning should normally be considered and given.
Burrows
was a case in which, as Judge LJ, giving the judgment of the Court said, “the difficulty facing the trial judge was somewhat stark”. Any warning he might have given applied equally to each of the two co-defendants, whose cut-throat defences were almost a mirror-image of each other. Each had given evidence casting all possible blame on the other. It may be, as Judge LJ said, that within the confines of that particular case, the trial judge could not warn the jury to approach the evidence of each defendant with care because he had an axe to grind, without indicating to the jury that he had formed an adverse view about the way in which it should be approached by the jury. Though, why that was so, even in the particular circumstances of that case, is not readily apparent to me.
“40. A judge, even in a case of a mirror-image cut-throat defences, in the separate interest of each defendant, should be able to tailor a warning about the evidence of each against the other in a way that would not indicate that he, the judge, had formed an adverse view as to the defence of one or other or both. Even though the cross allegations are inextricably bound up in the defences of each, it is for the judge, in a neutral way, to give the jury such assistance as he can in their evaluation of the credibility of the evidence of each defendant as it is of that of all the witnesses in the case, whether for the prosecution or the defence.
“41. We see no reason to depart from the approach of this Court in
R v. Knowlden & Knowlden
…and confirmed in
Cheema
, that a judge, in exercising his discretion as to what to say to the jury should at least warn them, where one defendant has given evidence adverse to another, to examine the evidence of each with care because each has or may have an interest of his own to serve.
Cheema
was, as Mr Aubrey has observed, a cut-throat defence.
“42. There was also, as Mr Aubrey commented in argument, a particular need for some such warning in this case, where Jenkins, unlike Jones, had refused to answer questions in interview and was therefore able, if he wished, to tailor his defence to the facts in evidence.
“43. In our view, the failure to give such a warning was a serious omission and unfairly prejudicial to Jones’ defence, and also, though possibly to a lesser extent, to that of Jenkins. Accordingly, we do not consider that the general directions as to evidence of the judge to which Mr Harrington referred us were sufficient for the purpose.
“44. Our attention has been drawn to current guidance of the Judicial Studies Board in the form of a note to its specimen direction No 26, which advises a form of warning to a jury where one defendant has given evidence which may have an adverse effect on a co-defendant. The guidance in the note is that such warning should not be given where co-defendants have given evidence against each other. The authority given for that proposition is
Burrows
.
“45. It follows from what we have said that we consider that no such general principle can be extracted from the case of
Burrows
, where it is plain from Judge LJ’s judgment that the Court was heavily influenced by the facts of that case.
“46. Mr Aubrey has ventured an approach, which may be appropriate in many or most cases where a trial judge has to consider what if any warning to give where co-defendants have given evidence against each other. It seems to us to accord broadly with the general observations we have made about the principles derived from
Knowlden & Knowlden
and
Cheema
, subject always of course to what justice demands on the particular facts of each case.
“47. Mr Aubrey suggested that a judge, when dealing with the case against and defence of each co-defendant, might consider four points to put to the jury – points that would not offend any sense of justice and certainly would not cast the judge in the light of one who has formed an adverse view against either or both co-defendants. First, the jury should consider the case for and against each defendant separately. Second, the jury should decide the case on all the evidence, including the evidence of each defendant’s co-defendant. Third, when considering the evidence of the co-defendants, the jury should bear in mind that he or she may have an interest to serve or, as it is often put, an axe to grind. Fourth, the jury should assess the evidence of the co-defendants in the same way as that of the evidence of any other witness in the case. That seems to us to be a useful – and suitably focused – approach when judges are faced with this particular problem, and we commend it.”
73.
Mr Roche and Mr Clarke naturally relied strongly upon all of these remarks. Mr Milne sought to distinguish them, on the basis that the present case was covered by
Burrows
. He accepted that in this case, unlike
Burrows
, the judge had not even warned the jury to approach the evidence of each defendant against the other with extreme care: but he nevertheless submitted that the full warning suggested by this court in
Jones and Jenkins
(as to which it was only the third constituent that was missing in the present case) involved the jury in mental gymnastics with a consequent danger that the value of each defendant’s evidence in his own defence was watered down: this was particularly important to Farquhar, for only he could give evidence as to duress in his own defence. He submitted that the judge in this case faced the dilemma of the judge in
Burrows
and had given an adequate direction; and that in any event, although not stated explicitly, the fact that each defendant had an axe to grind must have been obvious to the jury.
74.
We consider that there is much force in these submissions from Mr Milne, but also that it would be undesirable for us to depart, even if it were open to us to do so, from the decision of this court in
Jones and Jenkins
, and even though Auld LJ did qualify his remarks by reference to what justice demands on the particular facts of each case. We would, however, venture our concerns in this way. First, we would regard the danger of a warning regarding the evidence of cut-throat co-defendants not so much that which was canvassed and dismissed in
Jones and Jenkins
, namely that it may indicate to the jury that the
judge
had formed an adverse view as to their defences, but rather that it serves to devalue the evidence of both co-defendants in the eyes of the
jury
. It might be said that if the jury should regard the evidence of each defendant with a somewhat jaundiced eye on his “interest to serve” or his grinding axe, that goes far, in a real cut-throat defence, to undermine the defence of each.
75.
Secondly, we wonder whether Auld LJ’s third constituent to his direction (the warning) lies easily with his fourth constituent: and thus whether the distinction which a warning to be wary of a co-defendant’s evidence is really designed to elucidate is that between evidence in a co-defendant’s own defence (which has to be treated like that of any other witness) and evidence which incriminates the co-defendant. Of course, and this was the problem faced in
Burrows
, sometimes it is impossible to distinguish between the two. In this case, for instance, how could Farquhar give evidence in his own defence concerning duress inflicted on him by Petkar and his associates without thereby directly incriminating his co-defendant? And how could Petkar give evidence in his defence, namely that of innocent receipt of moneys to invest, without saying that Farquhar had told him that the moneys were his own to dispose of and thereby directly incriminating Farquhar? In other cases, however, the incriminating evidence may not be directly connected with a defendant’s defence, and, interestingly, the example that can be given comes from
Jones and Jenkins
itself. The evidence of Jenkins that he had not participated in the assaults on the victim did not incriminate Jones at all: it was not as if Jones was saying that he was not a participant and it was all down to Jenkins. Jones’ defence was rather that whatever he (and Jenkins) had done was not serious and not the cause of death. What incriminated Jones was Jenkins’ admission, presumably in cross-examination, that the victim had received serious injuries. But that was not a necessary or direct part of his defence at all; nor is it at all clear why that admission may have been seen as serving his interests or grinding his axe. In these circumstances it might have been said that a warning in favour of Jones against his co-defendant’s evidence might have been unfair to Jenkins. Considerations such as these suggest that the moulding of such warnings to the particular facts of each case are very difficult.
76.
In sum, however, we consider there was a misdirection in failing to give any warning of any kind as to how to regard the evidence of each defendant in as much as it incriminated the other, albeit by no means as serious a misdirection as it might have been if this case had not been of a real cut-throat variety, in its own way not unlike
Burrows
.
Ground three: Mrs Wells’ statement
77.
This ground concerns only Farquhar. Mrs Wells had died between the first trial and the retrial. Her statement was therefore admitted into evidence under
section 23
of
the 1988 Act
. What she there had to say was directed in support of Farquhar’s defence of duress. She told of a number of phone calls from a man asking after her grandson: on one occasion the man asked if he was in Ireland and then said: “I am coming round to see you. I think it is time we had a chat.” She replied that she would call the police. She was frightened and changed the locks. These phone calls ended in July 1999. She also told of an incident when she saw a man, whom some 11 months later in court on 13 June 2001 she claimed to recognise as Petkar, sitting in a parked car about 70 yards away. She told her grandson about these things after his return to England.
78.
Farquhar’s complaint is that the judge introduced her evidence in his summing up with the words that it was “not accepted”, when that was true only on the part of Petkar, while the prosecution was merely neutral. It is submitted that the judge should have made this clear, especially as the burden of disproving the defence of duress lay on the prosecution. The judge said:
“No question of being unwilling to come to court but again this statement is not accepted and has not been tested in court.”
79.
In our judgment, however, the judge was concerned to mark the difference between the statements read under
section 23
(such as Mrs Wells’ and Ms Sweeney’s), where there had been an issue as to their admissibility argued under sections 25/26, and other statements which were in truth “accepted” as dealing with matters which were not in dispute and which were therefore read under
section 9 of the Criminal Justice Act 1967
. The judge had made clear in each case as the various statements were read their difference in status, and in his summing-up he briefly did the same. Thus when he got to Ms Sweeney’s statement, he said:
“You heard a statement read out from her. This one and one other [ie Mrs Wells’], which I will come to later, of course [are] different from all of the agreed statements that were read to you because this one of Karen Sweeney is not agreed so you have to consider what she says in it, bearing in mind it has not been tested in cross-examination in court…”
80.
We think that in this context the judge’s description of Mrs Wells’ statement as “not accepted” is sufficiently accurate. It was not agreed. And even if the prosecution’s attitude to Mrs Wells’ evidence in itself was neutral, in as much as that evidence was relied on to support a case of duress the prosecution was certainly not neutral. We therefore reject this ground of appeal.
Ground four: the new evidence relating to Petkar’s RBS account at Ealing.
81.
Petkar’s RBS account at Ealing showed the following. It was opened on 2 November 1999, with a deposit of £200. That was 11 months after the second transfer. The account then remained dormant until October 2000, when a further £50 deposit was made. It was now nearly two years after the transfers from IBJ. Then between October 2000 and 11 June 2002 there are 21 transfers into the account totalling some £177,000. Mr Clarke submits that these £177,000 may represent the greater part of the £222,000 which Petkar said went to Farquhar and which cannot otherwise be accounted for.
82.
The 21 transfers fall into three main divisions. First, there were seven deposits between 19 October 2000 and 6 March 2001 of sums between a maximum of £7,500 and a minimum of £745.05 and totalling some £26,000, admittedly from unknown sources. Secondly, there then followed two much larger transfers of £30,000 each, one on 8 March 2001 and the other on 3 April 2001. These came from Petkar’s Magenta Forex accounts. There were two such accounts. One was opened on 25 March 1999, the other on 7 March 2001. These accounts had large sums paid into them by named individuals or companies: Mr Clarke does not rely on any of those deposits as being from an impugned source. Between 1 September 2000 and 7 March 2001, that is to say during the period of the first seven transfers into the Ealing account, the first Magenta Forex account was dormant, the other had not yet been opened. It would seem therefore that those seven transfers totalling some £26,000 perhaps came from some other account being operated by Petkar, which has not come to light. Thirdly, there were a further twelve deposits between July 2001 and June 2002 of sums between £20,000 and £509. These are in the main traceable to Petkar’s personal account at the National Irish Bank (“NIB”), which was opened on 8 June 2001 with a transfer of IR£359,000 from the second Magenta Forex account. In one or two instances the paperwork to render the NIB account as the source is missing, rendering the attribution less than certain, but the pattern suggests that these were also sourced from NIB and thus ultimately from the Magenta Forex accounts.
83.
The court received a full file of accounting documents to explain these matters, together with a witness statement from DS Douglas Reeman, who conducted the police investigation into Petkar’s financial affairs for the purpose of the confiscation order proceedings. The court, and Mr Clarke, also had the opportunity of questioning DS Reeman.
84.
The overall effect of this material, therefore, is that the most that can be said is that transfers of some £26,000 only are from an unexplained source, and even those transfers occur some two years or so after the IBJ transfers. The Ealing account itself remained dormant for almost two years after the IBJ transfers. The court is therefore satisfied that the new material relied on by Farquhar, when seen in the context of all the new material which has come forward as a result of the confiscation order proceedings against Petkar, does not afford any ground for allowing the appeal. We do not think that this material, if it had been available to the jury, would have affected their view of the case in the slightest.
Safety of the convictions
85.
We return therefore to the question of the safety of the appellants’ convictions, in the light of our findings that there have been misdirections under the first and second grounds of appeal discussed above.
86.
Mr Roche and Mr Clarke pressed on us their submission that in the light of those misdirections the court ought to find the convictions to be unsafe. They were able to point to a number of authorities to illustrate that submission, for instance
Gill
at para 32 and
Daly
at para 13, and
Jones and Jenkins
itself.
87.
In our judgment, however, the misdirections we have found do not affect the safety of these convictions (nor, we might say, although no separate argument has been raised by reference to article 6 of the European Convention of Human Rights, do they render the trial unfair): see
R v. Francom
[2001] 1 Cr App Rep 17 at para 50 and
Chenia
at paras 58/59. The evidence against the appellants was overwhelming and we are satisfied that on the whole of the facts and with correct directions of law the only reasonable and proper verdicts would have been ones of guilty.
88.
Thus in the case of Petkar, he accepted that he was the recipient of £840,000 (twice £420,000, before the first transfer was returned). He must have known that these monies came from IBJ and could not have come from Farquhar’s own funds. Farquhar was only 28 and a relatively junior employee, who had not been working long at IBJ. The letter and statement from Barclays Bank told him that the money came from IBJ. On the basis that he was honest, he must have taken an interest in where so large a sum of money had come from, especially as he was concerned with the return of the first transfer. His explanation for the receipt of the money was that it was with him to invest for Farquhar for at least a year: nevertheless he immediately makes arrangements, in the case of both transfers, for spending large sums on himself or on repayment of his own debts, or for passing large sums through the hands of casinos. That in itself was wholly dishonest. Unaccountably, Farquhar requests the return of large sums, amounting in all to £222,000: those sums are returned in cash in such a way as to leave no trace. No receipts are obtained from Farquhar. The whole transaction, for not far short of half a million pounds, is done in the most unbusinesslike of ways, and without any documentation – other than may be found in the contract, whose terms are never carried out, and about which Petkar admits lying in his interview. In addition to that lie, there was the lie about having returned all the money to Farquhar, repeated to the Halifax, IBJ and the police.
89.
Although this whole appeal has been premised on the basis that those lies amounted to failures to mention facts, they were in truth not so much failures to mention facts as lies about matters which were discussed. As such they were covered by a
Lucas
direction which has not been the subject matter of this appeal and which told the jury in terms that a lie was “only relevant if you are sure it was told because he realised he was guilty” and that “People may tell lies for reasons which have nothing to do with the offence”. The jury were reminded about the explanations given by Petkar for those lies, even if that was done as part of the facts rather than directions of law. In these circumstances we view the judge’s misdirection in connection with
section 34
as being less serious than it might otherwise have been.
90.
As for Farquhar, he admitted transferring the money and his only defence was duress. There is no complaint on this appeal about the directions regarding that defence. The evidence against him was equally overwhelming. The transcripts are wholly inconsistent with his acting under duress. Although he ascribed his departure to Ireland as an attempt to avoid Petkar, he did not so explain his use of a false name to open a bank account and buy a house or the change of his name to Ferguson. Moreover, Ms Sweeney’s evidence was also very damaging, although we bear in mind that she had refused to come to England to give evidence and was not available for cross-examination. He also had to admit many lies: his pretence that he knew nothing about the transfers, for instance, or that he barely knew Petkar. Such lies, apart from their significance in themselves as redolent of guilt, were inexplicable if his true defence was duress. One then comes to his failure to mention the subject of duress at his interview: that is perhaps the one true example of a failure to mention a fact relied on by way of defence, but it is in its context a damning one. He had been away in Ireland for nearly two and a half years when he chose to return. He did so voluntarily and in his own time, as he says, even if his return was provoked by learning of the television programme which mentioned him. It is he, through his solicitor, who contacts the police. He is an intelligent man. It is inconceivable, in the absence of evidence of some telling explanation, that after all that time, and with the assistance of legal advice, he did not mention duress at the outset of his interview and well before the raising of the recorded and transcribed telephone conversations brought his interview to an end on his solicitor’s advice. What then was his explanation for not then mentioning his defence of duress, even in outline? In effect there is no explanation at all: at most it is a pretence that he did not even know why the police had an arrest warrant for him, as he had heard, and that “I said as little as possible in the interview. I was pretty noncommittal”. This barely counts as an explanation, and goes very far to undermine the defect in the judge’s direction.
91.
As for a
Jones and Jenkins
warning, even on the basis that one was needed, we think that on the facts of this case the absence of one was venial. As Professor Birch said in her note on
Burrows
: “there would have been no need for me to be warned that both men might be trying to save their own skins by landing the other in it”. It is inconceivable that the jury did not understand the situation in the same way. In any event, as they had been told, the real decisions they had to take, subject to the burden of proof, rested on the credibility of each defendant’s own evidence: in the case of Petkar whether he might have thought that Farquhar was an extremely wealthy young man who had really agreed to invest his own money with him for a year and then almost immediately asked for a little over half of it back; and in the case of Farquhar whether he might have been forced to steal from his employer against his will.
92.
For these reasons we dismissed both appeals.
Petkar’s appeal against sentence
93.
We therefore reached the renewal of Petkar’s application for leave to appeal against sentence. This was entirely based on the delay to Petkar’s trial which had arisen out of Farquhar’s absconding to Ireland. Farquhar had been hiding there for nearly two and half years, from December 1998 to April 2001. There was then a further delay, while a trial which was finally going ahead against Petkar alone was put back to accommodate Farquhar’s return from Ireland. In the event the trial was itself put back a further nine months for reasons connected with an alleged defence of duress on the part of Farquhar which failed. Mr Roche therefore submitted that there had been a delay of nearly three and a half years through no fault of Petkar’s own.
94.
In
R v. Clark
[1998] 2 CAR 137 at 140E/F long delay “say, of over two years” between being confronted with dishonesty and the start of trial was cited as a matter of mitigation personal to an offender. We thought that there was sufficient in this point to merit a discount of 6 months in the case of Petkar on the five year sentence handed down to Petkar and Farquhar alike by the judge. We therefore gave leave to appeal and allowed the appeal to that extent. | {"ConvCourtName": ["Crown Court at Middlesex Guildhall"], "ConvictPleaDate": ["17 June 2002"], "ConvictOffence": ["concealing or transferring the proceeds of criminal conduct", "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 Middlesex Guildhall"], "Sentence": ["both were sentenced to 5 years imprisonment on each"], "SentServe": ["concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["Rafiq PETKAR & Martin FARQUHAR\n \n Appellants"], "OffAgeOffence": ["37", "28"], "OffJobOffence": ["Petkar and Farquhar were both employees of the Industrial Bank of Japan (“IBJ”) in the City of London"], "OffHomeOffence": ["his own 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": ["Witnesses from the IBJ gave evidence about the two defendants and the bank’s operations."], "DefEvidTypeTrial": ["full cut-throat defence", "Petkar accepted that what he had told the police originally about returning all the money to Farquhar was a lie. Farquhar denied receiving anything, and there was no direct evidence, other than Petkar’s, that he did.", "handwriting experts called by the defendants"], "PreSentReport": ["data not available"], "AggFactSent": ["in the case of Petkar, he accepted that he was the recipient of £840,000 (twice £420,000, before the first transfer was returned).", "In addition to that lie, there was the lie about having returned all the money to Farquhar, repeated to the Halifax, IBJ and the police."], "MitFactSent": ["delay “say, of over two years” between being confronted with dishonesty and the start of trial was cited as a matter of mitigation personal to an offender. We thought that there was sufficient in this point to merit a discount of 6 months"], "VicImpactStatement": ["data not available"], "Appellant": ["Rafiq PETKAR & Martin FARQUHAR\n \n Appellants"], "CoDefAccNum": ["the co-defendant"], "AppealAgainst": ["against conviction", "against sentence."], "AppealGround": ["judge failed to remind the jury of the explanations given by the appellant", "the judge failed to warn the jury that they should not convict wholly", "the judge failed to direct the jury that they could only draw an adverse inference if they concluded that the only sensible explanation for the defendant’s failure to mention the salient fact was that he had no answer at the time or none that would stand up to scrutiny", "the way in which the judge introduced in his summing up the evidence", "Farquhar relies on some new evidence of Petkar’s accounts which only emerged after conviction in the course of confiscation order proceedings against him.", "the judge failed to direct the jury that they could only draw an adverse inference if satisfied that the prosecution had established a prima facie case;", "the judge failed clearly to identify the relevant inferences", "The second ground shared by both appellants (“ground 2”) is that the judge failed to give the jury an appropriately structured, or indeed any, warning about the danger of relying on the evidence of each defendant as against the other"], "SentGuideWhich": ["Ground one: the section 34 direction", "directions pursuant to section 34 of the Criminal Justice and Public Order Act 1994."], "AppealOutcome": ["dismissed both appeals.", "merit a discount of 6 months in the case of Petkar"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The evidence against the appellants was overwhelming and we are satisfied that on the whole of the facts and with correct directions of law the only reasonable and proper verdicts would have been ones of guilty."]} | {"ConvCourtName": ["Crown Court At Middlesex Guildhall"], "ConvictPleaDate": ["2002-06-17"], "ConvictOffence": ["theft", "concealing or transferring the proceeds of criminal conduct"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court At Middlesex Guildhall"], "Sentence": ["both were sentenced to 5 years imprisonment on each"], "SentServe": ["Concurrent"], "WhatAncillary": ["data not available"], "OffSex": ["All Male"], "OffAgeOffence": ["28", "37"], "OffJobOffence": ["Employed"], "OffHomeOffence": ["Fixed Address"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["No"], "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-witness testimony"], "DefEvidTypeTrial": ["Expert Evidence", "Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["Attempt to conceal", "Financial gain /value"], "MitFactSent": ["Trial delay by co-defendant"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["1"], "AppealAgainst": ["against conviction", "against sentence."], "AppealGround": ["the way in which the judge introduced in his summing up the evidence", "Fresh evidence", "The second ground shared by both appellants (“ground 2”) is that the judge failed to give the jury an appropriately structured, or indeed any, warning about the danger of relying on the evidence of each defendant as against the other", "judge failed to remind the jury of the explanations given by the appellant", "the judge failed to direct the jury that they could only draw an adverse inference if they concluded that the only sensible explanation for the defendant’s failure to mention the salient fact was that he had no answer at the time or none that would stand up to scrutiny", "the judge failed to direct the jury that they could only draw an adverse inference if satisfied that the prosecution had established a prima facie case;", "the judge failed to warn the jury that they should not convict wholly", "the judge failed clearly to identify the relevant inferences"], "SentGuideWhich": ["Ground one: the section 34 direction", "directions pursuant to section 34 of the Criminal Justice and Public Order Act 1994."], "AppealOutcome": ["merit a discount of 6 months in the case of Petkar", "Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["The evidence against the appellants was overwhelming and we are satisfied that on the whole of the facts and with correct directions of law the only reasonable and proper verdicts would have been ones of guilty."]} | 98 |
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2022] EWCA Crim 410
No. 202101643 B5
202103906 B5
Royal Courts of Justice
Tuesday, 22 March 2022
Before:
LADY JUSTICE WHIPPLE
MR JUSTICE JEREMY BAKER
HIS HONOUR JUDGE LODDER QC
(
Recorder of Richmond upon Thames
)
REGINA
v
AJAY STEPHENS
__________
Computer-aided Transcript prepared from the Stenographic Notes of
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_________
MR T. WAINWRIGHT and MISS S BEGUM appeared on behalf of the Applicant.
The Crown was not represented, did not attend.
_________
JUDGMENT
LADY JUSTICE WHIPPLE:
1
On 3 September 2020, the applicant pleaded guilty to conspiracy to supply class A drugs (counts 1 and 2 on the first indictment). On 7 May 2021, before His Honour Judge Kelleher at Inner London Crown Court, the applicant was convicted unanimously on two counts, pursuant to section 2 (1) and section 3 (6), under the Modern Slavery Act 2015 (counts 3 and 4 on the first indictment). On 14 October 2021 the applicant pleaded guilty on a change of plea to two offences on the second indictment, namely possession with intent to supply class B drugs and dangerous driving. For all of these counts, on 11 November 2021, he was sentenced by His Honour Judge Kelleher to a total period of eight years and three months' imprisonment. That sentence was structured as a lead sentence on count 1 with concurrent sentences on the remaining counts, plus a period of 14 months' disqualification from driving until an extended driving test was passed.
2
The counts on the first indictment involved a conspiracy to supply heroin and crack cocaine to drug users living in Hastings, East Sussex. The drugs had been sourced from London. The prosecution case was that the applicant was operating a county lines operation using vulnerable people to supply drugs in that area. He was in a leading role and directed others beneath him in the hierarchy, including young children. It was submitted that children were specifically chosen and exploited because of their vulnerabilities. The prosecution case was that the applicant had trafficked three children, known by their initials, each of whom was the subject of a count on the first indictment (counts 3, 4 and 5 on the first indictment). In the event, the jury convicted the applicant on counts 3 and 4 and acquitted on count 5.
3
The defence case was that the applicant had nothing to do with the recruitment of children and did nothing to arrange or facilitate their travel with a view to being exploited. He said he did not know that they were under 18 and that there was insufficient evidence to prove otherwise. He himself was only 19 at the time. The defence relied on the fact that a significant number of people engaged in selling drugs in Hastings were over 18 and pointed to the previous convictions of the three boys. The jury were invited to conclude that they could not be sure that the boys were chosen on the basis that they were children, nor that an adult would be likely to refuse to be used for that purpose.
4
The issue for the jury on the judge's directions of law was whether the jury were sure that by the time the applicant had arranged or facilitated each named boy's travel to Hastings, which travel arrangements he admitted, the applicant had chosen that boy to supply drugs for reasons which included the fact that that boy was a child and that he thought that an adult would be likely to refuse to supply drugs on his behalf.
5
The characterisation of the issue in this way reflected the language of section 2 (1) and specifically section 3 (6) of the Modern Slavery Act 2015. Section 2 (1) makes it an offence to arrange or facilitate -
"(1) ..... the travel of another person (V) with a view to (V) being exploited."
6
Section 3 defines exploitation by listing a number of activities that would count as exploitation, with section 3 (6) identifying exploitation in terms of choosing a vulnerable person to conduct those activities. Section 3(6) provides as follows:
"(6) Another person uses or attempts to use the person for a purpose within paragraph (a), (b) or (c) of subsection (5), having chosen him or her for that purpose on the grounds that -
(a) he or she is a child, is mentally or physically ill or disabled, or has a family relationship with a particular person, and
(b) an adult, or a person without the illness, disability, or family relationship, would be likely to refuse to be used for that purpose."
7
The judge's directions to the jury were straightforward. In relation to the test in section 3 (6) the judge directed the jury as follows:
"The second matter to be proved you must be sure that at the time he arranged or facilitated that travel of the boy in question he intended that the boy would be exploited. The boy would be exploited if he was to be used to provide the service of supplying drugs in Hastings, having been chosen because he was a child and an adult would be likely to refuse to be used for that purpose. Now there may be a number of reasons why a child is chosen by those who seek to use him to supply drugs for them. However, it is necessary for both of those factors - that is that he was a child and that an adult would be likely to refuse to be used for that purpose - to have formed part of the reasons for the choice."
8
So far as counts 3 to 5 are concerned, the judge provided the jury with a route to verdict and that posed a single question which mirrored the part of the summing-up to which I have just referred. The particular question in the route to verdict was this:
"By the time [the applicant] arranged or facilitated the named boy's travel to Hastings, had he chosen that boy to supply drugs, for reasons which included the fact that he was a child AND that he thought that an adult would be likely to refuse to supply drugs for him? If sure: Verdict: guilty. If not sure: not guilty."
9
During the course of deliberations and shortly after the judge had given a majority direction, the judge received a note from the jury asking this:
"Can you clarify the statement 'An adult would be likely to refuse to supply drugs for him.'? 'An adult' sounds like the average UK adult, not those with previous convictions or a predilection towards criminality'."
10
The judge discussed this question with counsel and resolved to answer the question in the following way: that "adult" just meant adult and the jury should not be considering the position of an adult with particular characteristics of the child in question.
11
Before the jury had been called back to court, the judge was informed that the jury had verdicts. When the jury returned into court the judge gave them the following direction in answer to their question:
"The words 'an adult' mean simply that: a person over 18. The words do not require you to consider whether the defendant gave consideration to whether an adult with particular characteristics would be likely to refuse to supply drugs for him, only that an adult would be likely to refuse."
12
The judge read the direction to the jury again. He then asked the jury if they needed more time as a result of what he had just told them. The jury indicated that they did not require further time, and they returned unanimous verdicts of guilty on counts 3 and 4.
13
The issue raised by the applicant on appeal is whether the judge's answer to the jury question was correct in law. Mr Wainwright and Miss Begum appear before the court renewing their application for leave which was refused by the single judge on the papers. They appear pro bono. We are very grateful to them for the assistance that they have provided to us.
14
They argue that the defence case always challenged the assertion that the boys were chosen for their youth. The jury were referred to previous convictions of the three boys to indicate that they had character traits other than youth which would be of use in the role they fulfilled. Those traits were said to be a willingness to be involved in criminal activity, a willingness to use violence and a reluctance to co-operate with the police. They say that section 3 (6) requires that the jury should consider the particular child in question. So, they submit, the test under section 3 (6) (a) focuses on that particular child, and the test in section 3 (6) (b) hypothetically takes that child, removes the fact of their youth and leaves their other characteristics for consideration.
15
In other words, it is necessary for the jury to have regard to the particular characteristics of a child in question when considering whether, as an adult, they would have been likely to have refused to be used for an exploitative purpose. In this way, it is suggested that the test under section 3 (6) (b) is not an objective test of what a reasonable adult would have done, but rather a test of what these children, if they were adults, would have done. In this respect reliance is placed on
R v Karamera
[2019] Cr App R 14.
16
In a written respondent's notice the prosecution resist this application. The prosecution says that section 3 (6) does not say that particular characteristics of the child are to be taken into account and that those words should not be read in.
17
In our judgment, having considered the matter with some care, we come to the conclusion that the applicant's argument is simply not sustainable. This is an issue of statutory construction to which ordinary principles apply. We look first at the language and then at the purpose of the provision. As a matter of ordinary language, the words "the particular characteristics of the child in question" do not appear in section 3 (6) (b), nor do any similar words. Yet the words in the statute, as they stand, are comprehensible and clear. There is no need to read any words in to make sense of the provision.
18
As a matter of purposive construction, it is obvious why those words do not appear. As was established in
R v Karamera
, the purpose of context of section 3 (6) and indeed its predecessor (section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004) was to protect the vulnerable from being trafficked with a view to exploitation. Section 3 (6) establishes that there must be shown to be two grounds or reasons for choosing the child in question: first, that they were a child, and, secondly, that an adult would be likely to refuse to be used for that purpose. To amount to exploitation, these need only be factors in the choice, they do not need to be the only factors: see
R v Karamera
again.
19
In this case, it was for the prosecution to prove that both factors formed part of the reasons for the applicant to have chosen the three boys in question. In relation to the boys who are the subject of counts 3 and 4, the jury was satisfied about it. That there may have been other reasons for choosing them – for example their criminal past - was nothing to the point if youth was one of the reasons for them being chosen. In relation to the boy who was the subject of count 5, the jury were not satisfied of that.
20
The jury rejected the defence case that youth had nothing to do with the choice of the boys who were the subjects of counts 3 and 4. That was a conclusion to which they were entitled to come. It was, in effect, to accept the prosecution case.
21
We see no basis for construing section 3 (6) (b) in the manner suggested. There is no reason to adopt a test which asks whether an adult assuming the same characteristics of that particular child would be used. We consider such a reading of the section would be contrary to the words of the provision, its obvious purpose and case law which has interpreted it.
22
Further, we consider the argument to start from an erroneous point, in suggesting that the child referred to in the first limb - (a) - means the particular child, i.e. the victim of the trafficking who is the subject of the count on the indictment, taking in all his or her characteristics; paragraph (a) is simply asking whether the choice was made on grounds that the person in question was a child, regardless of what other reasons there might have been. The purpose of (b) is to ask whether an adult, i.e. a person who is not a child, would be likely to refuse to be so used. Section 3(6) focuses on the particular vulnerability in question, in this case youth, and asks whether the person has been exploited because of their youth.
23
It follows that we also reject the applicant's arguments of construction relating to the other vulnerabilities detailed in section 3 (6), those other vulnerabilities being mentally or physically ill, disabled or with a family relationship. We conclude that the reading of section 3 (6) (a) and (b) in relation to those other vulnerabilities is similar to the reading we consider correct in relation to youth.
24
In these circumstances we do not consider there to be arguable merit in the applicant's submissions. Permission to appeal against conviction is, therefore, refused. Permission to appeal against sentence, which was only sought in the event that permission to appeal against conviction was granted, is also refused.
__________ | {"ConvCourtName": ["Inner London Crown Court"], "ConvictPleaDate": ["3 September 2020"], "ConvictOffence": ["dangerous driving", "possession with intent to supply class B", "conspiracy to supply class A drugs"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Inner London Crown Court"], "Sentence": ["eight years and three months' imprisonment"], "SentServe": ["concurrent"], "WhatAncillary": ["disqualification from driving"], "OffSex": ["he"], "OffAgeOffence": ["19"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["data not available"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["boys were chosen on the basis"], "VictimType": ["three children"], "VicNum": ["trafficked three children"], "VicSex": ["boys"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["three children"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["drugs had been sourced from London"], "DefEvidTypeTrial": ["applicant had nothing to do with the recruitment of children and did nothing to arrange or facilitate their travel"], "PreSentReport": ["data not available"], "AggFactSent": ["using vulnerable people", "He was in a leading role"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["applicant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against conviction", "Permission to appeal against sentence"], "AppealGround": ["whether the judge's answer to the jury question was correct in law"], "SentGuideWhich": ["section 2 (1) and section 3 (6), under the Modern Slavery Act 2015"], "AppealOutcome": ["refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we do not consider there to be arguable merit in the applicant's submissions", "we come to the conclusion that the applicant's argument is simply not sustainable"]} | {"ConvCourtName": ["Inner London Crown Court"], "ConvictPleaDate": ["2020-09-03"], "ConvictOffence": ["possession with intent to supply class B", "dangerous driving", "conspiracy to supply class A drugs"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Inner London Crown Court"], "Sentence": ["eight years and three months' imprisonment"], "SentServe": ["Concurrent"], "WhatAncillary": ["disqualification from driving"], "OffSex": ["All Male"], "OffAgeOffence": ["19"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Don't Know"], "OffMentalOffence": ["Don't know"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Stranger"], "VictimType": ["Individuals"], "VicNum": ["3"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Child"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Police evidence"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["using vulnerable people", "He was in a leading role"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["Permission to appeal against sentence", "against conviction"], "AppealGround": ["whether the judge's answer to the jury question was correct in law"], "SentGuideWhich": ["section 2 (1) and section 3 (6), under the Modern Slavery Act 2015"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["we do not consider there to be arguable merit in the applicant's submissions", "we come to the conclusion that the applicant's argument is simply not sustainable"]} | 406 |
Neutral Citation Number: [2019] EWCA (Crim) 520
Case No: 2018/02453/A1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM NEWCASTLE CROWN COURT
RECORDER WOOD QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
28/03/2019
Before :
LORD JUSTICE GROSS
MR JUSTICE SWEENEY
and
SIR KENNETH PARKER
- - - - - - - - - - - - - - - - - - - - -
Between :
FALTEC EUROPE LIMITED
Appellant
- and -
HEALTH AND SAFETY EXECUTIVE
Respondent
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Stephen Hockman QC
and
David Hercock
(instructed by
Rachel Lyne
at
Browne Jacobson
LLP
) for the
Appellant
Ben Mills
(instructed by
Health and Safety Executive
) for the
Respondent
Hearing date : 15 March 2019
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
LORD JUSTICE GROSS :
INTRODUCTION
1.
This is an appeal against the amount of the fine imposed in respect of three Health and Safety offences, two concerning exposure to legionella bacteria and outbreaks of Legionnaires’ disease, the third relating to an explosion in a flocking machine.
2.
On 3 April 2017, having pleaded guilty before Magistrates, the Appellant company (“Faltec”) was committed for sentence pursuant to s.3,
Powers of Criminal Courts (Sentencing) Act 2000
, in respect of the following matters:
i)
Count 1, failure to ensure the health and safety of non-employees, contrary to ss. 3 and 33(1)(a) of the
Health and Safety at Work Act 1974
(“
the Act
”). This Count concerned an outbreak of legionella.
ii)
Count 2, failure to ensure the health and safety at work of employees, contrary to
ss. 2
and 33(1)(a) of
the Act
. This Count too concerned an outbreak of legionella.
iii)
Count 3, failure to ensure the health and safety at work of employees, contrary to
ss. 2
and 33(1)(a) of
the Act
. This Count related to the explosion in a flocking machine.
3.
On 17 May 2018, in the Crown Court at Newcastle upon Tyne, before Mr Recorder Wood QC, Faltec was sentenced as follows:
i)
Count 3, £800,000 fine.
ii)
Count 1, £800,000 fine, consecutive to Count 3 but concurrent with Count 2. iii)
Count 2, no separate penalty.
Accordingly, the total fine imposed was £1.6 million. Faltec was additionally ordered to pay prosecution costs in the amount of £75,159.73.
4.
It may at once be noted that the Judge heard some 4 days of evidence and submissions, and read some 6,000 pages of documents.
5.
Faltec now appeals against sentence – the amount of the fine – by leave of the Single Judge. Its grounds of appeal essentially comprise a root and branch attack on the Judge’s conclusions.
THE FACTS
6.
Faltec is a wholly owned subsidiary of a Japanese holding company (“the Holding Company”).
7.
Originally incorporated in 1989, Faltec has traded throughout as a manufacturer of car parts for Nissan’s European plants. It has also supplied other car manufacturers, including Renault, BMW and Honda. In recent years, it has had a turnover of between £33 and 39 million,
per annum.
Although it reported a profit in 2015, it has been running at a loss in 2016 and 2017, subsisting largely on loans and share capital supplied by the Holding Company – which itself has a worldwide turnover of between £550 million and £600 million
per annum
and an accounting annual profit of between £10 and £20 million
per annum
in each of the last three years.
8.
Faltec is located in the Boldon Business Park, South Tyneside, close to Newcastle upon Tyne. Its operations are spread over five separate factory units. It has about 550 employees. As the Judge observed (sentencing observations, at [2]), in the vicinity of the Faltec site, there is a housing estate, a shopping centre, a cinema, a hotel, public houses and a car dealership; Faltec operates within a well populated urban area.
9.
The three counts concerned two distinct courses of criminal conduct. Counts 1 and 2 concerned exposure to legionella bacteria and outbreaks of Legionnaires’ disease in and amongst the employees and local population around Faltec’s place of business, between
1 October 2014 and 6 June 2015. Count 3 concerned an explosion in a flocking machine (machine B14), on 16 October 2015, which caused injury to an employee.
10.
Legionella (with which Counts 1 and 2 are concerned) is a bacterium which can develop within water systems and spread through the air in vapour to infect human beings – who can test positive for the legionella virus. Only some of those infected by the virus will go on to develop Legionnaires’ disease – itself a serious and potentially fatal form of pneumonia. It is normally contracted by inhaling small drops of water (aerosols), suspended in the air containing the bacteria. The initial symptoms following exposure are flu like and include headaches, muscle pain, fever, chills, tiredness and confusion. Once the bacteria begin to infect the lungs, symptoms of a form of pneumonia develop – such as persistent cough, shortness of breath and chest pains. If untreated it will lead to life threatening problems, including organ failure or septic shock, leading to coma and, possibly, death.
11.
As to statistics, on the basis of expert evidence called by Faltec, it was not in dispute that in a human population with a normal spectrum of characteristics, including age and disease, the recorded proportion of those exposed to outbreaks of legionella pneumophilia from cooling towers who would be expected to sustain fatal injuries would be between 0 and 0.04% (i.e., up to 4 in 10,000).
12.
The water system at the Faltec site is large, comprising four cooling towers and 22,000 metres (22 kilometres) of pipework. The legionella bacteria contaminated one of the cooling towers. It was common ground that there were “dead legs” (lengths of pipe which have been capped off, and therefore lead to a dead end) which allowed the bacteria to develop. In its basis of plea, Faltec admitted a failure of oversight of its specialist water contractor, Guardian Water Treatment (“GWT”), which had failed to maintain an effective biocide dosing treatment regime (“dosing”). An effective dosing regime would have neutralised the bacteria in question.
13.
Over the period spanned by Counts 1 and 2, October 2014 – June 2015, five people were infected and diagnosed with Legionnaires’ disease. One of those spent time in intensive care under an induced coma, lasting for ten days. Four of the victims had worked for Faltec, two on an agency basis; the fifth lived near to the site. One of the five had been infected in or around October 2014; the others in April or May 2015. It would therefore seem that there were two separate outbreaks, spanning the period October 2014 – June 2015. In addition to those infected, it was said that many people in the locality had been put in fear in consequence of the outbreak.
14.
The function of a flocker machine (of the type with which Count 3 is concerned) is to attach flock to a chrome strip used as a component in the manufacture of motor cars. It is normally used in car door parts for sealing the areas around the door window and is also used in other areas of a vehicle and for a variety of reasons including aesthetics and improving insulation. Flock is a polymide, with a flashpoint of 400◦ Celsius and an ignition temperature of approximately 450◦ Celsius. Particles of flock are applied to metal parts by the application of a high voltage electric field. The flock is given a negative charge and flies vertically onto the metal part attaching to pre-applied adhesive. Flock itself constitutes a dangerous substance for the purposes of the
Dangerous Substance and Explosive Atmospheres Regulations 2002
(“the DSEAR regulations”).
15.
At the Faltec site there were four combined co-extrusion flocking lines. The accident happened on machine B14. The risk of explosion is ever present when the flocking machine is in operation as the flock cloud is not only electrically charged but is also highly flammable – and liable to explosion should an ignition source be applied, such as a spark from an electrically charged metallic grill. After having the flock applied to it, the car part enters an air blast cabinet designed to remove excess flock. During this operation, the blast cabinet may be accessed by sliding up a polycarbonate guard.
16.
On machine B14, the access points were not fixed in position or interlocked, with the result that the machine could be opened and accessed whilst in operation. At the time of the incident (October 2015), there was a plastic mesh grid, approximately 3 millimetres thick, installed just before the electrostatic grid in an attempt to prevent parts coming into contact with the electrostatic grid.
17.
As to the incident itself on 16 October 2015, Mr Haswell had worked at Faltec for eight months as an apprentice. On the 15 October, he had started work on the night shift at 23.00, on line B13/14. The accident happened almost at the end of the night shift, at around 05.30 on 16 October. As Mr Haswell walked past the air blast unit, he saw that a part had fallen off the rollers. He decided to remedy it, lifted up the polycarbonate guard and placed it on top of the air blast unit, so that he could use both hands to remove the part. This action did not stop the machine from operating, nor did it cut the power to the electrically charged elements. At that moment he was exposed to a high level of risk of harm because the atmosphere present within the immediately adjacent flocking unit was flammable and parts were not prevented from coming into contact with the live electrostatic grid. Due to the length of the part he was seeking to retrieve he had to bend it towards him to get it out and, as he did so, it may have touched the live electrostatic grid.
18.
At this point, Mr Haswell was leaning into the grid and the explosion came from the left out of the parts exit of the flocking unit. He described it as a big flash and he turned his face away to the right. He was only wearing a short-sleeved polo shirt, safety glasses, hearing protection, steel toe capped boots and trousers. He shouted out in pain and one side of his face and arms were red and covered in flock; all his hair and beard were singed. He was taken by ambulance to hospital in Newcastle and put into an induced coma until the afternoon of 17 October; he was discharged on 18 October. He suffered first degree burns to his face, right arm and left elbow. He also had back pain
as the blast sent him into the workbench. He was initially off work for four months and, thereafter, for a further two months suffering from anxiety and depression (extending to an attempt to cut his wrists and seeking counselling). Various other personal consequences followed, though subsequently matters appear to have improved.
19.
By its basis of plea, Faltec admitted that flocker machine B14 did not meet the required safety standards, that risk assessments had failed to identify the control measures necessary and that Mr Haswell had not been sufficiently trained.
APPLYING THE GUIDELINE
20.
It is common ground that in this area there is a relevant Guideline, namely the
Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline
, effective from 1 February 2016 (“the Guideline”).
21.
As with all Sentencing Council Guidelines, the duty of the Court in respect of the Guideline is contained in s.125 of the
Coroners and Justice Act 2009
:
“(1) Every court –
(a) 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 Guideline assists in an exercise of structured judgment; it is not a straitjacket: Lord Burnett of Maldon CJ, in
Whirlpool UK Appliances Ltd v R
[2017] EWCA Crim 2186
;
[2018] 1 Cr App R (S) 44
, at [12].
22.
Further, there was no dispute that the correct general approach to the Guideline is, as set out by Gross LJ, in
R v Tata Steel Ltd
[2017] EWCA Crim 704
;
[2017] 2 Cr App R (S) 29
, at [25]:
“
Overview
: Standing back from the detail, the following broad picture emerges of the Guideline as a whole, insofar as relevant for present purposes.
(i)
first, the Guideline begins by considering the level of culpability. It then looks at the seriousness of the harm risked, followed by the likelihood of that harm materialising. In combination, the seriousness of the harm risked together with the likelihood of it materialising, yield various harm categories.
(ii)
secondly, the level of culpability, considered together with the relevant harm category are then applied to tables, depending on and reflecting the size of the organisation’s turnover. This exercise produces a starting point for the fine. It can then be adjusted upwards or downwards for aggravating and mitigating factors.
(iii)
thirdly and likewise, the starting point may warrant adjustment to reflect the true size of the organisation. In particular, an upwards adjustment may be called for in the case of a very large organisation so as to produce a proportionate fine, bringing home the message to management and shareholders of the need to comply with health and safety legislation. In this manner, the Guideline reflects the objective, clearly set out by Mitting J, giving the judgment of the Court in
Thames Water (supra)
, at [38]:
‘The object of the sentence is to bring home the appropriate message to the directors and shareholders of the company…Sentences imposed hitherto in a large number of cases have not been adequate to achieve that object.’
(iv)
fourthly and in accordance with s.164 of the
Criminal Justice Act 2003
,
the financial circumstances of the offender must be taken into account. A downwards adjustment may be called for where an organisation has a small profit margin relative to its turnover; by implication, a downwards adjustment may equally be appropriate where the business is loss-making. So too, any wider impact of the fine on those who are not shareholders or directors, should be considered and may warrant adjustment.
(v)
fifthly, as with any other sentencing exercise, there is a discount for an early guilty plea and totality must be taken into account.”
THE SENTENCING OBSERVATIONS
23.
The Judge’s sentencing observations were extensive and thorough.
24.
Almost at the outset, the Judge recorded Faltec’s pleas of guilty to all three Counts; it was common ground that the pleas had been entered at the very earliest opportunity and that Faltec was entitled to a full 1/3 credit in the fines which the Judge would impose.
25.
The Judge drew attention to Faltec’s two previous Health and Safety convictions, which had attracted fines arising from breaches of
s.2(1)
of
the Act
; the first, related to an incident in 2006, in which an employee died; the second, related to an incident in 2012 in which an employee was gravely injured. In the Judge’s view (at [13]), both convictions “…represented significant prior failures” by Faltec in its Health and Safety regime. Admittedly, a new managing director had been appointed in 2012 and had given a fresh commitment to Health and Safety; however (
ibid
):
“Whilst I do not doubt this assertion, the speed, determination and thoroughness with which that ‘fresh commitment’ was implemented has to be judged in the context of the events which are disclosed by the two grave Health and Safety breaches which overcame the company in 2015 and [with] which I now have to deal.”
The Judge was critical of what he described (
ibid
) as “…weak line management, with insufficient priority being given to even the most fundamental issues of Health and Safety”, culminating in the offences forming the Counts before us.
26.
Turning to the legionella outbreaks, the parties were agreed (at [14]) that the Judge should pass a single sentence for both offences by the imposition of a single fine.
27.
The Judge referred to the statistical risk of fatal injuries (the 0 – 0.04% range, set out above) and observed (at [20]) that the Health and Safety Executive (“HSE”) inspector gave the fatality figure in another way; he had stated that:
“Legionnaires’ disease is a type of a typical pneumonia that is fatal in around 10-15% of cases.”
The Judge did not regard these statements as in any way inconsistent with each other. As the Judge put it (at [21]):
“Dr Lee is simply saying that if a population of ten thousand people are exposed to contamination by a cooling tower leaking legionella bacteria, that on a statistical analysis between none and 4 of them could die. Mr Smith is simply saying if 10 from that exposure contract Legionnaires’ disease at least one (10 – 15%) of them is likely to die. In the instant case something of the order of an urban population of 5000 people may well have been exposed to the risk, by this leakage, we do not know how many were infected by the legionella virus, but we do know that 5 succumbed to Legionnaires’ disease, and happily none died.”
28.
Because the dangers of Legionnaires’ disease are so well known, since 1991 the HSE or its predecessors had published detailed regulations for its control. The fourth edition of the Approved Code of Practice (“ACOP”) was published in 2013 and was applicable at the material time. The “fundamental requirement” involved the control of legionella bacteria in water systems and pointed out the specific danger from dead legs. The Judge there observed (at [23]) that Faltec should have been “well familiar” with ACOP and should have had reasonable systems in place to ensure compliance. The Judge regarded a “written scheme” as essential. Having described Faltec’s water system (as set out above), he noted (at [25]):
“In its basis of plea the defendant admits a deficit in oversight of its specialist water contractor….[i.e., GWT]…and that there were deadlegs in the system which should not have been there.”
29.
The Judge highlighted the warnings given to Faltec by HSE inspectors in 2012 and 2013, the primary areas of concern comprising (at [29]), “(a) the state of the pipework system itself and (b) the effectiveness of the biocide dosing”. The Judge had not omitted mention of the appointment of GWT to conduct a survey in 2013 (prior to the further 2013 intervention by the HSE) but underlined that it was not GWT’s responsibility to carry out this work.
30.
With regard to the pipework, the Judge concluded (at [31]) that the remedial work upon which Faltec relied had not been carried out “either with the necessary care or attention
to detail required by the regulations, or with the necessary supervision, or with any adequate understanding as to why the deadlegs should be removed, or the very real dangers they presented”. Further, no system had been put in place to ensure new dead legs were not added to the system. The Judge’s further and, as he described it, “inevitable” conclusion (at [32]) was that the efforts “put in over a few weekends after the receipt of the GWT survey and the September [2013] enforcement notices were a wholly inadequate response”. There had been no systematic inspection; dead legs had been missed; no proper system had been put in place to record new dead legs or to monitor the system to ensure continuous removal. The Judge commented adversely on the “lack of experience and training” of the operatives engaged in the 2013 removal, with the two employees primarily responsible not attending a 5 day City and Guild course until 2014.
31.
As to dosing, Faltec “outsourced” the requisite work to GWT. In its basis of plea, Faltec admitted that “there was a deficit in its oversight of the actions of its specialist water treatment contractor…
GWT
..”. The Judge had some sympathy (at [35]) for the Faltec submission that GWT was a reputable and experienced sub-contractor and it (Faltec) had not been warned that action was needed to prevent the problems which gave rise to the legionella outbreaks. There were, however, problems with the Faltec stance, as explained by the Judge in a telling passage which merits citation at some length:
“35. ….Rather than employing skilled and experienced staff itself, the company is actually seeking to outsource its regulatory responsibilities concerning safety, whilst it does not have an adequate system in place for reviewing the actions of its subcontractor. This is illustrated by the lack of any written documentation of standards and systems of review, and by the limited experience and training of the two people charged with the obligation of receiving the reports of the subcontractor.
36.
I venture to suggest that a five day City and Guilds training course on a subject is unlikely to give anyone the status or expertise to countermand the suggestions of an apparently experienced subcontractor….. The answer lies with the joint experts’ report at para. 10. When asked ‘What would amount to proper oversight of GWT by Faltec’ they have responded that it is ‘agree[d] that Faltec had appointed a Responsible Person, as required by the ACOP/G. The proper expectation is that safe operating parameters should be contained within a Written Scheme, which would then set out the actions to be taken by the Responsible Person if those parameters were not met for a significant period of time. The Responsible Person should have monitored the activities of GWT. It is agreed that the situation revealed by the GWT reports to Faltec should have triggered action by Faltec to ensure immediate and effective increases in dosing. This did not occur.’
37.
I simply add that those charged with the responsibility did not appear to have had the necessary training or experience to do this without such guidance. Such guidance was not in place because the company was over a prolonged period failing to comply with the requirements of having a written regime for monitoring in place.”
32.
Coming next to Count 3 and after reference to the DSEAR regulations, the Judge underlined (at [47]) that, at the time of the incident, “there was nothing to prevent the door being opened while the grid was operating, electronically charged or when a flock dust cloud was present within.” The risk of explosion was “ever present” within the flocking machine when in operation “as the flock cloud was not only electrically charged but also highly flammable, and liable to explosion should an ignition source be applied, such as a spark from the electrically charged metallic grill”. The Judge reiterated (at [48]):
“….The access points were not fixed in position or interlocked meaning it could be opened and accessed whilst the machine was in operation.
This was the unit at which the accident occurred.
”
33.
The Judge went on to describe the accident in detail and recorded Faltec’s basis of plea (set out above).
34.
The Respondent had contended that there were wider failures in training. Against this background, the Judge explored the events leading up to the incident, focusing on the acquisition of the machine in question in 2014. Machine B14 was, in the event, acquired from the Holding Company for some £90,000 less than the price on offer from a third party supplier of flocking machines. B14 arrived in about March 2014. The evidence of Mr McDonald, the senior Manager Design, Engineering and Project, was carefully considered by the Judge. He said this:
“63. As to what if any testing was done in the UK upon the machine before it was put into production Mr McDonald’s statement frankly discloses a quite appalling situation having regard to the fact that Flocking Machines were known by ….[Faltec]…to require DSEAR compliance, and, when
operational to contain potentially explosive ingredients…..”
Mr McDonald had said,
inter alia
, that Faltec had not carried out an assessment of the fire and explosive risks. They had allowed the “Japanese guys” from the Holding Company to take the lead in installing the machine. He did not think the machine had any CE marking. He did not think that any DSEAR assessment had been carried out. There had been no agreement on the specification before the machine was shipped. There had been “an informal process” of checking the safety but nothing formalised against the standard.
35.
The Judge’s conclusion was as follows:
“66. The prosecution contend that given the differences in the quote and the obvious deficiencies in the machine which was built, this is a clear indication that there was cost-cutting at the expense of safety. The defence disagree. In my judgment as a result of agreeing to the lesser price from the HC in Japan, …[Faltec]…was well aware that it was taking on a heavy burden in ensuring the machine was safe for its employees, knowing that it had no one in place to certify it, or ensure it was made compliant, and then knowingly failed to take adequate steps to ensure that it was safe for operation by its employees before commencing with its use upon the line. The machine started in operation in October 2014.”
36.
Between December 2014 and April 2015, there were various incidents involving fires affecting machines B11 and B14. There was a further incident involving B11 (the design was different to that of B14) in July 2015. Some remedial works were undertaken in respect of both machines. Nonetheless, the Judge was satisfied (at [78]) that there had been “significant and substantial non-compliance” in respect of risk assessments, certification of the machinery and training of Faltec employees.
37.
The joint experts were in agreement on the control measures in place (cited at [79]):
“…the hazard or danger which was risked was that a person could intervene by gaining access to the flocking chamber whilst the flocking machine was in operation, with the risk that a source of ignition could be created, primarily through contact with the electrically charged grid. Operators working at the glue unit, the air-blast unit or loading the hopper were at significant risk of injury should an explosion event occur. It was agreed, given the nature of the explosion risked, that persons in the vicinity of the flocking machine, but not intervening…would not be at significant risk…..”
They further agreed (
ibid
) that “interlocked guarding” was required to prevent access via the front doors of the flocking machine and the top cover of the air blast unit. Further still (
ibid
), the joint experts agreed that Mr Haswell had received no proper training and that his injuries were of the nature to be expected in the light of his intervention into the flocking machine. For his part, the Judge concluded that:
“….there was a very real risk of injury greater than that sustained by Mr Haswell being sustained by persons unfortunate enough to be involved in such an accident.”
38.
The legionella incidents:
Turning to the legionella incidents, the Judge sought to proceed in accordance with the Guideline, having regard to the observations of this Court in
Tata Steel
.
39.
Step 1:
As to
culpability
, the Judge rejected the Faltec submission that it should be categorised as low. To the contrary, there were many features which could justify culpability being regarded as high. There had been serious and systemic failures within the organisation to address grave Health and Safety risks. Ultimately, however, the Judge acceded to the Respondent’s submission that medium categorisation was justified but (at [83]) “…it is a categorisation right at the top end of medium”. The Judge was persuaded in this regard by the engagement of an apparently reputable sub-contractor, GWT. However:
“…the lessons of this case are that simply subcontracting out
HSE obligations cannot provide an answer to failures to properly
monitor and overview that contractor’s work. The failings in that regard were significant and substantial….”
40.
Turning to
harm
, the parties were agreed that the level of risk created by the offences fell into Level A – namely, death physical or mental impairment resulting in lifelong dependency on third party care for basic needs or a significantly reduced life expectancy. The issue under this heading went to the likelihood of harm arising; the Respondent contended for a high likelihood; Faltec for a low likelihood. The Judge pondered the question (at [84]) of whether the criminal standard of proof was applicable or whether he should simply assess the likelihood of the harm occurring. At all events, the Judge rejected the Faltec case and, in the light of the statistical evidence, said this:
“….I do not consider that …a risk of between zero and 0.04% of death resulting could possibly be described as low, when considering an urban area.”
Accordingly, the Judge held (at [85]) that risk of level A harm arising was high. It was “more as a result of good fortune” that when 5 people had succumbed to Legionnaires’ disease, there were no fatalities given “…a statistical likelihood that….between 10% and 15% of those infected” would die. The Judge therefore concluded “to the criminal standard” that the risk of harm was high; though he did not say so in terms, it is plain that the Judge here had in mind a high risk of harm
arising
.
41.
In the light of this conclusion, the Judge did not need to resolve the issue of whether he was prohibited from moving up a harm category by the concluding wording on p.5 of the Guideline (see further below). The Judge made it clear (at [86]) that he did not think he was so prohibited; thus, had he been wrong in his assessment of the likelihood of harm being high – and should it only be medium – he would have raised the category of harm from category 2 to category 1 “because of the large numbers of people potentially affected by this outbreak”.
42.
Pausing there, the Judge had now concluded that there was medium culpability and, applying the Guideline matrix, this was a case of Harm Category 1.
43.
Step 2:
Next, it was agreed that Faltec was a Medium level company, having a turnover of under £50 million
per annum
. It followed from the Guideline grid that the range for the offence was £300,000 - £1.3 million. There was aggravation in the form of Faltec’s two previous convictions; although the notices from the HSE were not Court orders, the Judge took the view (at [89]) that they were “akin to” Court orders. He also treated Faltec’s overall poor safety record as aggravating the matter. As to mitigation, the Judge had regard to the steps taken “although these were regularly prompted by intervention by the authorities, appeared lethargic, reluctant and were inadequately implemented”. In the event, balancing these factors, the Judge took a starting point (“SP”) “towards the top end of the range of £1,200,000”.
44.
Step 3:
At the next stage, the Guideline contemplates the decision-maker stepping back and considering proportionality. Here the Judge acknowledged that Faltec was trading at a loss. That was not, however, the position of the Holding Company. Having regard to the statements in Faltec’s 2015, 2016 and 2017 accounts, going to it enjoying the full support of the Holding Company and its position as a going concern, the Judge concluded (at [93]) that “some limited regard” was to be had to the Holding Company.
The Judge then referred (at [94]) to the provision in the accounts, ultimately for some £1.6 million in the 2016 accounts, in respect of these very incidents. While this constituted proper financial provision for these Health and Safety issues, the Judge said in terms that he “obviously….paid no regard to this when considering the level of fine” – but treated it as relevant to the financial health of Faltec and the consequences for others of the fine he had in mind.
45.
Steps 4, 5 and 6:
The only factor to be taken into account here was Faltec’s guilty plea. Accordingly, the Judge reduced his provisional figure of £1.2 million by the full 1/3 credit, so resulting in a fine of £800,000 for the legionella outbreaks. That fine could be expressed as concurrent on each of counts 1 and 2, or it could be attached to one of those counts, with no separate penalty on the other.
46.
The flocking incident:
Here too, the Judge sought to proceed in accordance with the Guideline.
47.
Step 1:
As to
culpability
, there was a case (at [98]), relating to the acquisition of machine B14, for categorising it as “very high” on the ground that failure in regulatory compliance was deliberate and constituted a flagrant disregard of law. In the event, the Judge rejected this option and also rejected the Faltec submission of medium culpability. He held instead (
ibid
) that this was a case of high culpability:
“All of the features for High culpability are present. …[Faltec] fell far short of the appropriate standard. It failed to put in place well recognised standards. It allowed itself to be sold a machine by its holding company which it knew was not certified to the standards in the industry. It failed to deal with the warnings by the HSE concerning its systems. After B14 was introduced onto the line it was subject to fire, and the incidents described had a marked similarity to that which befell Mr Haswell….. I believe this situation was allowed to develop through incompetence, lack of training, lack of resources in Health and Safety, much of which may now have been hopefully rectified…”
48.
With regard to
harm
, the Judge was sure that there was a high likelihood of harm but was “uncertain as to whether the harm fits into level B or level C”. He was, however, satisfied (at [101]) that if he had assessed the case as being one of Level C harm, then because the offence was a significant cause of actual harm (the injuries sustained by Mr Haswell), he could and would have increased the harm category. The upshot was that whether this incident was to be regarded as one of Level B or Level C harm, the relevant category was Harm Category 2.
49.
Step 2:
The upshot was a sentencing range of £220,000 - £1,200,000. As the case verged on very high culpability, it fell at the highest end of this sentencing bracket. It was again aggravated by previous convictions. Further, the Judge had regard to what he termed (at [103]) as “…cost cutting (in terms of the purchase of the machine for £90,000 more cheaply than a regulatory compliant one), which was at the expense of safety”. The Judge made no finding as to the motive for the cheap purchase from the Holding Company but observed that it had the effect of leaving Faltec “with a significant health and safety exercise, which it failed to undertake appropriately.” The Judge regarded the breaches of the enforcement notices as an aggravating factor, though
they were not Court orders; further aggravation arose from the length of time the breaches were ongoing and remarked that it took the accident for Faltec to do what it should have done before operating B14. Still further, the Judge treated Faltec’s poor Health and Safety record as aggravating. There was no real mitigation (
ibid
):
“I reject the defence suggestion ….[of] an injury free period. The machine had been in operation for a year and the injuring explosion was its third in that period. This was an accident waiting to happen, and no sufficient steps were taken to prevent it.”
Accordingly, the Judge chose a SP at the very top end of the category range, namely, £1.2 million.
50.
Step 3:
There was one difference from the position with regard to the legionella outbreaks. Having regard to the role of the Holding Company in the supply of the defective machine, the Judge held (at [104]) that he was entitled “to exceptionally have regard to their resources” in determining whether the penalty to be imposed was proportionate. It must, the Judge said, “be exceptional that a HC be so intimately involved in the events which gave rise to these breaches”. Even without regard to the Holding Company, the Judge could have regard to the size of the provision for a possible fine made in the Faltec accounts and the state of its finance generally. The Judge was satisfied that the penalty was proportionate and would bring home to Faltec “the need for all machinery to be compliant to both European and UK standards when imported”.
51.
Steps 4, 5 and 6:
Here too, the only relevant adjustment related to the discount for Faltec’s guilty plea; allowing a full 1/3, the Judge fixed the fine for Count 3 at £800,000.
52.
Step 7:
Reviewing the totality of the sentence, the Judge was satisfied that the total fine of £1.6 million would bring home to the directors and shareholders of Faltec the appropriate message. No downwards adjustment was called for.
DISCUSSION: COUNTS 1 AND 2 – LEGIONELLA
53.
Principal Issues:
Especially having regard to the wide-ranging attack launched by Faltec against the sentencing observations, it is necessary to underline the appellate role of this Court. Our task is not to re-run the hearing before the Judge – a hearing during which he heard days of evidence. Instead, we are concerned with whether it has been shown that the Judge was wrong and, if so, whether any such error/s demonstrated that the sentence passed was wrong in principle or manifestly excessive.
54.
The following principal Issues can be distilled in respect of the legionella outbreaks, Counts 1 and 2:
i)
Did the Judge err in concluding that Faltec’s culpability was at the top-end of medium? (“Issue I: Culpability”)
ii)
Did the Judge err in concluding that there was a high likelihood of Level A harm (death) arising? (“Issue II: Harm”)
iii)
If the Judge erred in concluding that there was a high likelihood of Level A harm (death) arising, was he precluded from moving up a Harm category? (“Issue III: Moving up a Harm category”) iv)
Did the Judge err as to any applicable aggravating and mitigating factors?
(“Issue IV: Aggravating and mitigating factors”)
v)
Did the Judge err in his approach to Faltec’s financial position? (“Issue V: Financial position”)
vi)
Overall conclusion on Counts 1 and 2. (“Issue VI: Counts 1 and 2 – overall conclusion”)
55.
Issue I: Culpability:
Mr Hockman QC, for Faltec, mounted a sustained argument that the Judge erred in categorising culpability as “Medium” and “right at the top end” of Medium. Mr Mills, for the Respondent, submitted that the Judge’s categorisation was amply justified. We agree with Mr Mills.
56.
As set out in the sentencing observations, the dangers of Legionnaires’ disease were sufficiently well-known, so resulting in the publication of a code of practice - ACOP. ACOP refers to the specific dangers flowing from dead legs. It is common ground that dead legs were present which, as accepted in Faltec’s basis of plea, “ideally…should not have been present”. On any view, there had been communications between the Respondent and Faltec as to dead legs in 2013, yet no effective action had been taken to remove them. Indeed, Faltec did not have an essential “written scheme”, including a “schematic diagram” of pipework at its site. In passing, whether these communications between the Respondent and Faltec should be characterised as “warnings” seems to us to be neither here nor there; those communications focused,
inter alia
, on the concern as to dead legs, a matter of which Faltec should in any event have been cognisant in the first place. It would be quite wrong to underplay the significance of dead legs; the Joint Experts were agreed that:
“…the existence of deadlegs contributed to the overall risk, and…the outbreak strain of bacteria was found to be present in a deadleg on line B21. The nature of that contribution was that if the biocide treatment regime was not effective, such deadlegs were a potential source of migration of…bacteria…from which the route to infection….could progress…..The extent of the contribution to overall risk by the deadlegs present cannot be determined.”
57.
The upshot was that the entire weight of risk management fell on (biocide) dosing. Of itself that does not strike us as prudent. Dosing had been outsourced to GWT, an admittedly reputable sub-contractor. But, as is again common ground, there was a failure in Faltec’s oversight of GWT. As highlighted by the Joint Experts and recorded at [36] of the sentencing observations, Faltec lacked a written scheme containing safe operating parameters. Had a proper oversight system been in place, the GWT reports to Faltec should have triggered immediate and effective increases in dosing. Plainly such training as the relevant Faltec operatives had received was inadequate for them to take action, absent such a written scheme – thus serving to emphasise the importance of written guidance and the seriousness of its absence. We do not overlook the Faltec argument that dosing is capable of remedying problems created by dead legs; however, if the entire risk management system depended upon the success of dosing, then it was imperative to have an adequate system in place to ensure such success. That Faltec did not have.
58.
In all these circumstances, the Judge was amply entitled to reach the conclusion he did as to Faltec’s culpability. Moreover, given the serious, systemic failure of oversight, through the lack of written guidance, the Judge’s finding of “top end” Medium culpability, may be regarded as generous to Faltec.
59.
Issue II: Harm:
As will be recollected, this Issue went to the likelihood of Level A harm - specifically death – arising, from the legionella outbreaks.
60.
One matter can be disposed of at the outset. Although the Judge mused (at [84]) on whether he needed to be sure of the likelihood of the harm arising to the criminal standard of proof, it is plain from his conclusion (at [85]) that he was satisfied, to the criminal standard, that the risk of the Level A harm arising was high. For that matter, we think he was right to consider the question by reference to the criminal standard of proof.
61.
Some guidance on the correct approach to this Issue is, with respect, furnished by
R v Squibb Group Ltd
[2019] EWCA Crim 227
. Giving the judgment of the Court, Leggatt LJ said this (at [44]):
“On the issue of harm, however, while it was common ground that the seriousness of the harm risked was at Level A, there does not appear to us to have been any proper basis for the judge’s conclusion that there was a medium likelihood of such harm arising. The likelihood or otherwise that exposure to asbestos at a particular level for a particular period of time will ultimately cause a fatal disease is not something which is rationally capable of being assessed simply on the basis of supposition, impression or imagination. It is a scientific question which should be answered, if possible, with the assistance of scientific evidence.”
62.
We read this passage as of general application. Thus, in the present case, the likelihood of Level A harm arising can only be assessed having regard to the scientific evidence before the Court. The Court could not, for instance, substitute an impressionistic view for the evidence that those exposed to outbreaks of legionella from cooling towers who would be expected to sustain fatal injuries, would be between 0 and 0.04%.
63.
The more difficult question is the characterisation of that figure, i.e., 4 in 10,000, as a high, medium or low likelihood of harm arising. As it seems to us, this question of characterisation is one for the Court on all the evidence, rather than the expert witness. The Court is here engaged in an evaluative exercise and must, in our judgment, be permitted a margin of appreciation.
64.
That said, the Court’s evaluation cannot ignore the scientific evidence of likelihood.
So, in
Squibb
, Leggatt LJ went on to say this (at [45]):
“….The expert’s best estimate was that, if 100,000 people were exposed to asbestos to a similar extent to Squibb’s employees, about 90 deaths would result. To put this estimated risk in context, the risk of dying from smoking cigarettes is around 1 in 5 (i.e., 20,000 cases per 100,000) and the risk of dying from working in the construction industry for 40 years or from an accident on the roads is around 500-600 chances per 100,000. On this basis, the likelihood that one of Squibb’s employees will die as a result of their employer’s breach of duty in this case is on any view extremely small.”
While we do not read this paragraph as laying down a rule for the characterisation of the likelihood of harm arising, let alone a rule of general application, it does serve as a reminder that the Court’s characterisation ought not to be divorced from the reality of the scientific evidence before it.
65.
On the evidence, the relevant figure for deaths in the present case from an exposure to legionella would be 4 in 10,000. In an urban area (where the Faltec site was located), over a short period of time (unlike the asbestosis, smoking or construction industry examples set out in
Squibb¸
relating to periods of years), we are unable to accept that this figure involves a
low
risk of harm arising.
66.
Moreover, although there is no
precise
evidence as to Level A harm risked other than death, it is logically inescapable that if the risk of death is 4 in 10,000, there must be a risk of other Level A harm in an additional percentage. As the Respondent’s Opening before the Judge indicated, there was evidence that, if untreated, Legionnaires’ disease “will lead to life threatening problems including organ failure or septic shock leading to coma
and possibly
death” (italics added). Thus, as logic alone must dictate, Legionnaires’ disease may well result in catastrophic illness coming within Level A harm other than death.
67.
Against this background, we are satisfied that the correct categorisation for the likelihood of Level A harm arising from these outbreaks of legionella in a densely populated urban area is “Medium”. We reject the Faltec submission of “Low” likelihood and, equally, we are unable to agree with the Judge’s categorisation of “High” likelihood. We do not think that the Judge’s categorisation can be sustained in the light of the statistical evidence before the Court.
68.
For completeness, we add that we view the relevant statistical figure as that comprised in the 0 – 0.04% risk of fatal injuries. We too (as did the Judge) accept that the Respondent’s evidence (that 10-15% of those who contracted Legionnaires’ disease might die) was not inconsistent with Faltec’s (0 – 0.04%) risk figure - but we do not think that this risk assessment of the cohort actually infected informs the characterisation of the likelihood of harm arising in this case. Both sets of figures underline the sheer good fortune that there were no fatalities in the instant case, where five people contracted Legionnaires’ disease – and reinforce the grave view we take of Faltec’s failings in this regard.
69.
Issue III: Moving up a Harm category:
Using the “grid” in the Guideline, a High likelihood of harm results in “Harm category 1”, whereas a Medium likelihood of harm results in “Harm category 2”. The financial impact when applied to a case of Medium culpability is considerable. Thus, Medium culpability and Harm category 1 produce a SP of £540,000 and a Category range of £300,000 - £1,300,000. By contrast, Medium culpability and Harm category 2, mean a SP of £240,000 and a Category range of £100,000 - £600,000. The Judge made clear (at [86]) that if wrong in categorising the risk of Level A harm arising as “High”, he would have moved up a Harm category, so that the same result was achieved.
70.
The foundation for the Judge’s “alternative” approach was as follows. Having used the table in the Guideline (at p.5) to identify an “initial harm category” based on both the seriousness of the harm risked (Level A) and the likelihood of that harm arising (High, Medium or Low), the Court is next enjoined to consider whether either of two further factors applies.
71.
Pausing there, we underline that the Guideline enjoins a Judge to
consider
moving up a harm category or within the category range; the Judge is not
obliged
to make an upwards adjustment. The Guideline is permissive rather than obligatory.
72.
The first of those further factors (“factor i)”) is in these terms:
“
Whether the offence exposed a number of workers or members of the public to the risk of harm.
The greater the number of people, the greater the risk of harm.”
The second factor (“factor ii)”) reads as follows:
“
Whether the offence was a significant cause of actual harm
….”
The Guideline then continues with the following paragraph (“the paragraph”):
“If one or both of these factors apply the court must consider either moving up a harm category or substantially moving up within the category range….The court should not move up a harm category if actual harm was caused but to a lesser degree than the harm that was risked, as identified on the scale of seriousness above.”
73.
The Judge took the view that he would have been entitled to move up a Harm category and was not precluded from doing so by this concluding “caveat”; he said this (at [86]):
“…I would have raised the category of harm from category 2 to category 1, because of the large numbers of people potentially affected by this outbreak, and would have ruled that the caveat on limb 2 of the guidance only applied to the second limb of limb
2, namely elevation of category by reason of injuries sustained.”
74.
The parties disagree starkly on whether this course was open to the Judge. Mr Hockman submitted that it was not. The paragraph applies to both factor i) and factor ii). Actual harm was caused but not amounting to Level A harm, even though Level A harm was risked; accordingly, the Court was not entitled to move up a harm category. Mr Mills submitted that it was. The “caveat” in the paragraph applied only to factor ii) and did
not “fetter” the Court from moving up a harm category in factor i) cases, where many people were exposed to risk.
75.
Attractive though we find the course contemplated by the Judge and the submission of Mr Mills, we are not persuaded that it was open to the Judge (or to us). First, though the Guideline is not to be construed as a statute, on a natural reading, the paragraph applies to both factor i) and factor ii), as its opening words make clear. Secondly, the primary focus of the Guideline – and the gravamen of many Health and Safety offences – is exposure to
risk
, not actual harm. There is, accordingly, ample scope for an upwards adjustment in Harm category in cases where numbers of people have been exposed to the risk of harm - but no actual harm has been caused. Thirdly, it is only where actual harm has been caused, but
to a lesser degree than the harm risked
, that the language of the Guideline does prevent the Court from moving up a Harm category. Fourthly, that is the position here – given that Level A harm was risked but not caused. It follows that the concluding caveat in the paragraph is applicable - all the more so, it would appear, given that the offence was a
significant cause of actual harm
(with regard to the five victims) and thus within factor ii) as well as factor i).
76.
We therefore conclude that the relevant provisional categorisation for the legionella outbreaks, for the purposes of the Table at p.7 of the Guideline, is Medium culpability, Harm category 2. Accordingly, and subject to any adjustment/s, aggravation or mitigation, there is a SP of £240,000 and a Category range of £100,000 - £600,000.
77.
Issue IV: Aggravating and mitigating factors:
We have already summarised the Judge’s treatment of this topic (at [89] of the sentencing observations). Looked at in the round, we are unable to accept the Faltec submissions that he fell into error, let alone that he was “completely wrong” or that the figure at which he arrived was manifestly excessive - aside from the need to scale down the figure in the light of our conclusion as to the relevant Harm category. In any event, it cannot realistically be said that the Judge placed undue weight on the aggravating features; he treated the legionella outbreaks at the “very top end” of Medium culpability but, as will be recollected, the fine was provisionally fixed at £1.2 million for these matters, thus
less
than the top of the Category range. Double counting would, however, be wrong and, with that in mind, we express the matter in our own words to make it clear that there has been no double counting.
78.
A repeated refrain in the Faltec submissions is that the decision of this Court in
R (Health and Safety Executive) v ATE Truck and Trailer Sales Ltd
[2018] EWCA Crim 752
;
[2018] 2 Cr App R (S) 29
, esp. at [58], means that the Court could not have regard to Health and Safety failings outside the period of the indictment. In
ATE
, as explained at [57], that was a consideration of particular importance, in the light of the basis of plea and the different methods of work adopted. Moreover, it is settled law that a sentence cannot reflect offences of which a defendant has not been convicted:
R v Kidd
[1998] 1 WLR 604
. However, nothing in either
ATE
or
Kidd
, or any relevant principle, prevents a Court taking into account previous convictions by way of antecedents as an aggravating factor – provided that they are relevant and that double counting is avoided. Consistent with principle, there is express provision in the Guideline (at p.10), permitting a Judge to treat previous convictions as a statutory aggravating factor.
79.
In our judgment, therefore, the Judge was amply entitled to take into account, as an aggravating factor, Faltec’s two previous Health and Safety convictions, with their attendant grave consequences (as summarised at [13] of the sentencing observations). They were both Health and Safety convictions and we are entirely satisfied as to their relevance. As the Judge put it (at [89]), those were “significant and substantial convictions and they very significantly aggravate these convictions…”. We agree. Furthermore, our treatment of culpability has not reflected them at all, so there is no double counting.
80.
By contrast, the “warnings” given to Faltec in 2013 (dealt with above), fell naturally into a consideration of culpability, so we make no further mention of them here.
81.
As to mitigating factors, with respect to Mr Hockman’s challenge, we do not think that the Judge was wrong to treat them as he did (at [89]) of the sentencing observations.
82.
Overall, subject to any adjustments in respect of the matters which remain to be considered and the discount to be allowed for Faltec’s guilty plea, we share the Judge’s view that Counts 1 and 2 call for a fine towards the top end of the relevant Category range. In the light of the “new” Category range, we fix that figure as £570,000.
83.
Issue V: Financial position:
(A) Introduction:
It is important to be clear as to the nature of this Issue in the context of Counts 1 and 2. The Judge’s decision (sentencing observations at [95]) was that the penalty he had in mind was proportionate, would not impact inappropriately adversely on Faltec or others and would bring home “the seriousness of their transgression”. The Judge declined to make a downwards adjustment to the provisional amount of the fine, on the ground that Faltec had been trading at a loss in 2016 and 2017. The dispute is whether the Judge erred in not making such a downwards adjustment. Faltec submits that he was wrong not do so; the Respondent seeks to uphold his decision.
84.
(B) The Guideline provisions:
Having addressed aggravating and mitigating factors (in the light of the Guideline grid), the sentencing Judge may be required to refer to other financial factors at Step 3, to ensure that the fine is proportionate. This is part of the process of stepping back, reviewing and, if necessary, adjusting the initial fine based on turnover “to ensure that it fulfils the objectives of sentencing for these offences”: Guideline, at p.10. The Court may adjust the fine upwards or downwards.
85.
Step 3 (Guideline, at p.10) provides that the Court should finalise the appropriate level of fine “in accordance with
section 164
of the
Criminal Justice Act 2003
, which requires that the fine must reflect the seriousness of the offence and that the court must take into account the financial circumstances of the offender”. It should not, as the Guideline goes on to say, “be cheaper to offend than to take the appropriate precautions”. The Guideline specifically provides (
ibid
) that the fine must be sufficiently substantial “to have a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation”.
86.
As to whose resources are relevant, the Guideline provides at p.6:
“Normally, only information relating to the organisation before the court will be relevant, unless exceptionally it is demonstrated to the court that the resources of a linked organisation are
available and can properly be taken into account.”
The Guideline continues (at p.10):
“The court should examine the financial circumstances of the offender in the round to assess the economic realities of the organisation and the most efficacious way of giving effect to the purposes of sentencing.”
87.
In finalising the sentence, the Court should have regard to the profitability of the organisation. As the Guideline provides (at p.10), if an organisation has a small profit margin relative to its turnover, downward adjustment may be needed. It is at once to be noted that a downward adjustment
may
be needed; a downward adjustment is not mandatory. By implication (
Tata Steel,
at [25 (iv)]), a downward adjustment may equally be appropriate where the business is loss-making.
88.
(C) The challenge to the Judge’s decision:
Distilling the essence of the Faltec argument, it comes to this:
i)
The Judge was wrong to take into account the position of the Holding Company. Criminal liability and punishment are personal to the offender; a fine should not be imposed on the basis that it will, or might, be paid by a third party. Accordingly:
“….the defendant company must be shown to have a legal right or interest in the resources of the linked organisation in order to satisfy the requirement that those resources are available.”
Furthermore, the 2017 Faltec accounts contained no statement that Faltec was dependent upon the support of the Holding Company to enable it to continue as a going concern.
ii)
The fact that Faltec had, prudently, included a reserve in its 2017 accounts in the amount of £1.6 million, in respect of the fine, was an irrelevance and the Judge erred insofar as he had regard to it.
iii)
As Faltec was loss-making, the Judge erred in failing to make, or consider, a downward adjustment.
89.
(D) The position of the Holding Company:
There is, of course, no dispute as to hornbook principles of separate corporate personality; that criminal liability is personal; and that a fine should not be imposed on the basis that it will, or might, be paid by a third party. None of that is in issue here. The question instead is whether, as the Guideline expressly provides, this is an exceptional case where “the resources of a linked organisation are available and can properly be taken into account”. In that regard, the Court should consider the “financial circumstances of the offender in the round” so as to assess “the economic realities of the organisation”. The “economic realities” test is a broader test than that postulated by Mr Hockman of a legal right of the offender to the resources of the linked organisation. The decision on this point in
Tata Steel
(at [57]) was based on the economic realities test; that was an “exceptional” case in that it was clear that the support of the parent was of the first importance to ensuring that the offender could continue to prepare its accounts on a “going concern” basis. Whether the economic realities test is satisfied will depend on a fact specific inquiry in the individual case; there is no “catch-all” answer. In any event, the question should be approached with a degree of caution; ordinarily, it is only the resources of the offender which are to be taken into account; the fact that companies are members of the same group or have a subsidiary – parent relationship, will not
of itself
satisfy the test; it is only in exceptional cases that the resources of a linked organisation fall to be considered.
90.
Was the present case exceptional? The 2015 and 2016 accounts support the Judge’s conclusion that they were. Over and above the extract cited by the Judge (at [93]) of the sentencing observations, those accounts included the following passage:
“The company meets its day to day working capital requirements by having access to loans from its parent undertaking. The company is dependent on continuing financial support being available from the bank and the continued financial support, should it be required from its parent undertaking.
The parent undertaking has agreed to provide sufficient funds to the company should they be required, to enable it to meet its liabilities as they fall due and has confirmed the availability of such support for a minimum of 12 months from the date of approval of these financial statements.”
In those circumstances, as in
Tata Steel
, to ignore the Holding Company’s resources would be wrong and would produce a misleading and unrealistic picture of Faltec’s resources.
91.
The 2017 Faltec accounts did not contain a statement in the same terms. But had the essence of the matter changed? The 2017 accounts continued to be prepared on a “going concern” basis. There had been, as is plain, a “debt for equity” swap, involving the extinguishment of a £36 million loan from the Holding Company in return for a share issue in an equivalent amount. The reason for the debt for equity swap was explained in the witness statement of Mr Keith Wakley, Deputy Managing Director of Faltec, dated 18 April 2018, which was before the Court. As Mr Wakley expressed it, the swap was carried out:
“…as head office [i.e., the Holding Company] accepted that the outstanding loans were at a level that they could not realistically be repaid. Head Office continue to own 100% of the share capital of …[Faltec]…”
92.
In our judgment, the economic realities here make this too, an exceptional case. Faltec’s dependence on the Holding Company is such that, for Faltec’s accounts to be produced on a going concern basis, it would be unrealistic and misleading to ignore the Holding Company’s resources. The Judge was therefore entitled to have “some limited regard” (at [93]) to the Holding Company’s resources in his proportionality assessment, relating to Counts 1 and 2. The Holding Company was not loss-making. We therefore reject the Faltec challenge to the Judge’s approach, based on his having regard to the Holding Company’s resources.
93.
(E) The £1.6 million reserve:
As appears from the 2017 Faltec accounts, a prudent reserve of £1.6 million has been made against the contingency of a fine in respect of Counts 1-3. The Judge made it plain (at [94]) that the size of the reserve was (of course) irrelevant to the size of the fine. However, he appears to have taken it into account in concluding that Faltec remained solvent
after
making such provision. With respect to the Judge, we are unable to agree that the size of the reserve ought to have formed part of the proportionality assessment. The danger is one of unintended consequences – namely, discouraging prudent reserving. That said, we are not persuaded that Faltec was prejudiced as a result. If the fine did not bear unduly hard
after
making allowance for the reserve, it could hardly have been disproportionate if no account was taken of the reserve. The better course, however, is to leave such provisions out of account.
94.
(F) Ought the Judge to have made a downward adjustment, having regard to the resources of Faltec alone?
On the material before us, despite a substantial turnover, Faltec appears to have been trading at a loss in 2016 and 2017. It follows that the Judge had a discretion to make a downward adjustment. It is plain that he considered doing so but decided against it. In our judgment, that was a decision he was entitled to make. Faltec’s 2017 accounts were presented on a going concern basis. Although there were losses, Faltec’s “Statement of Financial Position” does not suggest that the company was in such ill-health that the impact of the fine (in the amount contemplated by the Judge) would have been disproportionate. Insofar as there is criticism of the manner in which the Judge approached this discretionary exercise, we need say no more than that we would have reached the same conclusion – having regard to all the factors to which reference has already been made. Moreover, given the reduced amount of the fine which follows from our conclusion on the likelihood of harm arising, there is even less reason for making a downward adjustment.
95.
Issue VI: Counts 1 and 2 – overall conclusion:
To recap, having regard to the various matters discussed, the provisional amount of the fine in respect of Counts 1 and 2 is
£570,000 – concurrent on each of those Counts (an approach we prefer to the Judge’s imposition of no separate penalty on Count 2, though there is no practical difference between them). The reduction from the Judge’s equivalent figure of £1.2 million essentially flows from the different view we have taken of the likelihood of Level A Harm arising.
96.
All that remains is the discount for Faltec’s guilty plea. No other adjustments are called for. Although there was a Newton hearing, the Judge allowed the full 1/3 discount (hence his final figure of £800,000 in respect of these Counts). In the circumstances, we propose to follow the same course. The upshot is a fine of
£380,000
, concurrent on each of Counts 1 and 2 – and, to such extent, we allow the appeal on Counts 1 and 2.
DISCUSSION: COUNT 3 – THE FLOCKER INCIDENT
97.
Principal Issues:
Here too, we begin by distilling the principal Issues which arise for decision on this appeal:
i)
Did the Judge err in concluding that Faltec’s culpability in respect of the flocker incident was high? (“Issue VII: Culpability”)
ii)
Did the Judge err in concluding that this charge should be categorised as Harm category 2? (“Issue VIII: Harm”)
iii)
Did the Judge err as to any applicable aggravating and mitigating factors?
(“Issue IX: Aggravating and mitigating factors”)
iv)
Did the Judge err in his approach to Faltec’s financial position? (“Issue X: Financial position”)
v)
Overall conclusion as to the flocker incident. (“Issue XI: Count 3 – overall conclusion”)
98.
Issue VII: Culpability:
Notwithstanding the extensive submissions addressed by Faltec on this Issue, its essence is straightforward, and the point is short. The inescapable factual assessment casts Faltec in an extremely unfavourable light. The Judge’s summary (at [47] – [48]), already foreshadowed, was impeccable:
“At the time of the incident there was nothing to prevent the door being opened while the grid was operating….It is within the flocking machine that the risk of explosion is ever present when it is in operation…..
…The access points were not fixed in position or interlocked meaning it could be opened and accessed whilst the machine was in operation…. ”
In the event, that is precisely what happened. It was an accident waiting to happen. Moreover, the failing was not sudden; this was a longstanding failure on the part of Faltec to meet the requisite safety standards. To reiterate, by their basis of plea, Faltec admitted (as recorded by the Judge, at [57]) that machine B14 did not meet the required safety standards, that risk assessments had failed to identify the control measures necessary and that Mr Haswell had not been sufficiently trained. This was (at the least) a serious failure within the organisation to address a Health and Safety risk. The Judge categorised the flocker incident as one of High culpability and there is no realistic basis for criticism of this culpability categorisation.
99.
Issue VIII: Harm:
This Issue too can be taken shortly.
Given the nature of the harm risked – namely explosion – a credible case could have been made out for Level B risk, i.e.: “Physical or mental impairment, not amounting to Level A, which has a substantial and long-term effect on the sufferer’s ability to carry out normal day-to-day activities or on their ability to return to work”. That said, the Judge (at [101]) was not sure whether the harm came within Level B or the lower Level C (“All other cases not falling within Level A or Level B”). On that footing, we agree with Mr Hockman that the correct course was and is to categorise the seriousness of the Harm risked as Level C.
100.
As to the likelihood of that harm arising, the Judge had an ample basis for concluding that it was high. As the Judge expressed it (at [100]):
“Undoubtedly the frequency of explosion disclosed by the schedule and the lack of regulatory compliance, alterations to the machine to create safe systems or proper training of the staff about these risks gives rise to a high likelihood of harm….”
101.
In Guideline terms, the upshot is, provisionally, Harm category 3. However, on this approach, the Judge made clear (at [101] – [102]) that he was minded to move up a Harm category. The basis for doing so was factor ii) - the offence was “a significant cause of actual harm”, comprised of Mr Haswell’s injuries. The Judge was fully entitled to take this course and we agree with him. In consequence, Count 3 is brought within Harm category 2, with a SP of £450,000 and a Category range of £220,000 - £1,200,000.
102.
Issue IX: Aggravating and mitigating factors:
As already recorded, the Judge viewed this offence as significantly aggravated by reason of a variety of matters (at [103]), with no real mitigation. He therefore decided on a SP at the top of the Category range, of £1.2 million. We agree with the Judge, if not for entirely the same reasons.
103.
First, as with Counts 1 and 2, this matter is aggravated by Faltec’s previous Health and Safety convictions. As the Judge observed, it is additionally aggravated by the convictions in respect of Counts 1 and 2, albeit he did not think it necessary to rely on that further aggravation.
104.
Secondly, for the reasons already discussed, nothing said in
ATE
or
Kidd
, prevents the offence from being aggravated by matters relating to the period October 2014 – October 2015, prior to the date upon which the charge focuses.
105.
Thirdly, the statutory aggravating features listed at p.9 of the Guideline comprise a
“non-exhaustive” list. The Judge – and we – are entitled to consider the facts in the round, when assessing aggravation (and mitigation). Specifically, for present purposes, a matter might fall outside the list (on a proper construction of the statutory list) but nonetheless comprise an aggravating factor.
106.
Fourthly, given that the Judge made no finding “as to the motive for the cheap purchase” of B14 from the Holding Company, there are real difficulties in bringing the matter within the statutory aggravating factor “cost-cutting at the expense of safety”. Plainly, such “cost-cutting” cannot be established merely because a cheaper rather than a more expensive machine has been purchased and it transpires that the more expensive machine had safety advantages. Further, though we decline to accept that the Guideline is
confined
by the decision in
R v F. Howe and Son (Engineers) Ltd
[1992] 2 Cr App R(S) 37, it would be unlikely that it had not been
informed
by the tenor of that decision. In
Howe
(at p.43), Scott Baker J (as he then was) said that particular aggravating features would include situations where the offender:
“…had deliberately profited financially from a failure to take the necessary health and safety steps or specifically run a risk to save money.”
On the basis of any such formulation, the motive for the purchase of B14 necessarily required consideration. It may be that Faltec was fortunate that the Judge made no finding in this regard - but so be it. We therefore do not think that the Judge could properly conclude that Count 3 was aggravated by this statutory aggravating factor. 107.
Fifthly, that conclusion, however, makes no practical difference; the history of the acquisition and operation of flocker machine B14 was such that the offence was significantly aggravated – and plainly so – albeit not by reason of the statutory aggravating factors. In the light of the evidence before him, set out above, the Judge was amply entitled to describe (at [63]) the situation as “quite appalling”. It is unnecessary to repeat the evidence as to a failure to carry out an assessment of fire and explosion risks, the absence of CE marking and the lack of any DSEAR assessment. So too, having acquired the machine as it did and given the absence of certification, the Judge was entitled – and in our judgment correct – to observe (at [66]) that Faltec was
“well aware that it was taking on a heavy burden in ensuring the machine was safe for its employees”. The accident itself demonstrated that Faltec had failed to ensure that B14 was safe for operation by its employees. The matter was further compounded by the two previous (fires or) explosions connected with this machine. It is correct that Faltec had not done nothing and that a consultant had missed the problem which directly led to this accident; further, in the context of his training, it is right to remind ourselves that Mr Haswell was not a designated operator of this machine; but these considerations are dwarfed by the Health and Safety failings which took place, against the background of acquiring an uncertificated cheaper machine from the Holding Company. The Judge’s description (at [103]) that “…the situation which led to this accident should never have prevailed” and that “no sufficient steps were taken to prevent it” was more than justified.
108.
Sixthly, it is unnecessary to belabour the point further. This offence was gravely aggravated. Though Faltec did make improvements after the accident, we find it difficult to see what other course it could have adopted. In any event, such mitigation as there was, was overwhelmingly outweighed by the aggravating factors described above. The Judge did not err in deciding on a SP at the very top of the Category range; in any event, we agree with his decision.
109.
Issue X: Financial position:
We adopt but do not repeat the observations and conclusions under Issue V above, where we dealt with this same topic in the context of Counts 1 and 2. There is, however, one additional point where, with respect, we part company with the Judge – though our difference of view has no practical consequences.
110.
It will be recollected that, in respect of Count 3, the Judge took the view (at [104]) that, exceptionally, he could have regard to the Holding Company’s resources because it would have profited from the supply of the defective machine to Faltec. We cannot agree. Even if the Holding Company was culpable in respect of the supply of machine B14, it simply does not follow that, on this ground, its resources are available to Faltec or can properly be taken into account.
111.
However, this additional matter does not cause us to reconsider the answer we have already given under Issue V – and, for the reasons there set out, we agree with the
Judge’s conclusion that he was not obliged to make any downward adjustment arising from Faltec’s financial position.
112.
Issue XI: Count 3 – overall conclusion:
As already set out, the Judge took as his SP a fine of £1.2 million. Notwithstanding the Newton hearing, he allowed Faltec a full 1/3 discount for its plea and fixed the fine for Count 3 as £800,000, consecutive to the fine in respect of Counts 1 and 2. For the reasons set out above, we are satisfied that the
Judge was entitled to reach the conclusion he did and, for that matter, we agree with him. Accordingly, we uphold the fine of
£800,000
in respect of Count 3.
TOTALITY
113.
As the Guideline provides (Step Eight, at p.12), we must finally consider totality. On totality grounds, we would not have intervened with regard to the £1.6 million total fine imposed by the Judge, had we otherwise been able to uphold it in respect of Counts 1 and 2. In the light of the limited success of the appeal under Counts 1 and 2, the total fine is reduced to
£1,180,000
.
A fortiori,
we do not think that this reduced total amount offends against the principle of totality.
POSTSCRIPT
114.
Faltec’s “Written Argument” ran to more than 60 pages. It was augmented by Mr Hockman’s “Speaking Note” (which he kindly provided) running to 13 pages. Wellwritten though both were and welcome though the Speaking Note was, the length of the “Written Argument” was unacceptable. Indeed, the Speaking Note would itself have sufficed as Faltec’s skeleton argument. Had we been aware of the length of the Written Argument in enough time before the hearing, we would, with respect, have declined to accept it and would have required re-service of a dramatically shortened version.
115.
We note that the current
Criminal Practice Direction (“CPD”)
, at
CPD X11 D.17 (Archbold,
Appendix B-693ce), while providing, subject to any overriding judicial directions, that skeleton arguments must not normally exceed 15 pages, together with ancillary directions as to font sizes and line spacing (amongst other matters), does not contain an express enforcement mechanism. For our own part, we would favour a provision that any skeleton argument exceeding the maximum length would automatically be rejected by the Court office on receipt. We draw these observations to the attention of the Criminal Procedure Rules Committee for its consideration. | {"ConvCourtName": ["NEWCASTLE CROWN COURT"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["failure to ensure the health and safety of non-employees", "failure to ensure the health and safety at work of employees"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleas of guilty", "pleaded guilty"], "PleaPoint": ["entered at the very earliest opportunity"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["NEWCASTLE CROWN COURT"], "Sentence": ["£800,000 fine.", "£800,000 fine, consecutive"], "SentServe": ["consecutive to Count 3 but concurrent"], "WhatAncillary": ["ordered to pay prosecution costs", "£800,000 fine."], "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": ["an employee."], "VictimType": ["an employee."], "VicNum": ["five people"], "VicSex": ["Mr"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["Four of the victims had worked for Faltec"], "VicHomeOffence": ["lived near to the site"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["Mr Haswell had worked", "ambulance to hospital"], "DefEvidTypeTrial": ["expert evidence"], "PreSentReport": ["data not available"], "AggFactSent": ["breaches of the enforcement", "breaches were ongoing", "anxiety and depression", "previous Health and Safety convictions", "poor Health and Safety record as aggravating"], "MitFactSent": ["full 1/3 credit"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence"], "AppealGround": ["grounds of appeal essentially comprise a root and branch attack on the Judge’s conclusions", "totality grounds"], "SentGuideWhich": ["s.3, Powers of Criminal Courts (Sentencing) Act 2000,", "Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline", "Health and Safety at Work Act 1974(“the Act”)", "s.164 of the Criminal Justice Act 2003", "s.125 of the Coroners and Justice Act 2009:", "principle of totality."], "AppealOutcome": ["limited success of the appeal under Counts 1 and 2, the total fine is reduced to £1,180,000"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["we do not think that this reduced total amount offends against the principle of totality."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Newcastle Crown Court"], "ConvictPleaDate": ["Don't know"], "ConvictOffence": ["failure to ensure the health and safety at work of employees", "failure to ensure the health and safety of non-employees"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes", "Yes"], "PleaPoint": ["entered at the very earliest opportunity"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Newcastle Crown Court"], "Sentence": ["£800,000 fine, consecutive", "£800,000 fine."], "SentServe": ["Combination"], "WhatAncillary": ["ordered to pay prosecution costs", "£800,000 fine."], "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": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["5"], "VicSex": ["All Male"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Employed"], "VicHomeOffence": ["Fixed Address"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Medical", "Victim testimony"], "DefEvidTypeTrial": ["Expert Evidence"], "PreSentReport": ["Don't know"], "AggFactSent": ["poor Health and Safety record as aggravating", "breaches were ongoing", "breaches of the enforcement", "previous Health and Safety convictions", "Psychological harm"], "MitFactSent": ["full 1/3 credit"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence"], "AppealGround": ["totality grounds", "grounds of appeal essentially comprise a root and branch attack on the Judge’s conclusions"], "SentGuideWhich": ["s.164 of the Criminal Justice Act 2003", "s.125 of the Coroners and Justice Act 2009:", "Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline", "principle of totality.", "Health and Safety at Work Act 1974(“the Act”)", "s.3, Powers of Criminal Courts (Sentencing) Act 2000,"], "AppealOutcome": ["Allowed&Sentence Replaced by More Lenient Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["we do not think that this reduced total amount offends against the principle of totality."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 502 |
Case Nos:
2004/05937/C1
,
2004/05938/C1
Neutral Citation Number:
[2005] EWCA Crim 971
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Monday, 11 April 2005
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
The Lord Woolf of Barnes
)
MR JUSTICE OUSELEY
MR JUSTICE TREACY
- - - - - - -
R E G I N A
- v -
JAMES GORDON JOHNSON
JODIE THOMAS HIND
- - - - - - -
Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - -
MR R I HUNT
appeared on behalf of
THE APPLICANT JAMES JOHNSON
MR I WEST
appeared on behalf of
THE APPLICANT JODIE HIND
MISS M CONNOLLY
appeared on behalf of
THE CROWN
- - - - - - -
J U D G M E N T
Monday, 11 April 2005
THE LORD CHIEF JUSTICE:
I will ask Mr Justice Treacy to give the judgment of the court.
MR JUSTICE TREACY:
1.
The two applicants in this case are James Johnson and Jodie Thomas Hind. At the start of this morning's hearing they were given leave to appeal against their convictions and so they are now appellants.
2.
Following a trial which took place at Teesside Crown Court before His Honour Judge Fox QC, on 24 September 2004 both appellants were convicted by a jury of burglary (count 1) and of taking a motor vehicle without consent (count 3). At the start of the trial, just before the jury was sworn, both men pleaded guilty to count 2 on the indictment, which was an allegation of theft from the car of the victim of the burglary. The offence was put forward by the appellants as a scavenging theft -- in other words, committed by the two appellants independently of the burglary and the taking of the vehicle which, it was asserted, must have been committed by other people. Having been convicted of the burglary and the taking of the motor vehicle, the judge imposed sentences of five years' imprisonment on each of the two appellants.
3.
The circumstances insofar as they are relevant are these. The victim of the crime was a female in her forties. She was at home alone on the evening of Wednesday 1 June 2004. At about 9.30pm two men knocked on her door. It is not clear if those two men were the appellants. The men said that they were selling items for charity. The complainant did not want to buy anything and she sent them away. She returned to her living room, fell asleep in front of her television and slept until about 3.30am. She awoke at that time and felt a draught. On investigation she found that the front door was ajar and found that her kitchen window and a cupboard door in her hall way were open. When she looked outside her house, saw that her car, a black A Class Mercedes, had gone. She returned to her living room and found that various items were missing, including an overnight bag, a handbag containing nearly £100 in cash, chequebooks, debit and credit cards, a mobile telephone, personal documents and jewellery. In addition to that she found that her car keys had been stolen and a Sony lap-top computer valued at £1200. Property of value had been taken from the car, including a large number of CDs, clothing and paperwork, a briefcase, a portable DVD player and a camera.
4.
The car was later found abandoned. It was examined by a scientist. Fifteen fibres were recovered from the driver's seat and 44 fibres were recovered from the front passenger seat. Scientific analysis showed that fibres taken from the driver's seat matched cotton fibres from the appellant Hind's orange polo shirt and that fibres taken from the front passenger seat matched fibres from Johnson's blue polyester jacket. The defence case was that they were not the burglars; they had found the car abandoned and had got into the vehicle to take items from it and had stolen what they found inside.
5.
It is necessary to give a brief summary of the evidence which was before the court. A Police Constable Turner gave evidence. He said that he had started his shift at about 7pm on the day in question. As part of his daily briefing he was shown pictures on a computer screen of people to whom he should pay particular regard if they were seen by him whilst on duty.
6.
At about 2.30am he was driving his police van when he saw a parked black vehicle similar in shape to the victim's black A Class Mercedes. The interior lights were illuminated. He passed in his vehicle as close as five feet away. He could see two men inside the vehicle. One of them had a torch in his mouth. He was sitting in the passenger seat. PC Turner recognised that man as a person whose photograph he had seen on the computer during his daily briefing at the start of the shift. The officer stopped his vehicle and the consequence of that was that the black car sped off. It was chased by PC Turner, but it got away. In the meantime he had radioed his headquarters. He notified them of the vehicle's getaway and of the fact that he had recognised the passenger. He returned briefly to the police station. He spoke to his sergeant, who gave him Johnson's name. He reviewed the photographs he had seen earlier and identified Johnson as the passenger of the vehicle.
7.
Having obtained Johnson's address, he went to Johnson's house, arriving there at about 2.45am. When he knocked on the door there was no answer and no sign that anyone was inside. He was then called away to what he thought was another incident. In fact it was related to the present matter because it involved the finding by a member of the public of the complainant's lap-top. Having dealt with that matter, PC Turner returned to the police station and there learnt that the complainant's home had been burgled. He then linked the matters that he had seen and the recovery of the lap-top to the burglary of which he had just been informed. Accordingly, he went back to Johnson's address. When he arrived, shortly before 4am, he saw a man at a window whom he recognised as being the same person who had been in the passenger seat of the black car. He went into the house and established that the man he had seen at the window was Johnson.
8.
PC Turner was joined at that address by his colleague, PC Marron. PC Marron's evidence was read to the jury as agreed evidence. Before PC Marron gave his evidence there was an exchange before the jury in which counsel for the defence confirmed that his evidence was agreed. PC Marron said that he entered the house in question and, having gone into the living room, he heard movement coming from the kitchen. He went to investigate. On going into the kitchen he immediately recognised Hind whom he knew from previous dealings. He also noticed that on the kitchen floor there were electrical items. These turned out to be some of those which had been stolen in the course of the burglary in this case. Hind was asked to go into the living room. Once both Hind and Johnson were in the living room, they were told they were under arrest. On being informed of this, Hind attempted to escape through the living room window. Although this was put forward as agreed evidence, when Hind came to give evidence he disagreed with the assertion that he had tried to escape.
9.
In interview Johnson's account was that on the night of the burglary he did not leave home at all, but he recalled Hind coming to his house with a holdall at about 3.10am. He denied that he had ever been a passenger in the black vehicle. He also denied any knowledge of the stolen items. At trial he gave a different account and he had to acknowledge that the account given in interview was a lie.
10.
When Hind was interviewed matters took a different turn. Detective Sergeant Ryder said that fifteen or sixteen hours after Hind's arrest and arrival at the police station he wished to interview him. He therefore went downstairs to the cell area. He was accompanied by Hind's solicitor and a custody sergeant. DS Ryder said that Hind positively refused to leave his cell for the purpose of being interviewed. He said that, having refused to leave his cell for the purpose of interview, Hind was cautioned by him. Because Hind did not leave his cell, he was never interviewed and therefore no explanation or version of events was put forward by Hind at that stage of the investigation.
11.
However, at trial Hind gave evidence. He said on oath that on the evening of the burglary he had met friends and had gone with them to Johnson's house. He, his friends and Johnson had taken heroin and at about 2.30am he and Johnson had gone out to buy some crack cocaine. During their journey, having made a successful purchase of drugs, they found the complainant's car abandoned on a car park with its doors opened. Seeing there was nobody in the area, they decided to steal from the car. Each of the two men got into the car. He (Hind) got into the driver's seat and Johnson sat in the passenger's side. This is consistent with the scientific evidence. They looked for items to steal, took items, left the car and returned on foot to Johnson's house. He denied in his evidence that he had been in the car when the police vehicle came alongside and the black car subsequently drove away. He said that whoever was involved in that incident, it was not himself and Mr Johnson. Further, in the course of his evidence he denied that when he was told that he was under arrest he had tried to escape. He denied that he had positively refused to be interviewed. He claimed that he had been tired and had merely rolled over when the police attended at his cell to take him for interview. He had not made the positive refusal to be interviewed that the officer described.
12.
Hind was cross-examined by counsel for the Crown who put to him that the reason for his refusal to be interviewed was that he had not at the time thought up a convincing account to give in interview.
13.
Johnson's case, as already foreshadowed in this judgment, changed from that which he put forward in interview. He now acknowledged in evidence that he had left home and that the purpose of that was to go and buy drugs with Hind. He now acknowledged that together with Hind he had taken property from the car and taken it home. But he denied that he had committed the burglary or had any part in the taking of the A Class Mercedes in the way alleged by the Crown. He explained his lies to the police in interview as panic as a result of his shock at the suggestion that he had committed the burglary.
14.
During the course of the trial, and before the summing-up, an incident occurred which we must recite. On the penultimate day of the trial a female juror was approached by a member of the public who sought to intimidate her and invited her to find the defendant not guilty. The police carried out an investigation. The investigation showed that the intimidator, who had indeed approached a juror that day, had approached a member of the wrong jury. It appeared on investigation that there was another trial taking place at the same Crown Court, which involved as a defendant the brother of the person who wrongly approached a member of the jury in this case. The judge in this case adjourned the trial while that inquiry took place. When the result of the inquiry was made known to him, the judge addressed the jury. He told them that the police had investigated the incident. He reminded them of the oath which they had taken to reach a verdict on the evidence and said that the matter should not be held against the appellants by the jury in their determination of any issues in the case. We will return in more detail to what was said by the judge at this point. The judge asked the jury whether any of them felt difficulty in continuing to give full and fair attention and consideration to the case. No member of the jury indicated any unwillingness to continue with the case.
15.
In this appeal both appellants advanced a common ground of appeal in relation to the handling of the judge's approach to the jury. It is agreed before us, as it was before the judge, that the police investigation had positively revealed that the juror in this case had been approached in error. In other words, the target of the illegal interference should have been a different juror on a different jury. Complaint is now made that the judge's directions to this jury were insufficient in the light of that known fact, and that the directions did not rule out the possibility of involvement by the appellants in the approach to the jury.
16.
The judge began by telling the jury that the police had investigated the matter, but he did not tell them the result of the police investigation, namely that it appeared that the approach was nothing to do with this case. He went on to say:
"The matter that I want to say is that whatever happened yesterday or anyone's understanding of what may have happened yesterday is not something that should be held in any way against either of the defendants in this case in any decision of yours, the jury, and in any determination of any of the issues in this case. You took an oath to reach a verdict on the evidence in the case. You heard all the evidence in the case and what has arisen since is not something that has any bearing or can have any bearing upon the issues in the case, and so there should not be any inference drawn by any member of your jury with regard to any of the issues in this case and with regard to the verdicts to be returned against either Jodie Hind or James Johnson.
Whatever happened is a matter for separate enquiry, but there is no reason whatever to think that it was initiated or instigated by either or both of them, and so it would be unfair to draw an adverse inference against either of them from whatever may have occurred or your understanding of what may have occurred. So that is the thing that I said I want to say."
The judge went on to ask the jury whether they were able to give full and fair attention and consideration to the case.
17.
Counsel for the appellants submit that that direction given by the judge was inadequate. They submit that it leaves open the possibility that the appellants were involved in the approach; that there was the possibility that others acting on behalf of the appellants were behind the approach; and further, that those directions left the impression that the investigation was not conclusive. It is submitted that, since the information before the court pointed to the fact that this was an error by the person who wrongly approached the juror and who had nothing to do with the appellants, that should have been made clear to the jury, and that the directions which were given left it open to conclude that what had occurred had something to do with the appellants when in fact it was known that it was not.
18.
We have taken account of those criticisms made by the defence. It might have been advisable for the judge to have given a direction in more emphatic terms, given the information in his hands; but he had to deal with the matter based on his feel of the case and his appreciation of the situation as he saw it. We consider that the judge sufficiently protected the appellants' interests by telling the jury that it would be unfair to draw an adverse inference and that they should not hold the incident against the appellants in any way. In our judgment the judge's approach provided the jury with a clear direction that they should not in any way hold the incident against the appellants. We consider that the jury would have understood that. In our judgment this is not a matter in respect of which we feel that the judge fell into error.
19.
We next consider discrete grounds advanced first of all on behalf of the appellant Hind. The first ground concerns his refusal to be interviewed and his refusal to leave his cell for the purpose of interview. It is asserted that the evidence of what took place in the cell area was not admissible and that the judge's comments thereon in the course of his summing-up wrongly allowed the jury to draw an adverse inference from Hind's refusal to be interviewed. The assertion made by the appellant is that in the circumstances no such adverse inference was available to be drawn. The submission is based on the ground that the conditions which are required to be established pursuant to
section 34(1)(a)
of the
Criminal Justice and Public Order Act 1994
had not been established and thus the judge was wrong to allow the jury the possibility of drawing an inference against Hind.
20.
Section 34(1)(a)
of
the 1994 Act
provides as follows:
"(1) Where in any proceedings against a person for an offence evidence is given that the accused --
(a) at any time before he was charged with the offence on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed failed to mention any fact relied on in his defence in those proceedings being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed as the case may be, subsection (2) below applies."
Subsection (2)(d) provides:
"Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper."
It is necessary also to draw attention to
section 34(5)
, the effect of which is to preserve the common law as it existed prior to the implementation of
the 1994 Act
. In particular subsection (5)(b) provides:
"This section does not --
(b) preclude the drawing of any inference from any such silence or other reaction of the accused which could properly be drawn apart from this section."
21.
Prior to the commencement of the trial, the judge ruled that the evidence of the refusal to come out of the cell was admissible. The matter was revisited at a later stage of the trial when the judge ruled on whether or not prosecuting counsel could cross-examine in relation to that evidence. The judge said:
"It is plain to me that the provisions of
section 34 of the Criminal Justice and Public Order Act 1994
do not apply to the present situation, save for
section 34(5)
which preserves the common law position."
(The reference to the provisions of
section 34
are, by common consent, agreed to be a reference to
section 34(1)(a)
.) The judge continued:
"The common law position is in this situation in my judgment most helped by reference to Lord Justice Stocker's words to be found in Archbold, Chapter 15, paragraph 412."
(The trial judge was quoting an extract from
R v Raviraj
(1987) 85 Cr App R 93
, 103). He continued:
"I quote:
'The doctrine is only a particular aspect of the general proposition that where suspicious circumstances appear to demand an explanation, and no explanation or an entirely incredible explanation is given, the lack of explanation may warrant an inference of guilty knowledge in the defendant. This again is only part of a wider proposition that guilt may be inferred from unreasonable behaviour of a defendant when confronted with facts which seem to accuse.'"
22.
In the summing-up the judge reminded the jury that Detective Constable had given evidence of a positive refusal by Hind to come out of his cell. He then drew the jury's attention to a conflict of evidence between DC Ryder and the appellant Hind, who said that he did not positively refuse; he had merely been asleep and rolled away. The judge told the jury that if they came to the conclusion that DC Ryder was right and that Hind had positively refused to be interviewed, then they should bear a number of things in mind before they came to any conclusion that this was even a straw in the wind which indicated Hind's guilt on either or both of the charges on the indictment. He reminded the jury that Hind had been cautioned at the time of his arrest and told that he had a right to remain silent, and that he was acting in his rights to say that he was not going to answer any questions and was not going to come out of the cell to be interviewed. But he went on to say that the jury had to be fair in their approach to the whole question of what they made of that area of the evidence. Having said that, he reminded the jury of the Crown's case and the cross-examination by Miss Connolly in which she had put forward the suggestion that Hind had refused to be interviewed because he had not by then thought up a story that anyone would swallow. The judge said to the jury that they should only draw an inference of that sort if they thought it was fair and reasonable to do so in the circumstances of a particular case. He warned them to be careful in deciding what inference they should draw. But he said that if at the end of their deliberations the jury felt they could say that this episode was a pointer towards guilt, then they could treat it as such, although it could not prove guilt or even be the main reason for finding guilt. He reminded them at the end of his direction on this area of the case that "the bottom line" was whether the circumstances called for a different reaction on Hind's part and whether his behaviour was fair and reasonable in the circumstances or whether there was an inference to be drawn from his behaviour. He said that it would be a pointer or a straw in the wind if such an inference could be drawn.
23.
The position, therefore, is that evidence of Hind's refusal was admitted before the jury. It was cross-examined to by the Crown and a positive suggestion was made by Crown counsel. It was made the subject of a direction by the judge which, even applying the safeguards referred to by the judge and summaries above, could have resulted in an evidentially adverse finding to the appellant Hind.
24.
The appellant Hind's case was that none of the foregoing should have occurred. It is submitted that the evidence was not admissible, that it should not have been commented on in cross-examination by the Crown, nor should it have been the subject of a possible adverse inference by the jury. The appellant contends that
section 34(1)(a)
does not apply. The judge, as we have seen, agreed with that submission, but said that the evidence was admissible at common law under
section 34(5)
. The appellant contends that that ruling was incorrect. The Crown has argued that the evidence was admissible under
section 34(1)(a)
but, failing that, relies on
section 34(5)
.
25.
The Crown's submission that
section 34(1)(a)
applied is based on the assertion that that subsection is to be construed broadly; otherwise, say the Crown, the provision can be circumvented by a refusal to attend an interview and that this would frustrate the purpose of the legislation. The Crown point to the decision of the House of Lords in
R v Webber
[2004] 1 Cr App R 40
where at paragraph 33 it was said that the object of
section 34
was "to bring the law back into line with common sense". They further say, rightly, that the object of
section 34
is to achieve an early disclosure of a suspect's account.
26.
The Crown argues that there is no qualitative difference between a defendant who is taken to an interview room and who after caution does not answer questions and who subsequently at trial puts forward for the first time a detailed account, and a defendant who, knowing he is to be interviewed, positively refuses to leave his cell for that purpose, even though he has had the caution administered to him.
27.
The difficulty lying in the way of the Crown's submission is in the wording of
section 34(1)(a)
. The wording, to which we have already referred, refers to a suspect who, on being questioned under caution by a constable, fails to mention a fact which he later relies on in his defence. Although in order to construe the statute it may be permissible, as in
Webber
, to give a broad rather than a narrow, pedantic meaning to a word or a phrase, the language of the statute cannot be ignored. Notwithstanding the submissions of the Crown, we do not feel able to regard what occurred as coming within the ambit of the phrase "on being questioned". No question was, in fact, put. What occurred was a precursor to that stage of the process. The matter is emphasised, in our view, by reference to the words of the caution itself which are:
"You do not have to say anything, but it may harm your defence if you do not mention
when questioned
[our emphasis] something which you later rely on in court. Anything you do say may be given in evidence."
Further support for our view may be found in
R v Argent
[1997] 2 Cr App R 27, where at pages 32-33 Lord Bingham CJ laid down six pre-conditions which had to apply before
section 34
could operate. The third of those pre-conditions was that the failure to mention a fact had to occur during questioning under caution. Accordingly, we agree with the view of the trial judge that
section 34(1)
did not apply to this situation.
28.
That leaves the question of whether the position at common law, as preserved by
section 34(5)
, avails the Crown, as the judge held that it did. The judge relied on the passage we have already cited from the judgment of Stocker LJ in
Raviraj
. The appellant Hind asserts that those observations were made in the context of a very different point which related to the effect, if any, of the failure of an offender to offer an explanation for the fact of possession of stolen goods to which the doctrine of recent possession applied. He submits that that is very different from the situation which arose in this case of a failure to respond to an invitation to make himself available for questioning in the context of the investigatory process of this case. It appears that the trial judge was referred only to the extract from
Raviraj
which we have cited above. However, reference to the full report shows that there was material which may well have led the judge to a different conclusion. At page 106 of that report, after considering a number of authorities, Stocker LJ cited from the judgment of this court in
R v Gilbert
(1978) 66 Cr App R 237
. He cited with approval the following passage as an accurate statement of the law as it existed in 1987 (and thus prior to the passing of
the 1994 Act
). He said:
"At page 244 Lord Dilhorne, giving the judgment of the Court, said:
'There are a large number of reported cases arising from comments made at trials on the failure of the accused to disclose the defence put forward at the trial when questioned by the police or at an earlier stage of the proceedings. It is, as Lord Parker CJ said in
Hoare
(1966) 50 Cr App R 166, 169, not possible to reconcile all of them. It is in our opinion now clearly established by the decisions of the Court of Appeal and of the Court of Criminal Appeal that to invite a jury to form an adverse opinion against an accused on account of his exercise of his right to silence is a misdirection .... We regard the present position as unsatisfactory. In our view it may not be a misdirection to say simply "This defence was first put forward at this trial," or words to that effect, but if more is said it may give rise to the inference that a jury is being invited to disregard the defence put forward because the accused exercised his right of silence, in which case a conviction will be placed in jeopardy. It is not within our competence sitting in this Court to change the law. We cannot overrule the decision to which we have referred. A right of silence is one thing. No accused can be compelled to speak before, or for that matter at, his trial.'"
The passage cited makes plain that the Court of Appeal in
Gilbert
, as approved by this court in
Raviraj
, was stating that as far as the common law was concerned, a judge was not entitled to comment adversely on an accused's failure to respond to police questioning or to volunteer his account of events at a stage prior to the trial.
29.
We view the passage just cited, which was not drawn to the trial judge's attention, as one which has much greater relevance to the circumstances of this case than the passage which was referred to by the judge. In reality the appellant Hind was in an emphatic way exercising his right to silence, which has to be tested under
section 34(5)
of
the 1994 Act
. It has to be tested by reference to the common law in existence prior to the passing of
the 1994 Act
.
30.
It follows that in our judgement, adopting the passage cited and the position at common law prior to the passing of
the 1994 Act
, no comment of the sort made by the judge or the Crown was permitted where there was a failure to disclose the defence ultimately put forward at the trial, even in a case where the questions were put by the police to the appellant. Whatever the position might be at common law in relation to silence in the face of accusations made by others who were not police officers or concerned in the investigation of offences, it does not apply in this situation where the common law provided protection to an offender who did not wish to answer questions and who did not wish to reveal his case before trial.
31.
It follows that the jury in this case should not have been directed that they could draw an adverse inference from the appellant's refusal to make himself available for interview. Nor should the Crown have been permitted to cross-examine as they did. Accordingly, we uphold the appellant Hind's submission on this point. We will return later to the impact our finding has on the safety of the conviction.
32.
The Crown express concern that if the appellant's submissions were upheld it would enable defendants to avoid
section 34
inferences by adopting the course which the appellant Hind did. We do not agree that this is necessarily so. First, no argument was put before us or the trial judge in relation to
section 34(1)(b)
of
the 1994 Act
. Secondly, in circumstances such as the present of a refusal to attend interview, the police may choose to put questions to the suspect, adapting as far as possible the protections contained in Code E. It would be for the Crown Court on some future trial to determine whether such a procedure was fairly admissible and whether, in the event of continued refusal to mention any fact later relied on, the provisions of
section 34
were triggered.
33.
Further, we draw attention to the provisions of the current Codes which regulate interviews. In Code C12.5 and Code E3.4 there are provisions which deal with the situation which arose in this case and give guidance to the police in such circumstances. In our judgment the pessimism expressed by the Crown as to the effect of any ruling in favour of the appellant is not well founded in the light of those matters to which we have drawn attention. We were also informed by Mr West that he was aware anecdotally that in the early days after this provision came into force, some defendants had attempted to frustrate
section 34
by refusing to attend an interview and that the matter had been dealt with by the Metropolitan Police by posing questions to a suspect in the cell area. It is said that such a practice had caused attempts by suspects to circumvent the legislation to cease.
34.
We move on to consider other grounds of appeal advanced on behalf of Hind. Complaint was made about the way in which the judge dealt with factual disputes between Hind and the Crown. It will be recalled that Hind disputed in his evidence that he had attempted to escape and he disputed that he had positively refused to emerge from his cell for questioning. In the light of what we have already said on the latter issue, we do not need to address further that part of Mr West's submissions. But as to the former, we consider that the judge properly highlighted the factual dispute which existed as to the alleged escape between the police officer on the one hand and the appellant Hind on the other.
35.
The judge was fully entitled to draw attention to the fact that Hind disputed the escape at a late stage of the trial. The transcripts which we have show that shortly before the officer was called to give evidence on the point, Hind's counsel, in his presence, told the court that the evidence was agreed. The jury heard this at the time. When Hind, therefore, gave an account which was at variance with that which had been presented to the jury as agreed evidence with the consent of defence counsel and in the presence of Hind, it is hardly surprising that the judge felt compelled to explain to the jury counsel's role in the case and the significance of the apparent change in position. We see nothing wrong in the way in which the judge approached the matter. He was bound to do so following the way matters had developed in the trial.
36.
We do not accept counsel's criticism that the issue of escape or the issue of refusal to emerge from the cell were "manufactured" disputes of fact. It is unclear as to whether counsel was submitting that they were manufactured by the judge or by the Crown, but in either case, because of the events which had arisen during the course of the trial, the judge had to deal with them in the course of his summing-up.
37.
However, in relation to the escape attempt there is some force in a further argument advanced on behalf of the appellant Hind. Complaint is made that the judge failed to invite the jury to consider, as he had done in the case of Johnson when he directed the jury on lies told by Johnson in his interview, whether if they found that Hind had attempted to escape, this was equally consistent with his wishing to conceal his guilt of theft at this stage, as opposed to the burglary or the taking of the vehicle. No such qualification was put before the jury for their consideration in the context of this episode in the evidence. We feel that there is force in the complaint made by counsel in that respect.
38.
Mr Hind further complains about identification directions which were given. Unusually these were identification directions given not in relation to him, but in relation to his co-accused Johnson. Hind says that the directions which were given in relation to Johnson were relevant to his case because although he was not identified by the officer, his case was that he was with Johnson at all material times and thus he was affected by the evidence of identification and any failure or flaw in the directions given in that area would have an impact in his case as well.
39.
Three specific matters are pointed to as being absent from the identification directions. First, the judge did not explain to the jury why there was a special need for caution in identification cases. Secondly, the judge did not tell the jury that a convincing witness might be a mistaken witness. Thirdly, this being a case where part of the process involved looking at a photograph which the jury had not seen, the judge did not draw attention to potential difficulties which may exist when photographs form part of the identification process. Potential difficulties may arise in terms of quality and resemblance to the suspect, but complaint is made that no comment or direction was given to the jury in relation to that aspect of the matter.
40.
No precise form of words is required for a
Turnbull
style direction. What is important is that the jury is exposed to the full force of the
Turnbull
directions in any case where the issue of identification forms a substantial part of the case advanced for the Crown. In our judgment there is some force in the criticisms made in the respects that we have already recited. It is right to say, in fairness to the judge, that his direction was full in terms of potential difficulties or weaknesses of the circumstances of identification. It focused on the necessity for the jury to assess the reliability of the witness's evidence, and of course the identification issue has to be viewed in the context of a case where there was scientific evidence linking the appellant Johnson to the very seat in the vehicle in which the police officer said that he had identified Johnson and where, very shortly after the purported recognition or identification, the police had visited Johnson's home and found stolen goods which related to the burglary in question. The arm of coincidence has stretched a long way in this case in reaching out towards Johnson. However, there are respects, which we have already mentioned, in relation to which criticism can be made of the identification direction. As far as that aspect of the matter is concerned, counsel for Johnson did not make separate submissions, but we understood him to adopt the submissions in relation to identification made on behalf of the appellant Hind.
41.
Johnson himself raised discrete grounds of appeal. The first matter which he raised related to the question of his character. His complaint was that the jury wrongly learnt of his (Johnson's) bad character in a number of ways. First, PC Turner gave evidence in-chief as to having seen Johnson's photograph on a police computer during his evening briefing. That, it is said, would tell the jury that Johnson was of bad character. Secondly, complaint is made because PC Turner gave evidence of having been provided with Johnson's name by another police officer before he checked the image on the computer after he had made purported identification from his car. Again that is said to point in the same direction. Thirdly, complaint is made that the judge in his summing-up spoke of the officer having viewed the images at the briefing as being images of people the officer had a duty to keep in mind on that evening.
42.
It has to be remembered when these complaints are made that Johnson's character in other respects was already before the jury. His own case was that he had been involved in taking Class A drugs; that he had gone out that evening with another to purchase further Class A drugs; that he had stolen items of some value from what he said was the victim's abandoned car; and that those items had then been taken back to his house. Further, his case was that he had lied in the account which he initially gave to the police of having spent the evening at his home and had not left it for any purpose whatsoever. Accordingly, the matters now complained of must be seen in that context.
43.
It seems to us that the evidence as to the officer's viewing to the images before and after the purported identification of Johnson was evidence which was relevant for the purpose of assessing the accuracy of the identification and the circumstances in which it had been made. Given that there was a dispute on identification, it was in our view inevitable that evidence of this sort would emerge at the trial. The way in which it was put before the jury did not go beyond that which was necessary for the relevant purpose which we have identified. We consider that for its probative purpose it was not outweighed by considerations of prejudice.
44.
We have given separate consideration to the judge's remark in summing up. We do not consider that it adds materially to the fact that the image was held on computer, and so we do not conclude that it was objectionable in the context in which it was made. It explained why the officer kept the image in mind when he went out on his duties on the night in question and was thus able to make an identification when he saw a person in the car.
45.
Finally under this heading, complaint is made (and it is made jointly with Hind) of the fact that PC Turner volunteered to the jury that the co-appellant Hind was known to him from some prior incident or dealings between the officer and Hind. It was submitted that Johnson would have been prejudiced by this remark by reason of his association with Hind. In our judgment the judge rightly rejected an application at trial by Hind for the jury to be discharged. The judge said that there was no necessary adverse inference to be drawn from the remark and that no further reference should be made to it. This is not an uncommon situation in a trial. What occurred was not something of such drama or significance as to stand out in a way which would have required a different course. The judge had a discretion. We do not consider that it was wrongly exercised in this instance. Nor are we persuaded that the incident has any cumulative effect in Johnson's case on the ground of character upon which Johnson could successfully rely. Accordingly, the complaints made as to the asserted admission of bad character through these various means is not one which we consider has substance.
46.
In the course of this judgment we have identified two particular areas in which we have said that the judge dealt with matters in a way which was not satisfactory. One is the way in which the question of adverse inference arose. On this type of issue much depends as to the way in which the case was put to the jury by the judge and the place which any particular matter has in the scheme of the case as a whole. In relation to the
section 34
aspect, once the evidence of the confrontation in the cell area was admitted, it is our judgment that under the common law the jury should have been directed either to ignore the incident or at the very least not to hold the refusal of the defendant to attend for interview against him. In other words, there should have been positive direction by the judge to the jury that they should not make use of that material in a way which was adverse to the defendant. That did not happen in this case. The judge, albeit with careful safeguards, left it open to the jury to draw an inference adverse to the appellant Hind from his failure to emerge for interview. The judge called it a pointer or a straw in the wind, but it was something nonetheless which was left in the case, not as something to be ignored or not held against the appellant, but as something which might tell against him if the jury saw fit. Furthermore, the jury had seen Crown counsel cross-examine Hind and put to him positively that the reason for his failure to leave his cell for the purpose of interview was because he had not yet made up the explanation which he was falsely, the Crown would say, putting forward at trial. That assertion by the Crown was repeated to the jury by the judge as an inference that they could adopt if they saw fit, notwithstanding the warnings that the judge had given to them. Therefore, far from being told to ignore or not hold the appellant's actions against him, in those respects it was left open to the jury to use this material against him.
47.
There seems to us to be a further respect, which we have already touched upon in this judgment, of which criticism can be made. It is asserted that in dealing with this issue the judge failed to point out to the jury for their consideration that the failure to emerge for interview might be referable to the fact that the defendant was guilty of theft as opposed to the allegation of burglary or the taking of the motor vehicle. He did not leave that matter for their consideration or leave it to them as a factual scenario on which they could come to a conclusion.
48.
We turn to the question of identification. As we have observed, in many respects the identification made by the police officer was supported by the argument of coincidence and the available scientific evidence. Notwithstanding that, it appears to us that in the three respects which we have earlier identified the direction which was given on identification did not include evidence which should have been included in the direction in the context of this case. It may be that had the question of the direction on identification stood alone, that would not of itself have been sufficient to call into question the safety of the conviction. But we have come to the conclusion that there is a cumulative effect in this case. Hind was affected by the identification direction and directly affected by the matters under
section 34
. Given the matters to which we have already drawn attention, we are unable to say that the conviction in his case was safe.
49.
We turn to the case of Johnson. He would have been directly affected by the identification direction issue and, since both men were alleged to have been together at all material times, he may have been affected in the eyes of the jury by the position which was taken in relation to
section 34
on the account put forward by Hind at trial.
50.
Accordingly, we have come to the conclusion that in Johnson's case, too, the convictions should be regarded as unsafe. In each case the jury's verdicts will be quashed.
THE LORD CHIEF JUSTICE:
Miss Connolly, are you asking for a retrial in this case?
MISS CONNOLLY:
I am, my Lord, yes.
THE LORD CHIEF JUSTICE:
Can you oppose that, Mr West?
MR WEST:
My Lord, yes, we would submit that the court should exercise its powers simply to quash the convictions for burglary and taking the conveyance and proceed to sentence on the matter of theft, which was a separate count to which each defendant pleaded guilty.
THE LORD CHIEF JUSTICE:
Why should there not be? There is a very substantial case against both these defendants. Why should there not be a retrial?
MR WEST:
My Lord, we submit that it would be unfair to send them back for a retrial in relation in particular to two aspects of the case which now they would face a different situation to that which they faced at their trial last year. The first is the bad character provisions. The Crown could now -- whether they would of course remains to be seen -- they could, and we would not be able to oppose it on any lawful grounds or discretionary grounds if they did, be able to put in the evidence in the retrial the bad character of these two defendants. So that is one reason.
The second is this. In particular in relation to Hind, your Lordships have said that in relation to the aspect of not coming out of the cells, effectively Mr Hind should not have had that evidence adduced before the jury, he should not have been cross-examined about it and the direction should not have been given. In the trial that took place there was no reference to any other adverse inference direction. Your Lordships referred to the
section 34(1)(b)
direction. It would be unfair to Mr Hind, when he has had one trial in which matters have gone as awry as he did in relation to the identification of Hind which you found to have substance, and the adverse inference direction which your Lordships found to have substance, when added to the additional prejudice that he may face when it comes to the possibility of a bad character direction in his case, it would not be right effectively to put him through having a second trial on different terms to that on which he had his first trial which should have been conducted in a different way, as your Lordships have found.
So, in our submission, the right course, perhaps exceptionally given the intervention of Parliament in relation to particularly bad character, and the other factors that I have mentioned, the right course would simply be to quash the conviction and sentence him for theft.
THE LORD CHIEF JUSTICE:
Thank you. Anything you wish to add, Mr Hunt?
MR HUNT:
My Lord, I have been listening with care to your Lordships' comments that this seems to be a case distilling towards events after the initial identification in the car. I submit that it is also within your Lordships' discretion to substitute, even on the count of burglary, a count of theft.
THE LORD CHIEF JUSTICE:
Yes.
(
The court conferred
)
THE LORD CHIEF JUSTICE:
We order a retrial. We have to give certain directions. We allow the appeal and quash the convictions. We specify the counts which are quashed, namely those to which the defendants did not plead guilty but which they contested. We direct that a fresh indictment be preferred and direct that the defendants be arraigned on the fresh indictment within two months, as amended by
section 43 of the Criminal Justice Act 1988
. Thank you for your assistance. We are very grateful to you.
____________________________________ | {"ConvCourtName": ["Teesside Crown Court"], "ConvictPleaDate": ["24 September 2004"], "ConvictOffence": ["taking a motor vehicle without consent", "burglary", "theft"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["both men pleaded guilty"], "PleaPoint": ["At the start of the trial, just before the jury was sworn"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Teesside Crown Court"], "Sentence": ["five years' imprisonment on each of the two appellants"], "SentServe": ["data not available"], "WhatAncillary": ["data not available"], "OffSex": ["two men"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["Johnson's house"], "OffMentalOffence": ["data not available"], "OffIntoxOffence": ["had taken heroin"], "OffVicRelation": ["two men knocked on her door"], "VictimType": ["the victim of the burglary"], "VicNum": ["the victim"], "VicSex": ["female"], "VicAgeOffence": ["forties"], "VicJobOffence": ["data not available"], "VicHomeOffence": ["at home alone"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["identification", "Scientific analysis showed that fibres taken from the driver's seat matched cotton fibres", "Police Constable Turner gave evidence"], "DefEvidTypeTrial": ["defence case was that they were not the burglars; they had found the car abandoned"], "PreSentReport": ["data not available"], "AggFactSent": ["£100 in cash, chequebooks, debit and credit cards, a mobile telephone, personal documents and jewellery"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["appellants"], "CoDefAccNum": ["two appellants."], "AppealAgainst": ["convictions"], "AppealGround": ["asserted that the evidence of what took place in the cell area was not admissible", "ground of appeal in relation to the handling of the judge's approach to the jury"], "SentGuideWhich": ["section 34(1)(a) of the Criminal Justice and Public Order Act 1994", "Section 34(1)(a) of the 1994 Act"], "AppealOutcome": ["We order a retrial. We have to give certain directions. We allow the appeal and quash the convictions.", "retrial"], "ReasonQuashConv": ["the direction which was given on identification did not include evidence which should have been included in the direction in the context of this case."], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Teesside Crown Court"], "ConvictPleaDate": ["2004-09-24"], "ConvictOffence": ["theft", "taking a motor vehicle without consent", "burglary"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["At the start of the trial, just before the jury was sworn"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Teesside Crown Court"], "Sentence": ["five years' imprisonment on each of the two appellants"], "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": ["Yes-drugs"], "OffVicRelation": ["Stranger"], "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": ["identification", "Police testimony", "Forensic evidence"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["Financial gain /value"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Offender"], "CoDefAccNum": ["1"], "AppealAgainst": ["convictions"], "AppealGround": ["asserted that the evidence of what took place in the cell area was not admissible", "ground of appeal in relation to the handling of the judge's approach to the jury"], "SentGuideWhich": ["Section 34(1)(a) of the 1994 Act", "section 34(1)(a) of the Criminal Justice and Public Order Act 1994"], "AppealOutcome": ["We order a retrial. We have to give certain directions. We allow the appeal and quash the convictions.", "retrial"], "ReasonQuashConv": ["the direction which was given on identification did not include evidence which should have been included in the direction in the context of this case."], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 47 |
Neutral Citation Number:
[2018] EWCA Crim 2445
Case No.
2018/01230/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Friday 10
th
August 2018
B e f o r e:
LADY JUSTICE THIRLWALL DBE
MR JUSTICE KNOWLES
and
MR JUSTICE GOOSE
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
- v -
A B
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Miss M Williams
appeared on behalf of the Appellant
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
(Approved)
WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
LADY JUSTICE THIRLWALL:
I shall ask Mr Justice Goose to give the judgment of the court.
MR JUSTICE GOOSE:
1. The provisions of section 45 of the Youth Justice and Criminal Evidence Act 1999 are engaged in this case because the appellant is under the age of 18. An order was made under section 45 in the Crown Court in the following terms:
"No matter relating to [the appellant], a person concerned in the proceedings, shall while he is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him as a person concerned in the proceedings and in particular:
a) His name;
b) His address;
c) The identity of any school or other educational establishment attended by him;
d) The identity of any place of work; and
e) Any still or moving picture of him."
We extend the terms of the order under section 45 to this appeal. The appellant will be referred to as "AB".
2. The appellant appeals against sentence with the leave of the single judge. He was born on 19
th
April 2001 and is now aged 17. At the time of these offences he was aged 16.
3. On 12
th
March 2018, in the Crown Court at Northampton, having been committed for sentence by the Youth Court pursuant to sections 4A and 3B of the Powers of Criminal Courts (Sentencing) Act 2000, the appellant was sentenced by Mr Recorder Chinery to 36 months' detention in a young offender institution. The sentence was imposed for five offences as follows: having an article with a blade or point, contrary to section 139(1) of the Criminal Justice Act 1988 (offence 1), eight months' detention; possession of a controlled drug of Class A, contrary to section 5(2) of the Misuse of Drugs Act 1971 (offence 2), eighteen months' detention; possession of an offensive weapon (ammonia), contrary to section 1(1) of the Prevention of Crime Act 1953 (offence 3), eight months' detention; possession with intent to supply Class A drugs (cocaine), contrary to section 5(3) of the Misuse of drugs Act 1971 (offence 4), 36 months' detention; and possession with intent to supply Class A drugs (heroin), contrary to section 5(3) of the Misuse of Drugs Act 1971 (offence 5), 36 months' detention. All sentences were ordered to be served concurrently.
4. The appellant relies on three grounds of appeal. The first ground is that the Recorder should have imposed a sentence of a detention and training order for a maximum of 24 months, because there was no finding that the offences were "grave crimes". The second ground is that the sentences on all counts were manifestly excessive because inappropriate discount was given to the appellant for his age (being 16 at the time of the offences). The third ground is that insufficient weight was given to the appellant's personal mitigation when the judge fixed sentence.
5. The facts of these offences can be shortly stated. The first two offences, namely having an article with a blade or point and possession of a controlled drug of Class A, were committed on 24
th
May 2017. On that afternoon a police officer was on duty in the area of Farndon Road in Wellingborough. He saw the appellant riding a bicycle and decided to stop and search him, he was initially unsuccessful, as the appellant rode off. He was later stopped in an underpass. He was searched. Within his waistband, the police found a knife inside a sheath, with a blade of six to eight inches in length. A search was carried out at his home address and a wrap of cocaine was found hidden inside a trainer, said to be for his personal use. He was arrested and released on police bail.
6. The third offence of possession of an offensive weapon was committed whilst the appellant as on bail. On 14
th
August 2017 he was searched in the area of Osprey Lane in Wellingborough. Police officers found in his possession a Lucozade bottle containing a concentrated ammonia solution.
7. Offences 4 and 5, namely possession with intent to supply Class A drugs (cocaine and heroin respectively), occurred on 1
st
October 2017. The appellant was in the home address of an older man when the police carried out a search. In the living room of that house the appellant was found to be in possession of 66 individual wraps containing drugs and two further bulk quantities ready for further street dealing. There were 40 individual £10 deals of crack cocaine with 5 grams of bulk cocaine ready for dividing into further deals. There were also 26 wraps of heroin, with 5 grams of further heroin also ready for division into individual wraps. The street value of the drugs was estimated to be in the region of £1,660. A search was also carried out at the appellant's address, where he was living with his girlfriend. £900 was recovered from a box in her bedroom. The appellant's mobile phone contained text messages indicative of involvement in drug dealing.
8. In sentencing the appellant, the Recorder expressly took into account the principles which apply to the sentencing of young people within the Youth Guideline of the Sentencing Council. The Recorder also took into account the fact that the appellant had no previous convictions, the contents of the pre-sentence report dated 9
th
November 2017 and the addendum report dated 11
th
March 2018, which dealt with the effect on the appellant of a period in custody after his breach of bail. Further, the Recorder took into account letters written by and on behalf of the appellant. The Recorder appropriately imposed a global sentence on the two offences of possession of Class A drugs with intent to supply. He imposed concurrent sentences on the other counts, but took them into account in fixing the overall sentence. By this process, a sentence of 36 months' detention was imposed, with concurrent sentences on all other offences. Whilst he did not specifically identify a sentence appropriate for an adult who had pleaded guilty to the same offences, before adjusting for the appellant's age, the Recorder stated that, as an adult, the sentence could have been up to seven years' imprisonment.
9. The first ground of appeal is that the Recorder incorrectly imposed a sentence in excess of 24 months' detention, when there had been no finding by the court of "grave crimes". This ground can be dealt with shortly. The appellant was committed to the crown court for sentence under section 3B of the Powers of Criminal Courts (Sentencing) Act 2000, which provides:
"
3B Committal for sentence on indication of guilty plea by child or young person
(1) This section applies where –
(a)
a person aged under 18 appears or is brought before a magistrates' court ('the court') on an information charging him with an offence mentioned in subsection (1) of section 91 below ('the offence');
(b)
he or his representative indicates under section 24A or (as the case may be) 24B of the Magistrates' Courts Act 1980 (child or young person to indicate intention as to plea in certain cases) that he would plead guilty if the offence were to proceed to trial; and
(c)
proceeding as if section 9(1) of that Act were complied with and he pleaded guilty under it, the court convicts him of the offence.
(2) If the court is of the opinion that –
(a)
the offence; or
(b)
the combination of the offence and one or more offences associated with it, was such that the Crown Court should, in the court's opinion, have power to deal with the offender as if the provisions of section 91(3) below applied, the court may commit him in custody or on bail to the Crown Court for sentence in accordance with section 54(1) below.
(3) Where the court commits a person under subsection (2) above, section 6 below (which enables a magistrates' court, where it commits a person under this section in respect of an offence, also to commit him to the Crown Court to be dealt with in respect of certain other offences) shall apply accordingly."
10. The provisions of section 5A(1) permit the crown court to deal with an offender committed to it under section 3B in any way in which it could deal with him if he had been convicted of the offences on indictment before the crown court. Under section 91(1) and (3) of the 2000 Act, it is provided that:
"
91 Offenders under 18 convicted of certain serious offences: power to detain for specified period
(1) Subsection (3) below applies where a person aged under 18 is convicted on indictment of –
(a)
an offence punishable in the case of a person aged 21 or over with imprisonment for 14 years or more, not being an offence the sentence for which is fixed by law; or
section 29(6) of that Act (exceptional circumstances which justify not imposing the minimum sentence).
…
(3) If the court is of the opinion that neither a youth rehabilitation order nor a detention and training order is suitable, the court may sentence the offender to be detained for such period, not exceeding the maximum term of imprisonment with which the offence is punishable in the case of a person aged 21 or over...”
11. Accordingly, the committal of the appellant by the Youth Court to the Crown Court under section 3B of the 2000 Act was correct for the offences of possession of Class A drugs with intent to supply, being the fourth and fifth offences to which the appellant had pleaded guilty. The remaining offences were also correctly committed to the crown court under section 6 of the 2000 Act, as related offences. In the circumstances, we reject the first ground of appeal.
12. The second and third grounds, namely that the sentences were manifestly excessive and that insufficient weight was given to mitigation, can be taken together. The central point of appeal is that the sentence of 36 months' detention was manifestly excessive for the appellant, who was aged 16 at the time of the offending and without previous convictions. In sentencing the appellant, the Recorder correctly identified the appellant as having a significant role with category 3 harm under the Drugs Offences Guideline for offences of supply. As an adult for Class A offences the starting point, before aggravating and mitigating factors was four and a half years' custody after a trial. The category range was three and a half years to seven years. In imposing a global sentence for all offending, as the Recorder did, allows for an adjustment upwards in the range to take account of the other offences, including the fact that possession with intent to supply involved both cocaine and heroin. It also included the other offences and the fact that he was on bail for some of the offending. For an adult over the age of 18, the sentence after trial, but before discount for the guilty plea, would have been appropriate at seven years' imprisonment. Accordingly, adopting such a starting point as the Recorder appeared to do, of seven years after trial was appropriate for these offences. However, such a sentence requires downward adjustment to reflect personal mitigation. The appellant had no previous convictions and had now spent some time in custody after breaching his bail; also, the contents of the letters written by and on behalf of the appellant were to be taken into account. These mitigating factors serve to reduce the sentence for an adult after trial to one of six years' custody. A discount for the appellant's early pleas of guilty required a further adjustment of one-third, to four years' detention, and a further discount to reflect the fact that he was aged only 16 at the time of the offences. The Recorder correctly had in mind the need to apply a substantial discount to any sentence to reflect the reduced culpability of the appellant by reason of his age.
13. The Sentencing Council Guideline for sentencing children and young people provides for a discount in the region of one-half to two-thirds of the adult sentence for those aged 15 to 17, as a rough guide (see paragraph 6.4(6) of the Guideline). In the circumstances, therefore, the period of four years' detention, after discount for a guilty plea, requires a further discount to two years' detention. It follows, therefore, that a sentence of 36 months' detention was manifestly excessive. Further, since the appellant was aged 17 at the time of sentence, the sentence should have been that of a Detention and Training Order under section 101 of the Powers of Criminal Courts (Sentencing) Act 2000.
14. Accordingly, we quash the sentences of 36 months' detention in a young offender institution for the offences of possession of a Class A drug with intent to supply and substitute for them concurrent sentences of a 24 month Detention and Training Order. The remaining sentences will remain unaffected in their length but will be concurrent sentences of a Detention and Training Order.
15. To that extent, this appeal against sentence is allowed.
Epiq Europe Ltd
hereby certify that the above is an accurate and complete record of the proceedings or part thereof. | {"ConvCourtName": ["Crown Court at Northampton"], "ConvictPleaDate": ["data not available"], "ConvictOffence": ["possession with intent to supply Class A", "having an article with a blade or point", "possession of an offensive weapon", "possession of a controlled drug of Class A"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["data not available"], "PleaPoint": ["data not available"], "RemandDecision": ["arrested and released on police bail."], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Northampton"], "Sentence": ["36 months' detention in a young offender institution.", "eight months' detention", "eighteen months' detention", "36 months' detention"], "SentServe": ["concurrently"], "WhatAncillary": ["data not available"], "OffSex": ["He"], "OffAgeOffence": ["16"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["at his 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": ["stop and search", "mobile phone contained text messages"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["data not available"], "AggFactSent": ["street value of the drugs", "committed whilst the appellant as on bail"], "MitFactSent": ["aged only 16"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence"], "AppealGround": ["insufficient weight was given to the appellant's personal mitigation", "the sentences on all counts were manifestly excessive because inappropriate discount was given to the appellant for his age", "the Recorder should have imposed a sentence of a detention and training order for a maximum of 24 months, because there was no finding that the offences were \"grave crimes\"."], "SentGuideWhich": ["The Sentencing Council Guideline for sentencing children and young people", "section 3B of the Powers of Criminal Courts (Sentencing) Act 2000", "section 101 of the Powers of Criminal Courts (Sentencing) Act 2000.", "Powers of Criminal Courts (Sentencing) Act 2000", "section 1(1) of the Prevention of Crime Act 1953", "section 5(3) of the Misuse of drugs Act 1971", "Drugs Offences Guideline", "section 139(1) of the Criminal Justice Act 1988", "section 5(2) of the Misuse of Drugs Act 1971", "Youth Guideline of the Sentencing Council.", "section 45 of the Youth Justice and Criminal Evidence Act 1999"], "AppealOutcome": ["we quash the sentences of 36 months' detention in a young offender institution for the offences of possession of a Class A drug with intent to supply and substitute for them concurrent sentences of a 24 month Detention and Training Order.", "appeal against sentence is allowed."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["the period of four years' detention, after discount for a guilty plea, requires a further discount to two years' detention. It follows, therefore, that a sentence of 36 months' detention was manifestly excessive."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Crown Court At Northampton"], "ConvictPleaDate": ["Don't know"], "ConvictOffence": ["possession with intent to supply Class A", "possession of an offensive weapon", "possession of a controlled drug of Class A", "having an article with a blade or point"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No"], "PleaPoint": ["data not available"], "RemandDecision": ["Unconditional Bail"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Northampton"], "Sentence": ["36 months' detention in a young offender institution.", "36 months' detention", "eight months' detention", "eighteen months' detention"], "SentServe": ["Concurrently"], "WhatAncillary": ["data not available"], "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": ["Digital evidence", "Police evidence"], "DefEvidTypeTrial": ["data not available"], "PreSentReport": ["Don't know"], "AggFactSent": ["Financial gain/value", "committed whilst the appellant as on bail"], "MitFactSent": ["aged only 16"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence"], "AppealGround": ["insufficient weight was given to the appellant's personal mitigation", "the sentences on all counts were manifestly excessive because inappropriate discount was given to the appellant for his age", "the Recorder should have imposed a sentence of a detention and training order for a maximum of 24 months, because there was no finding that the offences were \"grave crimes\"."], "SentGuideWhich": ["The Sentencing Council Guideline for sentencing children and young people", "section 101 of the Powers of Criminal Courts (Sentencing) Act 2000.", "Drugs Offences Guideline", "section 3B of the Powers of Criminal Courts (Sentencing) Act 2000", "Youth Guideline of the Sentencing Council.", "section 5(3) of the Misuse of drugs Act 1971", "section 1(1) of the Prevention of Crime Act 1953", "section 5(2) of the Misuse of Drugs Act 1971", "section 139(1) of the Criminal Justice Act 1988", "Powers of Criminal Courts (Sentencing) Act 2000", "section 45 of the Youth Justice and Criminal Evidence Act 1999"], "AppealOutcome": ["appeal against sentence is allowed.", "Allowed&Sentence Replaced by More Lenient Sentence"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["the period of four years' detention, after discount for a guilty plea, requires a further discount to two years' detention. It follows, therefore, that a sentence of 36 months' detention was manifestly excessive."], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 32 |
Neutral Citation Number:
[2019] EWCA Crim 2332
No:
201804812/B5/B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Friday, 13 December 2019
B e f o r e
:
LORD JUSTICE SINGH
MR JUSTICE SPENCER
HIS HONOUR JUDGE KATZ QC
(Sitting as a Judge of the CACD)
R E G I N A
v
RAJESHKUMAR MEHTA
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)
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Ms E Laws QC
appeared on behalf of the
Appellant
Ms M Heeley QC
appeared on behalf of the
Crown
J U D G M E N T
(Approved)
1.
LORD JUSTICE SINGH: The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. We shall therefore use initials where appropriate in this judgment.
2.
Introduction
On 6 April 2018, in the Crown Court at Birmingham, the appellant was convicted of one offence of sexual assault which was the subject of count 2 on the indictment. He was acquitted on count 1 which alleged sexual assault in relation to another complainant.
3.
On 27 April 2018 he was sentenced by Her Honour Judge Montgomery to 15 months' imprisonment.
4.
He now appeals against conviction with the leave of the Full Court (comprising Singh LJ, Fraser J and Thornton J DBE) on 11 September 2019, when the court also granted the required extension of time and gave leave to call fresh evidence under
section 23
of the
Criminal Appeal Act 1968
. Leave to appeal was granted on two grounds and not on other grounds which had been raised in the application for leave.
5.
Factual Background
At the relevant time the appellant practised as a general practitioner at the Hill GP surgery in Birmingham. The two counts on the indictment related to two different complainants: count 1, on which the appellant was acquitted, concerned a patient of the surgery itself where the appellant was then working; count 2, on which he was convicted, concerned an unregistered walk-in patient who was seen at the same surgery by him.
6.
On 10 May 2016 the complainant in count 2 (QU) attended the surgery as a walk-in patient. She was seen by the appellant. She said that she had a frozen shoulder and had been suffering from anxiety, shivering and sweating. She said that she left the surgery with a friend (NM) who had accompanied her and that she had collected a prescription.
7.
On 16 May 2016 the complainant attended the surgery and made a complaint about the appellant. She completed a complaint form and made a statement. She also spoke to a female doctor. Her complaint was that she had attended the surgery and had seen the appellant alone. He had her lie on a couch and unbutton her shirt, he had moved her vest and bra aside and had touched her breast. He had then stroked her back in an inappropriate way. Her evidence was that she had seen that the appellant had an erection at the time. She stated that the appellant had also engaged in an inappropriate conversation with her which was sexual in nature. Her report stated that she had attended the surgery with a friend in the morning, whereas the record suggested that she had in fact attended in the evening.
8.
The surgery's internal investigation concluded that the appellant had in fact undertaken a legitimate examination. The complainant had not reported the incident to the police. However, following a report from the complainant in count 1, the police contacted this complainant in December 2016. She then made a formal police statement on 8 December 2016.
9.
In relation to count 1 the complainant alleged that she had attended an appointment with the appellant on 9 May 2016 concerning a back problem. She was wearing full Islamic clothing including a veil. During their appointment the appellant had examined her and placed his hands inside her clothing and squeezed her buttocks. She had not reported the incident at the time. She attended a later appointment in August, when she had complained, and she had been advised to report it to the police.
10.
The prosecution called evidence from the two complainants who gave evidence from behind screens. The complainant's evidence in count 2 was in addition supplemented by evidence called from a female doctor and the medical secretary who had taken a statement at the surgery from QU. The officer in the case produced the appellant's prepared statements given in police interview.
11.
So far as the defence case was concerned, the appellant gave evidence at his trial. He relied upon his good character. He was a general practitioner of 40 years' standing. He could not remember attending the complainant the subject of count 1 but he did give an account of his attendance on the complaint the subject of count 2. The appellant denied that he had touched either complainant as alleged. In respect of count 2, he remembered the appointment. He had taken QU's vitals and examined her in an appropriate way. He diagnosed anxiety and prescribed Diazepam. He had not asked QU to remove clothing nor had he moved her clothing as alleged. He did examine her chest with a stethoscope but that was entirely proper. He denied he had touched her breast, that he had an erection or that he spoke to her about sexual matters.
12.
The defence case relied upon the fact that the complainant had delayed in reporting her complaint.
13.
The issue for the jury at the trial was therefore whether they were sure the appellant had touched the complainant and that the touching was sexual in nature.
14.
Fresh Evidence
The appellant has been given leave by the Full Court, as we have mentioned, to introduce fresh evidence under
section 23
of
the 1968 Act
from first, Mr Nigel Richardson, who is a solicitor who has made a statement dated 18 November 2018. He outlines correspondence with the prosecution to obtain disclosure which has now been received.
Secondly, a report dated 18 August 2018, by Mr Simon Davison, who is a private
investigator, who confirms the complainant first gave incorrect details in relation to her mother-in-law - a topic to which we shall return - and secondly, that she made a signed statement, dated 20 August 2017, in which she had said that her twins had been fathered by NM.
15.
Grounds of Appeal
On behalf of the appellant the following two grounds of appeal are advanced with the leave of the Full Court by Ms Eleanor Laws QC, who did not appear at the trial. She submits that the jury did not hear about two significant matters. First, the complainant had lied on oath before the jury when denying that NM was her boyfriend and was the father of her twins. Secondly, in response to a direction from the court made in the criminal proceedings themselves, the complainant had deliberately misled the court and the parties by providing false contact details for her mother-in-law.
16.
It is argued that this deprived the appellant of the opportunity to adduce and utilise in cross-examination material which was capable of damaging the complainant's credibility; it is further argued that had the defence been aware of these matters they would have requested that the judge should have given a special warning to the jury as to the need for caution in relying upon the evidence of the complainant, QU.
17.
The appellant's submissions in more detail
On behalf of the appellant Ms Laws set out the way in which the prosecution case was presented before the jury, in particular, she emphasises the evidence given by QU at trial was that she had attended the surgery at approximately 10.30 to 11.00 am on the morning of 10 May 2016, after dropping her daughter at college at 9.00 am. In fact she had attended the surgery much later in the day for about 20 minutes, between 17.24 and 17.46 hours. There was an agreed fact (No 4) to this effect which reflected the surgery's own records. Ms Laws submits that QU said in evidence that she had picked up her keys from the table after her examination by the appellant and ran outside forgetting her jacket. She said that the appellant then followed her and gave her her jacket. She did not recall whether she had booked a further appointment. She said that a friend of hers (NM) was waiting for her at the surgery. He asked her what was wrong. She did not tell him at that time what had happened but did tell him later. She said that she obtained her prescription and then went home. She did not go to the police at that time. A day or two later she told her daughter who told her to report it to the surgery.
18.
Ms Laws emphasises that the essential issue at the trial was whether the appellant had touched QU's breast or breasts as alleged with his hands and whether any touching was sexual. The defence case was that he had not touched her breasts as alleged or at all and that such contact as there was was part of a proper examination for diagnostic purposes. Ms Laws submits therefore that the credibility of both the complainant and the appellant was crucial at the trial.
19.
Ms Laws accepts that during the trial the defence were able to and did raise various inconsistencies in the account they said had been given by QU. However, Ms Laws submits there were two matters which were treated at the trial as inconsistencies but which in fact have turned out to be, as she puts it, "nailed on lies".
20.
On behalf of the appellant Ms Laws submits there is an important difference between a mere inconsistency and an established lie. It is submitted that the two matters upon which leave has now been granted and which the jury did not hear about were clear lies. The other matters which were before the jury were inconsistencies and might therefore be capable of "honest" explanation.
21.
In relation to the first ground of appeal Ms Laws points to the transcript of the cross-examination of QU, by counsel who then appeared on behalf of this appellant (page 32B of the transcript) and submits that counsel was unable to pursue the point. In that passage in the transcript for relevant purposes the transcript records the following exchange between counsel and the complainant who was giving evidence:
"Q. And your friend - we've heard reference to his first name [NM is then referred to by name]... A. Yes.
Q. Is it right Mrs [U], that he was in fact more than your friend? Wasn't he your boyfriend?
A. No, he wasn't at the time.
Q. I see because I think you've had children with him since?
A. No.
Q. You haven't?
A. No."
22.
That evidence on oath before the jury can be contrasted, submits Ms Laws, with the signed witness statement made by the complainant in a separate matter on 20 August 2017. That was a statement made under
section 9
of the
Criminal Justice Act 1967
and contained the usual declaration: that the maker of the statement makes it knowing that if it is tendered in evidence they shall be liable to prosecution if they have wilfully stated in it anything which they know to be false or do not believe to be true.
23.
In that statement, on the second page, QU said:
"I am currently pregnant, approximately 17 weeks, with twins. [NM] is the father and he knows that I am pregnant."
24.
It is not accepted by Ms Laws that the jury had the fact of the lie of the father QU's children before them. They had what is described by her as a tangential discrepancy. This came from the fact that the officer in the case, on the day after the complainant had given evidence at the trial, was asked about what the complainant had said to him and he said that she had said that NM was the father of her children.
25.
In relation to the second ground of appeal Ms Laws submits that the trial judge clearly felt that the line of enquiry was sufficiently important that she herself directed that it should be pursued by the officer in the case when an application for disclosure was made some time before the trial on 20 March 2018. Ms Laws submits that QU's lie in giving the wrong details about her apparent mother-in-law effectively stopped those enquiries in their tracks and so created an illegitimate end to the investigation. She submits that the lie told by QU in this regard must be seen within the context of these criminal proceedings. She further submits that the complainant must have known full well why the information was required and therefore subverted the legal process in order to ensure that it was not obtained. Ms Laws submits that the respondent in closing the case before the jury was able to submit that QU had not lied (see page 42G of the transcript) and that she had no motive to lie (see page 43D of the transcript). Further, submits Ms Laws, the judge in her summing-up made no reference to the fact that QU had lied at all. She therefore submits that these two new points of fresh evidence are the only examples of incontrovertible lies which can be shown to be such told by QU. As such they are of a different order to any other inconsistencies in QU's evidence. This would, she submits, have given rise at least to the possibility of the exercise of a discretion on the part of the judge to give a direction in accordance with the judgment of Lord Taylor CJ in
R v Makanjuola
[1995] 3 All ER 730
, at 732-733. The background to that judgment was the fact that the common law was changed by Parliament when it enacted
section 32
of the
Criminal Justice and Public Order Act 1994
, which so far as relevant provided:
"
32 Abolition of corroboration rules.
(1)
Any requirement whereby at a trial on indictment it is obligatory for the court to give the jury a warning about convicting the accused on the uncorroborated evidence of a person merely because that person is—
...
(b) where the offence charged is a sexual offence, the person in respect of whom it is alleged to have been committed
is hereby abrogated ..."
26.
The effect of this legislative change was considered by this court in
Makanjuola
. The relevant principles were summarised in particular at page 733. At page 732H Lord Taylor said:
i.
"The judge will often consider that no special warning is required at all. Where, however the witness has been shown to be unreliable, he or she may consider it necessary to urge caution. In a more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger warning may be thought appropriate and the judge may suggest it would be wise to look for some supporting material before acting on the impugned witness's evidence."
27.
Ms Laws submits that the defence in the present case were deprived of the opportunity to deploy these two lies during the course of the trial. She submits that, on any view, the fresh evidence might reasonably have affected the decision of the jury to convict and for that reason the conviction is unsafe.
28.
In that context Ms Laws reminds this court of the speech of Lord Bingham in
R v Pendleton
[2002] 1 WLR 72
. In
Pendleton
, at paragraph 8, Lord Bingham observed that
section 2
of
the 1968 Act
was substituted by
section 2(1)
of the
Criminal Appeal Act 1995
so as to read as follows:
i.
"(1) Subject to the provisions of
this Act
, the Court of Appeal—
(a)
shall allow an appeal against conviction if they think that the conviction is unsafe; and
(b)
shall dismiss such an appeal in any other case."
29.
At paragraphs 18 to 19 Lord Bingham said the following which needs appropriate adaptation to the present case because he was there talking initially at least about the hearing of oral evidence:
i.
"Where the Court of Appeal has heard oral evidence under
section 23(1)
(c)... the evidence will almost always have appeared, on paper, to be capable of belief and to afford a possible ground for allowing the appeal. By the time the court comes to decide whether the appeal should be allowed or dismissed, it will have heard the evidence, including cross-examination, and any submissions made on its effect. It may then conclude, without doubt, that the evidence cannot be accepted or cannot afford a ground for allowing the appeal... The court may, on the other hand, judge the fresh evidence to be clearly conclusive in favour of allowing the appeal. Such might be the case, for example, if a witness who could not be in any way impeached testified, on oath and after all appropriate warnings, that he alone had committed the crime for which the appellant had been convicted. The more difficult cases are of course those which fall between these extreme ends of the spectrum.
ii.
19. It is undesirable that exercise of the important judgment entrusted to the Court of Appeal by
section 2(1)
of
the 1968 Act
should be constrained by words not to be found in the statute and that adherence to a particular thought process should be required by judicial decision... The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe."
30.
Ms Laws refers also to the judgment of this court in
R v Burridge
[2010] EWCA Crim 2847
, at paragraph 99, where Leveson LJ cited earlier cases, in particular the judgment of the majority in the Privy Council in
Dial v The State of Trinidad and Tobago
[2005] 1 WLR 1660
, at paragraph 31, in a judgment given by Lord Brown (see also paragraph 32 where Lord Brown quoted Judge LJ in
R v Hakala
[2002] EWCA Crim 730
at paragraph 11), where he said that the essential question and ultimately the only question for this court is whether in the light of the fresh evidence "the convictions are unsafe".
31.
In summarising the case law Ms Laws submits that if this court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the appellant it will dismiss the appeal. The primary question is for this court itself and is not what effect the fresh evidence would have had on the mind of the jury. That said, if the court regards the case as a difficult one, it may find it helpful to test its view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict.
32.
The Respondent's Submissions
On behalf of the Crown Ms Michelle Heeley QC makes the following submissions. In relation to the first ground of appeal Ms Heeley submits, in essence, that this ground adds little to the lies about which the jury was already aware at the trial. The jury was directed as to where the burden of proof lay, the judge directed the jury as to how to approach the inconsistency in QU's account and the jury was specifically reminded it was for them to decide whether her evidence was true. The jury were also reminded to assess inconsistencies from QU and that they had to take that into account in assessing her truthfulness, accuracy and reliability. Ms Heeley submits that even without the signed statement of 20 August 2017, the jury had the fact of the complainant's lie about the father of her children before them, through the evidence which was elicited from the officer in the case, DC Rawlings: he gave evidence before the jury that QU had told him that NM was indeed the father of her children.
33.
In relation to the second ground of appeal Ms Heeley accepts that it would appear that QU did give false details as to her mother-in-law. However, she submits given that the jury were told of numerous alleged lies and inconsistencies, adducing this additional evidence would not afford a ground of appeal. By way of example Ms Heeley submits
that the jury were made aware that the complainant (QU) had asserted that she had missed an examination but in fact had to accept that she had sat the exam but had not done as well as she had hoped because of the effects of this incident. Ms Heeley also submits that if the trial had to go into the underlying subject of whether the allegations of abuse made by QU against her husband were true or not, this would have been satellite litigation that could not have been admissible in a trial of what was a relatively straightforward issue, an allegation of sexual assault by this appellant.
34.
Ms Heeley submits that the alleged lie does not go to the central issue in this case. She submits that the jury had a wealth of material with which to assess QU's credibility and that inconsistency was highlighted to them repeatedly both during the evidence and in advocates' speeches.
35.
Analysis
In essence, we accept the submissions made by Ms Laws on behalf of the appellant in relation to both grounds of appeal. In relation to the first ground, this is not a fresh evidence case in the conventional sense. This ground arises from a signed statement made by QU on 20 August 2017 which did exist before the trial took place but it was not available to the defence until some time after the trial had taken place. It is not suggested that the prosecution failed in their duties of disclosure. What is submitted, with force in our view, is that if the statement had been available at the time of the trial the defence would have been able to deploy it in various ways; in fact they were not able to do so because they did not have it at that time. Ms Laws fairly accepts that the statement was not given on oath. Nevertheless, as we have mentioned, it was signed and it was made under
section 9
of
the 1967 Act
with the usual declaration: that the person making the statement is aware of the consequences of making a false statement. The statement would have demonstrated that the evidence which QU gave to the jury about her relationship with NM, and in particular about not having had children with him, was a lie.
36.
Counsel then appearing for the appellant asked two questions, as we have mentioned, about QU's evidence, but in the face of her denials had to move on (see the transcript at page 32 which we have quoted earlier). If he had had access to the signed statement made by QU on 20 August 2017, he would have had the opportunity to use it to suggest to her that she was lying in front of the jury. He might also have been able to make the submission to the jury that there was a reason why QU wished to conceal the true nature of her relationship with NM because it would have a bearing on her evidence about the events of the day on which the offence was alleged to have been committed by this appellant and also the timing of those events including the duration of her examination by this appellant.
37.
In our judgment, Ms Laws is right to submit that there is an important difference between the jury being aware of inconsistencies in accounts which have been given by a complainant and being able to demonstrate that they are actual lies especially when they are made on oath in evidence to the jury.
38.
It is unnecessary to speculate about what further direction the trial judge would have given to the jury, for example, in accordance with the guidance in
Makanjuola
. However, we see force in Ms Laws's submission that the trial judge was deprived of the possibility of exercising her discretion whether to give some warning in accordance with that judgment, even though she was not under any duty to do so.
39.
In relation to the second ground of appeal, again, we accept the essence of the submissions made by Ms Laws.
40.
The particular feature of this aspect of case which disturbs us is that that lie which QU told about her mother-in-law was in the context of enquiries which the trial judge had directed should be made in order to assist the defence against the background of an application for disclosure under
section 8
of the
Criminal Procedure and Investigations Act 1996
. That was the subject of a hearing on 20 March 2018 and was returned to on the first day of the trial (3 April 2018). The context therefore was one in which there was, if perhaps not a formal order of the court, certainly a direction from the judge. As Ms Laws submits the effect of QU's lie was to stop that process of enquiry in its tracks. In our view, it matters not in this context what use might or might not have been made by the defence of the information they should have been provided with. The fact is that they were impeded in the proper preparation of their case and in a way which the trial judge had directed they should have the opportunity to do.
41.
In the circumstances of this case that was not fair. In our view, this would not have entailed unnecessary satellite litigation. It would not have been necessary or appropriate to go into the truth or otherwise of the underlying allegations made by QU against her husband, or whether, for example, the First-tier Tribunal (Immigration and Asylum Chamber) had been right to find that she had been abused by her husband when it allowed her appeal against the refusal of asylum. The important feature of this case is that the complainant lied to the police when they were making enquiries at the direction of the trial judge and that fact was never brought to the attention of the jury.
42.
Conclusion
Having regard, amongst other things to the speech of Lord Bingham in
Pendleton
, in all the circumstances of this case we have reached the conclusion that there were such significant defects in what occurred in this case both before and at the trial that the conviction cannot be regarded as safe.
43.
Accordingly, the appeal will be allowed and this conviction quashed.
44.
MS HEELEY: My Lord I do not seek a retrial.
45.
LORD JUSTICE SINGH: Very good. Is there anything else?
46.
MS LAWS: Just one thing. The appellant was, after conviction in fact, ever after privately paying. He is not, he knows, entitled to his legal costs but there are considerable expenses in relation to the instruction of the investigators who in fact unearthed one of the lies, which is one of the grounds that has been successful, and also obtaining of the transcripts which were clearly part and parcel of our submissions. I wonder if the court would be minded to find that expenses related to the transcripts and investigators would be something that the court would grant the appellant subject to –
47.
LORD JUSTICE SINGH: Has this been put in writing at all?
48.
MS LAWS: Not yet, no. We can do. The categorisation of this material clearly it is quite separate to legal representation.
49.
LORD JUSTICE SINGH: I understand that.
50.
MS LAWS: We can certainly put it in writing.
51.
(The Bench Conferred with the Registrar)
52.
LORD JUSTICE SINGH: I think you will have to make the application in writing.
53.
MS LAWS: Very well.
54.
LORD JUSTICE SINGH: If it is possible I will deal with it. If it is not, then we will deal with it collectively but we can deal with it without need for further hearing. Is there anything else?
55.
MS LAWS: Thank you.
56.
LORD JUSTICE SINGH: Can I thank both counsel and those instructing them for the assistance they have given the court.
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
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IN THE COURT OF APPEAL
CRIMINAL DIVISION
NCN:
[2021] EWCA Crim 1922
No. 202100407 A1
Royal Courts of Justice
Thursday, 4 November 2021
Before:
LORD JUSTICE POPPLEWELL
MR JUSTICE SPENCER
HIS HONOUR JUDGE KEARL QC RECORDER OF LEEDS
REGINA
V
JOHN JAMES LUNDY
__________
Computer-aided Transcript prepared from the Stenographic Notes of
Opus 2 International Ltd.
Official Court Reporters and Audio Transcribers
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[email protected]
_________
MR L. R. O’BRIEN
appeared on behalf of the Appellant.
MR P. ROONEY
appeared on behalf of the Respondent.
_________
JUDGMENT
LORD JUSTICE POPPLEWELL:
1
On 7 January 2021, in the Crown Court at Newcastle upon Tyne, the appellant was sentenced by Mr Recorder Sandiford QC for two offences to which he had pleaded guilty on 23 September 2020. For an offence of wounding with intent, contrary to
s.18
of
the Offences Against the Person Act 1861
, he was sentenced to life imprisonment, with a minimum term of six years, less 200 days spent on remand and to a Hospital and Limitation Direction under
s.45
A of the
Mental Health Act 1983
. An order in this form is sometimes referred to as a hybrid order. For the other offence of assault on an emergency worker, contrary to
s.1
of the
Assaults on Emergency Workers (Offences) Act 2018
, he was sentenced to a concurrent term of six months' imprisonment. He appeals against sentence with leave of the single judge limited to the question of whether a determinate or extended sentence should have been imposed rather than a life sentence. He was refused leave on the additional ground advanced that a s.37 Hospital Order, coupled with a s.41 direction, should have been imposed, rather than a hybrid
s.45
A order, and that ground is not renewed.
2
The circumstances of the offences were these. On the 26 October 2019 the appellant was an in-patient at St George's Hospital, having been detained under the
Mental Health Act 1983
. His detention was as a result of his diagnosis of paranoid schizophrenia. The victim, Mr Tonkin, was on duty as a nursing assistant and was in the kitchen when the appellant entered carrying a metal walking stick and said to him "I've come to get you". The appellant then turned to another member of staff and said "Sarah, don't get involved. What I'm going to do to him I will go down for at least six years." The appellant then lunged at Mr Tonkin, raising the metal walking stick and hit Mr Tonkin hard with it to his upper left arm. A scuffle ensued and both men fell to the floor. The appellant bit Mr Tonkin's back. That ripped his clothing but did not make contact with his skin. Other staff members pulled the appellant away and took him to a seclusion room where he remained until the police arrived. As a result of the assault, Mr Tonkin suffered bruising to his left upper arm and a pulled a muscle in his neck.
3
On 16 June 2020, at approximately 6.45 in the evening, Mark Robinson and his partner, Deborah Morton, were walking their dogs in Alnwick Pastures next to Alnwick Castle. The appellant, who was unknown to them, walked towards them and stepped into Mr Robinson's path. The appellant pulled a military-style knife with a three inch blade from his pocket and said words to the effect of "This will teach you" or "I'm going to have you". Mr Robinson shouted to his partner to run, and himself retreated from the appellant who followed him. The appellant then started to turn his attention to Ms Morton. With conspicuous bravery, Mr Robinson placed himself between the appellant and Ms Morton in order to protect her. The appellant lunged at Mr Robinson with a knife, as a result of which he fell backwards. The appellant jumped on him and stabbed him in the chest. The appellant tried to stab him again three or four times to the body, but Mr Robinson overpowered him and the appellant backed off and, ultimately, walked away. Mr Robinson sustained a stab wound to the left-hand side of his chest which punctured his lung. Blood was spurting from this wound in his chest. Others in the area came to assist him and Ms Morton in their attempts to stem the flow. So serious was the injury that an air ambulance was called, but because of a change in weather conditions Mr Robinson had to be taken to hospital by road.
4
Meanwhile, the appellant threw the knife into the river and then telephoned his mother and told her that he had stabbed someone. He resisted arrest, charging at one police officer and taking him to the floor before being overwhelmed. He refused to be interviewed, becoming aggressive with the appropriate adult and refusing to believe that the legal representative who attended was in fact a legal representative.
5
The Victim Personal Statements from both Mr Robinson and Ms Morton set out in detail the devastating effect which the attack had upon both of them. So far as Mr Robinson was concerned, it had a truly life changing effect, causing him severe psychological harm, as well as continuing physical symptoms. In Ms Morton's case, the adverse psychological effect was significant.
6
At the time the appellant entered his guilty pleas, a report addressing his mental health had been prepared by Dr Turner, a forensic consultant psychiatrist. The report stated that the appellant was suffering from a mental disorder in the form of schizophrenia, which carried a significant risk to others, and which was of a nature and degree as to make it appropriate for him to be detained in hospital for treatment. The report concluded with Dr Turner recommending that consideration be given to the imposition of a hospital order under s.37 of the Mental Health Act with a restriction set out in
s.41
of
the Act
.
7
In order to provide the court with the option to impose such an order, the proceedings were adjourned for a further report to be prepared by a second psychiatrist, Dr Moore. Like Dr Turner, Dr Moore was of the view that the appellant was suffering from schizophrenia and that this was of such a nature and degree that he should be detained in hospital for treatment. He too recommended the imposition of a hospital order with restrictions pursuant to
s.37
and
s.41
of
the Act
. Dr Moore gave oral evidence to the same effect at the sentencing hearing.
8
The Recorder's sentencing remarks were detailed, well-structured and clearly reasoned. He first recited the circumstances of the two offences, observing that there were features of each which showed that despite the appellant's mental disorder he was aware of his actions and able to exercise choice and control over them, and which demonstrated that he was aware at that time of the criminal nature of his wrongdoing. In relation to the attack on Mr Robinson in particular, the Recorder observed that the appellant had later told Dr Moore that he, the appellant, had thought that Mr Robinson was his father whom the appellant had wanted to attack, but that when he realised that he had misidentified him after stabbing him, he desisted and it was for that reason that he ran away. The Recorder identified that disposing of the knife in the river and confessing to his parents showed an awareness of his wrongdoing.
9
The Recorder then set out the history of mental illness and aggressive and violent behaviour which was demonstrated by the appellant's previous convictions and by his extensive medical records. In the light of the issue in this appeal, we think it right to set out in full the Recorder's accurate summary of the evidence which was before him:
"I turn then to your antecedent history which in your case consists both of your previous convictions and also the history of violence disclosed by your medical records. In summary those two documents provide evidence of a number of occasions when you have used or armed yourself ready to use or threaten violence against others, and those in my judgment are relevant both to the question of culpability and of risk.
In terms of previous convictions, on 30 August 2014, you were involved in an incident whereby you took a garden spade and used it to hit a neighbour twice in the head causing a wound. Somewhat surprisingly, given that description of events, you were convicted or charged with, and pleaded guilty to, only an offence of s.20 wounding, in other words unlawful wounding without intent, and an offence of having an offensive weapon, for which you were dealt with by the court on 9 December 2014.
On 23 January 2018, at the Northumbria Specialist Emergency Care Hospital A&E Department, you had been admitted or had attended, and you attempted to punch a nurse and threatened to stab her, and then you assaulted a security guard when you were asked to leave and you were dealt with for those offences by the court on 8 February 2018.
Turning to the incidents recorded in your medical records. First of all, in June 2005, the medical records record an incident involving some builders and a van. You formed, no doubt because of your mental disorder, the view that they had made some derogatory comments towards you. Your response to that was to tear the leg off a table and return with the intention of attacking them. When they retreated you contented yourself with smashing up their van and then chased one of them, but you were intercepted and restrained by the police before fortunately you could catch him. The consultant at the time observed that it was of great concern that you had engaged in a premeditated attack, albeit that it appeared to be driven by paranoid delusions and possibly auditory hallucinations, and he opined that if you had not been restrained by the police you would have seriously assaulted one or more of the men. For your part you described yourself as being a shy person at that stage who was capable of committing a serious crime under the influence of alcohol. There is also reference, around the same period of time, to you being intoxicated and threatening to blow people up by making homemade bombs and also an incident in which you had held a knife to your next door neighbour. In any event, by that time at the latest, it was recognised that you were suffering from schizophrenia and that you needed to take regular antipsychotic medication, and indeed that depot administration of that medication should be considered at that time.
The next incident of note is in 2008. In May you were admitted as an inpatient into hospital following an incident in which you had armed yourself with a knife to go out looking for a man who you thought had been spiking your drinks. Again, that appears to have been a delusional belief emanating from your mental disorder, but nevertheless one which you chose to act on in a criminal fashion.
[...]
However, what is significant in my judgment is that the records record that you said that you approached the man but then desisted when you saw what you thought was a plain clothes police officer and an ambulance in the vicinity. Again, those are significant matters in my judgment, because the fact that you desisted when you thought a policeman was nearby provides further support for the conclusion that notwithstanding your mental disorder you know what you are doing is wrong and you are able to exercise choice and control over your actions, and so when you realised a policeman was nearby you chose not to continue because you realised of course that that might result in your arrest and no doubt punishment. So that was May/June of 2008.
There is then a period so far as your medical records are concerned of relatively stability where you had a series of reviews from about the end of November, at the end of 2009 through to about 2013 where no incidents are recorded. However, to as it were keep the chronology, I remind myself that there was of course the incident in August of 2014 which led to your appearance before the Crown Court in December of 2014. But we move forward to January of 2018, another occasion when you had stopped receiving your depot medication and the medical notes record, it was noted that, 'Last week he lost his temper, pulled a knife on his', and it is redacted in the records or in Doctor Turner's report, but I am satisfied from other material I have read that would appear to be your father. You kicked a hole in the door and police came out, and it was noted that your psychosis and depressive symptoms had relaxed and that you were not very well at that stage.
In February, the next month, you reported having taken a box of paracetamol and then pulling a knife on a doctor and there having been a fight with three security guards. That appears to be a reference to the incident that led to your conviction in February of 2018 for offences in January 2018.
[...]
A few days later, 9 February, there was noted to have been a rapid improvement in your condition, Mr Lundy, when you had started to take antipsychotic medication, and the medical records noted that your mood had improved, there were no clear signs of psychosis, no suicidal ideations and no aggressive thoughts towards others, and in my judgment this is a feature of your medical records, that when you start to take the antipsychotic medication you recover relatively quickly. However, what is equally clear is that when you stop to take it there are an equally rapid deterioration, which is what happened, because that was 9 February. By 9 March 2018, so only four weeks later, you had deteriorated to the point that you were detained at St George's Hospital and remained there for a number of weeks until 25 April. At the point of admission you were describing paranoid delusions, getting messages from the TV about things that were said to have happened to you, your father and also your drinks being spiked, and it was noted again that you improved rapidly when antipsychotic medication was increased.
So that was the admission to 25 April 2018, but you were released from, or discharged from hospital on 25 April. By 9 July of 2018 you were detained again, this time under s.136 of the Mental Health Act. This followed an incident where you went to a property with a sledgehammer and a retractable knife with a view to killing the occupant. You said that you had received a message from your television set to do this because the person was a heroin dealer and responsible for causing brain damage to you. That was clearly a severe psychotic episode with you hearing voices ordering you to kill. I observe that that is not a feature of either of the attacks for which I have to sentence you, and in particular it is not a feature of the attack on Mr Robinson in June 2020, and so that appears to have been a more severe psychotic episode on that occasion.
In any event you were admitted to St George's Hospital between 9 July and 7 August. It was noted of course that there had been a clear deterioration in your mental state and you were at risk of self-harm, harm to others driven by this relapse, and it was noted that you had a history of violence and aggression, weapon carrying and a history of violence and aggression towards others.
By 7 August, so less than a month later, your depot medication had been accepted by you again and your condition had improved, and you were discharged, and it was observed that you had demonstrated good insight into your pre-admission state and your current mental state, 'And he said the relapse was due to no efficacy of his prescribed antipsychotic medication', in other words you were saying that you had recognised that your medication had not been working, and so you appeared at that point at least to have insight into your condition. However, by 28 November of the same year, so about three and a half months later, you had deteriorated again. You were describing relatives being in the television set and you had purchased petrol and had thoughts of harming people using that petrol, and it was noted at that stage that you had delusional beliefs and you were hearing voices from the television telling you to kill yourself.
Well, that was 28 November. A short time later in December you were reviewed again by the consultant psychiatrist who noted that your delusional ideas were still held but with less intensity, and this was said to be concordant with medication, so in other words you were cooperating with taking your medication, and you had good insight into your mental state such that the risks to others were reduced, and so again another example in my judgment of you making a fairly rapid recovery. But by 29 January, so the next month, you had stopped taking your medication again, you were suffering from delusional persecutory beliefs and as a result you were carrying a knife and a crowbar for protection.
On 1 February 2019 you were again an inpatient in hospital until 25 March. It was noted that you had been refusing your medication and that when you relapsed in this way you had delusional thoughts such as thoughts to kill your parents. A crowbar was recovered from your house and you suggested to the doctors that you had it because you wanted to use it on the community psychiatric nurse. Well, by 25 March your antipsychotic medication had started, you presented as much better, and you were discharged from hospital.
We then move forward to October of 2019. The mental health team attended to administer your depot medication, in other words an injection of your antipsychotic medication, but you were found to be acutely psychotic, you were making threats to harm your father, you had no insight into your condition and displayed a number of persecutory delusions, and as a result of that you were detained in St George's Hospital from 3 October until 14 January 2020. It was during that period that you committed the first offence for which I have to sentence you the assault on an emergency worker. During that period it was noted that you said that you did not need your medication as you were not mentally ill. You disagreed with your diagnosis and you said that if you had to kill someone to go to jail to prove that you were not schizophrenic then that is what you would do, which again in my judgment shows notwithstanding your mental disorder and the way it affects your thinking, you understand that attacking and killing other people is wrong and would result in you being sent to prison."
10
The Recorder next referred to the conclusions in the reports of Dr Turner and Dr Moore. Both agreed that the appellant had for some years been suffering from schizophrenia. Dr Turner concluded that he had suffered from schizophrenia since 2005. Dr Moore also offered the opinion that there was evidence of a second mental disorder, namely a recurrent depressive disorder. The Recorder observed that the history was characterised by periods of recovery, interspersed with periods of deterioration, often when the appellant failed to take his medication and, in those circumstances, the deterioration into violent and dangerous behaviour was very rapid. The failure to take his medication was only in part due to his mental health condition, but was also because he did not like the side effects and because he did not think he was unwell. The Recorder said that he therefore had some responsibility for his failure to take his medication and failure to manage his condition.
11
The Recorder next identified that he should adopt the structured approach identified at para.34 of
R v Edwards
[2018] EWCA Crim 595
; [2018] Cr App R(S) 17, referring also to the decision of this court in
R v Fisher
[2019] EWCA Crim 1066
. He concluded that this was a case in which a
s.37
hospital order with a
s.41
direction might be imposed, and that that conclusion meant that he must go on next to determine whether a
s.45
A hybrid order should be imposed. He said that in determining whether a
s.45
A order might be more appropriate than a
s.37
/
s.41
hospital order, he needed to address the appropriate custodial sentence for the offences. Applying the Sentencing Council Guidelines, he determined that if a determinate sentence were to be imposed, the total term of imprisonment would be nine years, comprising eight years and eight months for the
s.18
offence and a consecutive four months for the emergency worker assault. That reflected the diminished culpability arising from the appellant's mental illness, and a full one-third discount credit for plea, but for which, he said, the
s.18
offence would itself have warranted a sentence after trial of 15 years.
12
The Recorder next addressed the question of dangerousness, so as to consider whether if he were to impose a custodial sentence as part of a
s.45
A order, he would have to consider an extended sentence under
s.226
A of the
Criminal Justice Act 2003
or a discretionary life sentence under
s.225
of
that Act
. He concluded that the appellant was dangerous within the statutory definition of that term in
s.280(1)
(c) of
the Act
. In reaching that conclusion, he relied not only on the nature of these offences, but also on the history of aggression and violence revealed by the medical records and previous convictions, and additionally on the views of both Dr Turner and Dr Moore that he posed a high risk of serious harm to the public. Dr Turner's risk assessment was that if he offended again it was likely to be in the context of persecutory delusions involving an assault with a weapon either against professionals involved in his care or against his father or against a member of the public resulting in serious harm. That conclusion was in our view inevitable and it had been conceded in the sentencing hearing before the Recorder that the appellant satisfied the definition of dangerousness. We would ourselves emphasise that the risk to members of the public which was disclosed by all this material was a very grave risk of very grave harm.
13
The Recorder turned next to the guidance in
Attorney General's Reference (No.27 of 2013)
R v Burinskas
[2014] EWCA Crim 334
; [2014] Crim App R (
S) 45
in relation to discretionary life sentences for dangerous offenders and, in particular, para.22 of the judgment in that case in which Lord Thomas CJ said:
"In our judgment, taking into account the law prior to the coming into force of the
CJA 2003
and the whole of the new statutory provisions, the question in
s.225(2)
(b) as to whether the seriousness of the offence (or of the offence and one or more offences associated with it) is such as to justify a life sentence requires consideration of:-
i) The seriousness of the offence itself, on its own or with other offences associated with it in accordance with the provisions of s.143(1). This is always a matter for the judgment of the court.
ii) The defendant's previous convictions (in accordance with s.143(2)).
iii) The level of danger to the public posed by the defendant and whether there is a reliable estimate of the length of time he will remain a danger.
iv) The available alternative sentences."
14
As to (i) the Recorder said that the
s.18
offence involved the infliction of a serious and dangerous wound with devastating effect and was a most serious offence of its type and kind. As to (ii) he took into account the s.20 conviction involving the dangerous act of hitting a person in the head with a spade twice, and the assault on medical staff in January 2018 with a threat to stab. As to (iii) the Recorder said this:
"In my judgment you pose a grave danger to the public and you have done so over a number of years when your schizophrenia has gone unmedicated. That has now happened on a number of occasions spread over a period of fifteen years. In my judgement there can be no reliable estimate of the length of time for which you will remain a danger since it depends not only on you complying with your treatment but also keeping up with your medication and you have now demonstrated over a period of time that that is something that you are unable to do, and that even if there comes a point when you can be safely released into the community there will remain the risk that you will stop taking your medication or stop cooperating with it and you will commit further offences. Your medical records and your behaviour shows, in my judgement, that your condition can change rapidly and can relapse even after a relatively long period of apparent stability and insight on the one hand, and on the other can deteriorate very quickly and result in you becoming dangerously prone to offences of violence.
I also have to look and consider the other available alternative sentences and consider whether they would meet the risks that you pose. In my judgment an extended sentence under
s.226
A would not meet the risk that you pose because of the psychiatric history and the history of recovery and relapse which I have just outlined. There is no guarantee that at the end of a period of an extended sentence that the position would not remain the same as it remains today. For the same reasons a determinate sentence of imprisonment would not be adequate to protect the public and in the end I am driven to the conclusion that if a custodial sentence is to be imposed in your case, only an indeterminate sentence, a life sentence, would protect the public against the risk that you would pose and that you will continue to pose into the foreseeable future, even if treatment in the short or medium term is successful. In my judgment a life sentence, an indeterminate sentence under
s.225
would enable the Parole Board to ensure that the risk posed by you is sufficiently reduced to enable your release and could thereafter be monitored to ensure public safety."
15
The Recorder then addressed the question of whether a
s.37
/
s.41
order should be made or a hybrid
s.45
A order, and concluded that the latter was appropriate. The Recorder did not regard the differences between the release provisions as sufficient reason to deflect him from passing a sentence that contained a penal element to reflect the appellant's significant responsibility and culpability in this case. He accordingly passed the custodial sentences which we have already described and directed that in respect of both offences under the provisions of
s.45
A the criteria for a hospital order were met and that the appellant would be subject to the special restrictions set out in
s.41
of
the Act
without limit of time.
16
On behalf of the appellant Mr O'Brien argued in his written grounds, and orally before us, that the imposition of a life sentence exposed the appellant to the risk of being recalled to prison upon committing a minor offence at a time when his mental health conditions were being properly managed and under control, and was manifestly excessive.
17
We are unable to accept this submission. The provisions of the
Criminal Justice Act 2003
were applicable in this case because the conviction occurred prior to 1 December 2020, after which the
Sentencing Act 2020
would have applied. The available alternatives for a custodial sentence under
s.45
A were (1) a simple determinate sentence; (2) an extended sentence under
s.226
A of
the Act
, in which the extended period of licence could have been for a maximum period of five years or (3) a discretionary life sentence pursuant to
s.225
of
the 2003 Act
.
18
Section 225
provides as follows:
"Restriction on consecutive sentences for released prisoners
(1) A court sentencing a person to a relevant custodial term may not order or direct that the term is to commence on the expiry of any current custodial sentence from which the offender has been released under—
(a) Chapter 6 of Part 12 of the
Criminal Justice Act 2003
(release, licences, supervision and recall), or
(b) Part 2 of the
Criminal Justice Act 1991
(early release of prisoners).
(2) In this section 'relevant custodial term' means a term of—
(a) detention under Chapter 2 of this Part,
(b) detention in a young offender institution (under this Code), or
(c) imprisonment.
(3) In this section, 'current custodial sentence' means a sentence that has not yet expired which is—
(a) a sentence of imprisonment,
(b) a sentence of detention in a young offender institution, or
(c) a sentence of detention imposed under any of the following—
(i) section 250,
(ii) section 254 (including one passed as a result of
section 221
A of the
Armed Forces Act 2006
),
(iii)
section 226
B or 228 of the
Criminal Justice Act 2003
(including one passed as a result of
section 221
A or 222 of the
Armed Forces Act 2006
),
(iv)
section 91
of the
Powers of Criminal Courts (Sentencing) Act 2000
,
(v)
section 53(3)
of the
Children and Young Persons Act 1933
,
(vi)
section 209
of the
Armed Forces Act 2006
, or
(vii)
section 71
A(4) of the
Army Act 1955
or the
Air Force Act 1955
or
section 43
A(4) of the
Naval Discipline Act 1957
."
19
We would make two observations. First, as this court said in
Edwards
at para.10, where the sentencing judge is satisfied that an offender is dangerous and that the two conditions in
s.225(2)
(a) and (b) are met, he
must
impose a life sentence. There is no discretion.
20
Secondly, although the court must have regard to rehabilitation of the offender, and to the culpability of the offender, it is inherent in the terms of
s.225
itself, and its application to dangerous offenders, that it is the protection of the public which should be at the forefront of the consideration of whether to impose a life sentence rather than a determinate or extended sentence. As this court said at para.12 in
Edwards
:
"... the graver the offence and the greater the risk to the public on release of the offender, the greater emphasis the judge must place upon the protection of the public and the release regime."
21
In that case the court also explained the effect of a
s.45
A order on a determinate and indeterminate sentence at paras. 7 to 10 (which is also reflected in the Sentencing Council Guideline for sentencing offenders with mental health disorders, developmental disorders or neurological impairments):
"Determinate sentences
7. If a
s.45
A patient’s health improves so that his responsible clinician or the Tribunal notifies the Secretary of State ('SoS') that he no longer requires treatment in hospital under the MHA, the SoS will generally remit the patient to prison under section 50(1) of the MHA to serve the rest of his sentence. On arrival in prison, the
s.45
A order would cease to have effect and the offender would be released from prison in the usual way.
8. If there has been no improvement at the automatic release date, the limitation direction aspect of
s.45
A falls away. At that point, the patient remains in hospital but is treated as though they are subject to an unrestricted hospital order so that the point at which he is discharged from hospital is a matter for the clinicians, with no input from the SoS.
Indeterminate sentences
9. If a
s.45
A patient’s health improves such that his responsible clinician or the Tribunal notifies the SoS that he no longer requires treatment in hospital under the MHA, the SoS will generally remit the patient to prison under section 50(1) MHA. On arrival in prison, the
s.45
A order would cease to have any effect whatsoever. Release would be considered by the Parole Board in the usual way.
10. If a
s.45
A patient has passed their tariff date and the Tribunal then notified the SoS that he is ready for conditional discharge, the SoS could notify the Tribunal that he should be so discharged (section 74(2)). In that case, the offender would be subject to mental health supervision and recall in the usual way. However, the SoS would, in practice, refer the offender to the Parole Board."
22
For this appellant, the relevant difference between the three alternatives of a determinate, extended or life sentence, is the length of time for which he will be on licence following release from custody, assuming that the responsible clinician or Mental Health Tribunal has taken the view before the expiry of the minimum custodial term of six years in each case that the appellant no longer requires hospitalisation to treat his mental disorder. Additionally in the case of a life sentence it also affects whether his release is automatic or subject to the control of the Parole Board:
(1) A determinate sentence of nine years would involve automatic release after six years and a licence period of three years thereafter.
(2) An extended licence would involve automatic release after six years and a licence period thereafter of up to a maximum of eight years.
(3) A life sentence would involve eligibility for release after six years but release would be subject to a Parole Board assessment as to the dangers which the appellant would pose if released into the community, and it would further involve a lifetime on licence.
23
In each of those alternatives the licence conditions for the period during which the appellant would remain subject to licence would be such as would seek to ensure the supervision and management of the appellant in the community and, in particular, supervision and management of his mental health condition and medication and treatment to keep that under control, so as to prevent or minimise his risk of serious harm to the public. The difference lies in the periods for which that supervision and management would last, as well as in the initial decision as to whether any release into the community would, in the view of Parole Board, constitute an unacceptable risk to the public.
24
For the reasons explained by the Recorder, the important sentencing purpose of protection of the public reflected in
s.142
(d) of
the 2003 Act
dictates that there should be an ability to exercise supervision and management over the appellant and his medical treatment in the community for the remainder of his life, even if it were the case that after six years the view could properly be taken that the protection of the public could adequately be achieved by his management in the community. The appellant's schizophrenic history has lasted for some 15 years and without medication, which he has sporadically but regularly failed to take, and without properly submitting to the medical treatment to which he needs to commit himself, there has resulted a high risk of serious harm to the public. There is no reason to believe that that is a risk which will have disappeared in 14 years' time, which would be when he would be free from licence conditions if the maximum available extended sentence under
s.226
A were imposed.
25
Balanced against this, his risk of recall for a minor offence lasting for his whole life carries little if any weight for at least three reasons. First, if the
s.225(2)
conditions are satisfied, a life sentence is mandatory; there is no discretion. Secondly, the paramount consideration in a case of this sort is the protection of the public from harm. Thirdly, whilst recall on licence for a minor offence is theoretically possible, it is by no means inevitable; the decision whether or not to recall an offender to prison on licence involves a discretionary assessment of whether the offending is sufficiently serious to justify recall; and even if recalled, the Parole Board can ensure release if there were no risk to the public or none which could not adequately be managed in the community with the benefit of the powers which go with his being on licence. In addition, a life sentence provides this important additional protection for the public. If at the end of six years the appellant's condition were such that he remained a danger to the public which could not adequately be managed in the community, a life sentence would ensure the protection of the public, because the Parole Board would not release him at that stage. In the event of a determinate or extended sentence being passed, there would not be that protection; release would be automatic.
26
For all those reasons the appeal will be dismissed. In conclusion we wish specifically to commend the exemplary sentencing remarks of the Recorder, which we regard as faultless.
__________ | {"ConvCourtName": ["Crown Court at Newcastle upon Tyne"], "ConvictPleaDate": ["23 September 2020"], "ConvictOffence": ["wounding with intent"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["200 days spent on remand"], "RemandCustodyTime": ["200 days"], "SentCourtName": ["Crown Court at Newcastle upon Tyne"], "Sentence": ["life imprisonment, with a minimum term of six years, less 200 days spent on remand and to a Hospital and Limitation Direction"], "SentServe": ["concurrent", "concurrent term of six months' imprisonment"], "WhatAncillary": ["Hospital and Limitation Direction"], "OffSex": ["he"], "OffAgeOffence": ["data not available"], "OffJobOffence": ["data not available"], "OffHomeOffence": ["appellant was an in-patient at St George's Hospital, having been detained"], "OffMentalOffence": ["diagnosis of paranoid schizophrenia"], "OffIntoxOffence": ["data not available"], "OffVicRelation": ["on duty as a nursing assistant"], "VictimType": ["an emergency worker"], "VicNum": ["Mark Robinson and his partner, Deborah Morton,", "on an emergency worker"], "VicSex": ["Mr Robinson and Ms Morton"], "VicAgeOffence": ["data not available"], "VicJobOffence": ["an emergency worker"], "VicHomeOffence": ["data not available"], "VicMentalOffence": ["data not available"], "VicIntoxOffence": ["data not available"], "ProsEvidTypeTrial": ["The Victim Personal Statements"], "DefEvidTypeTrial": ["Dr Turner, a forensic consultant psychiatrist."], "PreSentReport": ["data not available"], "AggFactSent": ["aggressive and violent", "disposing of the knife", "adverse psychological effect", "previous convictions"], "MitFactSent": ["mental health"], "VicImpactStatement": ["The Victim Personal Statements"], "Appellant": ["appellant"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence"], "AppealGround": ["whether a determinate or extended sentence should have been imposed rather than a life sentence."], "SentGuideWhich": ["s.45A of the Mental Health Act 1983", "s.18 of the Offences Against the Person Act 1861", "Sentencing Act 2020", "s.1 of the Assaults on Emergency Workers (Offences) Act 2018", "Criminal Justice Act 2003", "Sentencing Council Guidelines"], "AppealOutcome": ["appeal will be dismissed"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["the exemplary sentencing remarks of the Recorder, which we regard as faultless.", "there should be an ability to exercise supervision and management over the appellant and his medical treatment in the community for the remainder of his life"]} | {"ConvCourtName": ["Crown Court At Newcastle Upon Tyne"], "ConvictPleaDate": ["2020-09-23"], "ConvictOffence": ["wounding with intent"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["No", "Yes"], "PleaPoint": ["data not available"], "RemandDecision": ["Remanded into custody"], "RemandCustodyTime": ["200 days"], "SentCourtName": ["Crown Court At Newcastle Upon Tyne"], "Sentence": ["life imprisonment, with a minimum term of six years, less 200 days spent on remand and to a Hospital and Limitation Direction"], "SentServe": ["Concurrent", "Concurrent"], "WhatAncillary": ["Hospital and Limitation Direction"], "OffSex": ["All Male"], "OffAgeOffence": ["Don't know"], "OffJobOffence": ["Don't know"], "OffHomeOffence": ["Sectioned"], "OffMentalOffence": ["Had mental health problems"], "OffIntoxOffence": ["Don't know"], "OffVicRelation": ["Acquaintance"], "VictimType": ["Individual person"], "VicNum": ["1 of 3", "2 of 3"], "VicSex": ["Mixed"], "VicAgeOffence": ["Don't know"], "VicJobOffence": ["Employed"], "VicHomeOffence": ["Don't Know"], "VicMentalOffence": ["Don't know"], "VicIntoxOffence": ["Don't know"], "ProsEvidTypeTrial": ["Victim testimony"], "DefEvidTypeTrial": ["Dr Turner, a forensic consultant psychiatrist."], "PreSentReport": ["Don't know"], "AggFactSent": ["aggressive and violent", "previous convictions", "disposing of the knife", "adverse psychological effect"], "MitFactSent": ["mental health"], "VicImpactStatement": ["Yes"], "Appellant": ["Offender"], "CoDefAccNum": ["data not available"], "AppealAgainst": ["against sentence"], "AppealGround": ["whether a determinate or extended sentence should have been imposed rather than a life sentence."], "SentGuideWhich": ["Sentencing Act 2020", "Criminal Justice Act 2003", "Sentencing Council Guidelines", "s.1 of the Assaults on Emergency Workers (Offences) Act 2018", "s.45A of the Mental Health Act 1983", "s.18 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": ["the exemplary sentencing remarks of the Recorder, which we regard as faultless.", "there should be an ability to exercise supervision and management over the appellant and his medical treatment in the community for the remainder of his life"]} | 134 |
Case No:
201403127 B5
Neutral Citation Number:
[2015] EWCA Crim 305
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
HIS HONOUR JUDGE LORRAINE-SMITH
T20117675
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
06/03/2015
Before :
LORD JUSTICE JACKSON
MR JUSTICE MITTING
and
MR JUSTICE JAY
- - - - - - - - - - - - - - - - - - - - -
Between :
REGINA
Respondent
- and -
LODVIK GURAJ
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Ms Kitty St Aubyn
(instructed by
Faradays Solicitors
) for the
Appellant
Mr Edward Franklin
(instructed by
The Crown Prosecution Service
) for the
Respondent
Hearing date: 6
th
February 2015
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Jackson
(delivering the judgment of the court):
1.
This judgment is in five parts, namely:
Part 1. Introduction
Paragraphs 2 to 7
Part 2. The facts
Paragraphs 8 to 20
Part 3. The appeal to the Court of Appeal
Paragraphs 21 to 25
Part 4. The law
Paragraphs 26 to 49
Part 5. Decision
Paragraphs 50 to 59
Part 1. Introduction
2.
This is an appeal by a criminal against an order for confiscation on the grounds of serious non-compliance by the prosecution with the procedural requirements contained in the
Proceeds of Crime Act 2002
(“
POCA
”).
3.
This appeal raises a short but important issue. The issue is whether a substantial breach of
section 15 (2) of POCA
in conjunction with a substantial breach of
section 14
has the effect of rendering the subsequent confiscation proceedings invalid, even if they are completed within two years. The breach of
section 15
(2) is significant because that triggers the operation of
section 14
(12) and prevents the prosecution from relying upon
section 14
(11).
4.
We must first set out the relevant statutory provisions. We shall refer to the
Misuse of Drugs Act 1971
as “
the 1971 Act
”.
Section 27
(1) of
the 1971 Act
provides:
“
Forfeiture
Subject to subsection (2) below, the court by or before which a person is convicted of an offence under this Act or an offence falling within subsection (3) below or an offence to which
section 1 of the Criminal Justice (Scotland) Act 1987
relates, may order anything shown to the satisfaction of the court to relate to the offence, to be forfeited and either destroyed or dealt with in such other manner as the court may order.”
5.
We shall refer to the
Criminal Justice Act 1988
, as amended by the
Proceeds of Crime Act 1995
, as “
the 1988 Act
”. Until 23
rd
March 2003
the 1988 Act
contained the following provisions:
“
Section 71
(1)
Where an offender is convicted, in any proceedings before the Crown Court or a magistrates' court, of an offence of a relevant description, it shall be the duty of the court—
(a) if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or
(b) if the court considers, even though it has not been given such notice, that it would be appropriate for it so to proceed,
to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct.
….
Section 72A
(1) Where a court is acting under
section 71
above but considers that it requires further information before — (a) determining whether the defendant has benefited from any relevant criminal conduct; or … (c) determining the amount to be recovered in his case… it may, for the purpose of enabling that information to be obtained, postpone making that determination for such period as it may specify.
(2) More than one postponement may be made under subsection (1) above in relation to the same case.
(3) Unless it is satisfied that there are exceptional circumstances, the court shall not specify a period under subsection (1) above 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.
(4) Where the defendant appeals against his conviction, the court may, on that account — (a) postpone making any of the determinations mentioned in subsection (1) above for such period as it may specify; or (b) where it has already exercised its powers under this section to postpone, extend the specified period.
(5) A postponement or extension under subsection (1) or (4) above may be made — (a) on application by the defendant or the prosecutor; or (b) by the court of its own motion.
(6) Unless the court is satisfied that there are exceptional circumstances, any postponement or extension under subsection (4) above shall not exceed the period ending three months after the date on which the appeal is determined or otherwise disposed of.
(7) Where the court exercises its power under subsection (1) or (4) above, it may nevertheless proceed to sentence, or otherwise deal with, the defendant in respect of the offence or any of the offences concerned.
(8) Where the court has so proceeded — (a) subsection (1) of
section 71
above shall have effect as if the words from ‘before sentencing’ onwards were omitted; (b) that subsection shall further have effect as if references to an offence that will be taken into consideration in determining any sentence included references to an offence that has been so taken into account; and (c) section 72(5) above shall have effect as if after ‘determining’ there were inserted ‘in relation to any offence in respect of which he has not been sentenced or otherwise dealt with’.”
6.
With effect from 24
th
March 2003
POCA
provided as follows:
“
13. Effect of order on court’s other powers
(1) If the court makes a confiscation order it must proceed as mentioned in subsections (2) and (4) in respect of the offence or offences concerned.
(2) The court must take account of the confiscation order before—
(a) it imposes a fine on the defendant, or
(b) it makes an order falling within subsection (3).
(3) These orders fall within this subsection—
(a) an order involving payment by the defendant, other than an order under section 130 of the Sentencing Act (compensation orders); …
(b) an order under
section 27 of the Misuse of Drugs Act 1971 (c. 38)
(forfeiture orders);
(c) an order under section 143 of the Sentencing Act (deprivation orders);
(d) an order under
section 23
or
23A
of the
Terrorism Act 2000 (c. 11)
(forfeiture orders).
(4) Subject to subsection (2), the court must leave the confiscation order out of account in deciding the appropriate sentence for the defendant.
…
14. Postponement
(1) The court may—
(a) proceed under
section 6
before it sentences the defendant for the offence (or any of the offences) concerned, or
(b) postpone proceedings under
section 6
for a specified period.
(2) A period of postponement may be extended.
(3) A period of postponement (including one as extended) must not end after the permitted period ends.
(4) But subsection (3) does not apply if there are exceptional circumstances.
(5) The permitted period is the period of two years starting with the date of conviction.
(6) But if—
(a) the defendant appeals against his conviction for the offence (or any of the offences) concerned, and
(b) the period of three months (starting with the day when the appeal is determined or otherwise disposed of) ends after the period found under subsection (5),
the permitted period is that period of three months.
(7) A postponement or extension may be made—
(a) on application by the defendant;
(b) on application by the prosecutor;
(c) by the court of its own motion.
(8) If —
(a) proceedings are postponed for a period, and
(b) an application to extend the period is made before it ends,
the application may be granted even after the period ends.
(9) The date of conviction is —
(a) the date on which the defendant was convicted of the offence concerned, or
(b) if there are two or more offences and the convictions were on different dates, the date of the latest.
(10) References to appealing include references to applying under
section 111
of the
Magistrates’ Courts Act 1980
(c. 43) (statement of case).
(11) A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement.
(12) But subsection (11) does not apply if before it made the confiscation order the court—
(a) imposed a fine on the defendant;
(b) made an order falling within
section 13(3)
;
(c) made an order under section 130 of the Sentencing Act (compensation orders).
…
15. Effect of postponement
(1) If the court postpones proceedings under
section 6
it may proceed to sentence the defendant for the offence (or any of the offences) concerned.
(2) In sentencing the defendant for the offence (or any of the offences) concerned in the postponement period the court must not —
(a) impose a fine on him,
(b) make an order falling within
section 13(3)
(c) make an order for the payment of compensation under section 130 of the Sentencing Act.
…”
7.
We shall refer to the Crown Prosecution Service as “CPS”. After these introductory remarks, we must now turn to the facts.
Part 2. The facts
8.
On 12
th
July 2012 at Southwark Crown Court the appellant pleaded guilty to three counts of a six-count indictment. The offences to which the appellant pleaded guilty were possession of class A drugs with intent to supply, possession of class B drugs with intent to supply and possession of criminal property contrary to
section 329 of POCA
(money laundering).
9.
On 16
th
July 2012 the appellant appeared for sentence before Her Honour Judge Taylor at Southwark Crown Court. On that occasion there was before the court an application by the prosecution for forfeiture pursuant to
section 27
(1) of
the 1971 Act
. There was also an application by the prosecution for confiscation pursuant to
section 6 of POCA
.
10.
The judge sentenced the appellant to five years, four months imprisonment in respect of the offences. She made an order for forfeiture under
section 27
of
the 1971 Act
in respect of the following items: laptop computer, Apple iphone, Samsung phone, three further phones and a Ford motor car. The judge ordered forfeiture and destruction of the drugs which had been seized.
11.
In relation to the application for confiscation, the judge did not immediately proceed under
section 6 of POCA
. Instead, she made a postponement order under
section 14
. The judge set the following timetable:
i)
The appellant to serve a statement of his assets and means pursuant to
section 18 of POCA
by 13
th
August 2012.
ii)
The prosecution to serve its statement of information pursuant to
section 16 of POCA
by 12
th
October 2012.
iii)
The appellant to serve his response pursuant to
section 17 of POCA
by 9
th
November 2012.
iv)
A half day hearing to take place two weeks thereafter.
12.
The appellant served his statement of assets and means on 18
th
September 2012. Unfortunately thereafter the CPS let matters lapse, apparently due to various staff changes and the temporary loss of the file.
13.
On 7
th
January 2014 the case was listed before His Honour Judge Robbins. The prosecution applied for an adjournment, because counsel was not adequately instructed. The judge directed the prosecution to serve its
section 16
statement by 7
th
February 2014. The judge also made a wasted costs order against the CPS in the sum of £500. This was because the prosecution had failed to comply with the order of 16
th
July 2012, the officer in the case had failed to attend the hearing on 7
th
January and that hearing was largely wasted.
14.
On 15
th
January 2014 the prosecution served their statement of information pursuant to
section 16 of POCA
. On 25
th
January 2014 the prosecution served a revised version of that statement.
15.
Discussion followed between the parties about the revised timetable for the confiscation proceedings.
16.
On 31
st
March 2014 the case was listed for mention. No counsel appeared for the prosecution, because of a misunderstanding within the CPS.
17.
On 30
th
April 2014 the defence served a skeleton argument contending that because of the delays and non-compliance by the prosecution, the confiscation proceedings had lapsed and the court no longer had power to make a confiscation order. HHJ Lorraine-Smith heard argument on this issue at two hearings on the 2
nd
and 7
th
May 2014.
18.
At the hearing on 7
th
May 2014 HHJ Lorraine-Smith ruled that the prosecution was still entitled to pursue the confiscation proceedings, for reasons to be given later. The judge set a new timetable for the litigation, leading to a confiscation hearing on 9
th
June 2014. He also made a wasted costs order against the prosecution in respect of the hearing on 31
st
March.
19.
On the 9
th
June 2014 the confiscation hearing took place. On that date the judge delivered his reserved judgment setting out the reasons for his decision (announced on 7
th
May) that the confiscation proceedings should go forward. The judge then proceeded to make a confiscation order, incorporating figures for benefit and recoverable amount which had been agreed between the parties.
20.
The appellant was aggrieved by the making of the confiscation order. Accordingly he appealed to the Court of Appeal.
Part 3. The appeal to the Court of Appeal
21.
Miss Kitty St Aubyn for the appellant accepts that the judge made an effective order postponing the confiscation proceedings on 16
th
July 2012. That period of postponement ended in December 2012. The court failed to make any further order for postponement between then and 2014. By 2014, says Miss St Aubyn, the court no longer had the power to make any order for postponement by reason of
section 14 (8) of POCA
.
22.
Miss St Aubyn argues that
section 14
(11) cannot avail the prosecution in this case, because the court wrongly made a forfeiture order on 16
th
July 2012. Therefore
section 14
(12) applies.
23.
Mr Edward Franklin for the prosecution resists these submissions. He points out that the confiscation order was made within the two-year period specified in
POCA section 14 (5)
. The well established approach of the courts is to uphold confiscation proceedings, rather than strike them down for technical errors.
24.
In support of their competing submissions both counsel have taken the court through the recent authorities on
sections 13
to 15 of
POCA
and the predecessor provisions, contained in
sections 71
to 72A of
the 1988 Act
.
25.
Before we grapple with the issues raised in this appeal, we must first review the law.
Part 4. The law
26.
On 21
st
July 2005 the House of Lords gave its decision on two confiscation cases arising under
the 1988 Act
. The postponement provisions in that Act did not contain the equivalent of what are now
section 14
, sub-sections (11) and (12) of
POCA
. The two cases are
R v Knights
[2005] UKHL 50
;
[2006] 1 AC 368
and
R v Soneji
[2006] 1 AC;
[2005] UKHL 49
;
[2006] 1 AC 340
.
27.
In
Knights
two defendants were charged with being concerned in dealing with goods on which customs duty had not been paid, with intent to defraud. The first defendant changed his plea to guilty on 10
th
July 2000. The second defendant was convicted by the jury on 12
th
October 2000. On 17
th
October the judge sentenced both defendants to terms of imprisonment, but postponed the confiscation proceedings pursuant to
section 72A
of
the 1988 Act
. On 4
th
January 2001 the judge adjourned the confiscation proceedings to 23
rd
January. He held that his own unavailability constituted “exceptional circumstances” within
section 72A
(3), thus allowing further postponement beyond the six-month time limit.
28.
The two defendants appealed against the confiscation orders made, on the grounds that the judge had acted outside his statutory powers. Both the Court of Appeal and the House of Lords dismissed the appeals. The House of Lords held that the judge had not complied with the requirements of
section 72A
, but that did not invalidate the confiscation orders made. At paragraph 22 Lord Brown stated:
“Provided only that in postponing the proceedings the judge had acted in good faith and in the purported exercise of his
section 72A
power, I cannot think that Parliament would have intended such an error to disable the court from discharging its statutory duty to complete the confiscation proceedings against the offender.”
Lord Steyn, Lord Rodger, Lord Cullen and Lord Carswell agreed with Lord Brown.
29.
In
Soneji
the defendants were charged with conspiracy offences. The first defendant pleaded guilty on 24
th
March 2000 and the second defendant pleaded guilty on 3
rd
April 2000. On 21
st
June the prosecution served notice under
section 71
(1) (a) of
the 1988 Act
, initiating confiscation proceedings. Thereafter the judge sentenced both defendants to terms of imprisonment. On 28
th
January and 7
th
February 2002 the judge made confiscation orders against the defendants. The Court of Appeal quashed the confiscation orders, because the period of postponement had exceeded six months and the judge had not made a finding of exceptional circumstances.
30.
The House of Lords allowed an appeal by the prosecution and restored the confiscation orders. Lord Steyn gave the leading speech, with which Lords Carswell and Brown agreed. He noted that recent authority had moved away from the simple question whether the statutory requirements in issue were mandatory or directory. The court should instead focus on the question whether Parliament intended the consequences of non-compliance to be total invalidity of what followed: see [15]-[23]. Adopting that approach, the non-compliance with
section 72A
in the present case did not render the subsequent confiscation proceedings invalid.
31.
Lord Rodger in his concurring speech (with which Lord Steyn and Lord Brown agreed) stated that the purpose of
section 71
(1) was to make the sentencing process as effective as possible in a system in which confiscation orders had primacy: [36]. At [41] he explained that the six-month time limit was a protection which Parliament had built into the legislation. He then added:
“But it is a protection for the public interest represented by the prosecution, as well as for the defendant's interest, since the time-limit applies where the court considers it requires further information, irrespective of whether the information is designed to clarify a matter that is favourable to the Crown or to the defence. Presumably, Parliament was concerned that, in the absence of a time-limit, matters might tend to drift once the sentencing was over.”
This led Lord Rodger to the conclusion that, despite the non-compliance with
section 72A
, in that case the confiscation orders were valid.
32.
Lord Carswell in his concurring speech maintained that the traditional dichotomy between mandatory and directory provisions still had value. The principles enshrined in the cases discussing that dichotomy would assist in applying the new approach stated by Lord Steyn: [63]. He added that the doctrine of substantial performance was also relevant. At [67] he stated:
“I would not regard it as justified to extend the time limit indefinitely, for I do not think that Parliament would have so intended. Nor would it be sufficient to ask merely if it would be fair and reasonable to accept the validity of an act done out of time. I would suggest that one should ask if there has been substantial observance of the time limit. What will constitute substantial performance will depend on the facts of each case, and it will always be necessary to consider whether any prejudice has been caused or injustice done by regarding the act done out of time as valid.”
Lord Carswell noted that this approach would lead to the same answer as the approach which Lord Steyn had formulated.
33.
In
Donohoe
[2006] EWCA Crim 2200
;
[2007] 1 Cr App R (S) 88
at Preston Crown Court on 10
th
December 2004 the defendant pleaded guilty to three charges of possessing a controlled drug with the intent to supply. On the same occasion the prosecution applied for a confiscation order pursuant to
section 6 of POCA
. Pursuant to
section 14 of POCA
the court postponed the confiscation proceedings pending the trial of a co-accused.
34.
On 27
th
January 2005 Miss Recorder Nicholls sentenced the defendant to five years imprisonment and made an order under
section 27
of
the 1971 Act
for the forfeiture and disposal of the drugs seized. The recorder ought not to have made that or any order under
section 27
of
the 1971 Act
during the period when confiscation proceedings were on foot but had been postponed: see
sections 13
(3) (b) and 15 (2) (b) of
POCA
. Be that as it may, the next event was that on 16
th
March 2006 His Honour Judge Slinger further postponed the confiscation proceedings. His Honour Judge Cornwall subsequently ordered yet another postponement, so that the parties could lodge skeleton arguments on the question whether, in the circumstances, the court had jurisdiction to make a confiscation order. On 25
th
October 2005 HHJ Cornwall ruled that the court still had jurisdiction to make a confiscation order and he proceeded to make such an order.
35.
The Court of Appeal upheld the judge’s order. McCombe J, giving the judgment of the court, noted the contravention of
section 15
(2) and the obvious relevance of
section 14
(11) and (12). Nevertheless he held that it would be frustrating the object of
POCA
to treat these matters as depriving the court of the power to make a confiscation order. McCombe J left open the question whether the impermissible order for forfeiture made on 27
th
January 2005 was a nullity. He held that it would defy common sense if the existence of that order prevented the court from hearing the postponed confiscation proceedings.
36.
In
R v Iqbal
[2010] EWCA Crim 376
;
[2010] 1 WLR 1985
on 10
th
January 2006 at Bradford Crown Court the defendant pleaded guilty to the offence of conspiring to supply heroin. On 5
th
June 2006 the court sentenced the defendant to twelve years imprisonment (later varied to nine years). The prosecution then asked the court to proceed under
section 6 of POCA
. The court made orders postponing the confiscation proceedings until 21
st
May 2007. On that date the court sentenced a number of the defendant’s fellow conspirators. Thereafter nothing happened in relation to the defendant until 1
st
July 2009, when the matter came back before the court. By then three and a half years had elapsed since the date of the defendant’s conviction. His Honour Judge Scott held that the court had no jurisdiction to make a confiscation order. The Court of Appeal upheld that decision. Hooper LJ doubted that the court had power to make a confiscation order after expiry of the two-year period specified in
section 14
(5). Even if there was such a power, however, he held that the failure by the prosecution to apply to the court for an extension before the end of the two-year period was fatal under
section 14
(8): see [16] to [26].
37.
In
R v Neish
[2010] EWCA Crim 1011
; [2011] 1 CR App R (S) 33 at Newcastle Crown Court the defendant pleaded guilty to offences relating to the supply of drugs. On 12
th
June 2009 His Honour Judge Evans sentenced the defendant to a term of imprisonment. He made an order postponing confiscation proceedings under
section 14 of POCA
and set a timetable for those proceedings, leading up to a hearing on 11
th
December 2009. On 2
nd
December the judge discovered that he would be unavailable on 11
th
December and instructed the listing officer to re-list the hearing on a date convenient to himself and the advocates. The listing officer duly re-listed the hearing for 4
th
January 2010. At the hearing on 4
th
January the judge accepted a defence submission that the court had no power to make a confiscation order, because there had been no judicial decision to postpone the proceedings beyond 11
th
December.
38.
The Court of Appeal reversed that decision. Lord Judge CJ, delivering the judgment of the court, noted that listing was a judicial function. In this case the judge had given instructions to the listing officer and that officer had fixed a new hearing date. That process constituted a judicial decision to extend the period of postponement.
39.
In reaching this conclusion Lord Judge CJ stated two important principles at [18]. The first was this:
“… unless the continuation of confiscation proceedings would contravene an unequivocal statutory provision, there is no reason why technical errors which cause no prejudice to the defendant should prevent their continuation.”
The second principle was that
section 14
(12) was an express statutory prohibition, which it was not open to the court to ignore.
40.
We are bound to say that it is not immediately obvious how the second principle stated by Lord Judge should be reconciled with the Court of Appeal’s earlier decision in
Donohoe
. It appears that
Donohoe
was not cited in
Neish
. We shall return to this issue later.
41.
In
R v Johal
[2013] EWCA Crim 647
;
[2014] 1 WLR 146
on 12
th
March 2009 at Wolverhampton Crown Court the defendant pleaded guilty to possessing a class A controlled drug with intent to supply. On 18
th
December 2009 the court sentenced the defendant to six years imprisonment and set a timetable for confiscation proceedings. Over the next two years there was a series of delays and mishaps including, on one occasion, heavy snow which prevented the defendant being brought from prison to court. In early March 2011 the court stood out a hearing which had been fixed for 11
th
March (the last day of the two-year period) owing to lack of court time. There were subsequent disputes about skeleton arguments and there was a hearing on 22
nd
July 2011, when the case was listed for mention. Finally the procedural issues came on for hearing before Mr Recorder Desmond on 30
th
September 2011. The recorder granted an application by the prosecution for the confiscation proceedings to continue outside the two year period specified in
section 14 (5) of POCA
, on the ground that there were exceptional circumstances. On 16
th
May 2012 His Honour Judge Hughes made a confiscation order, against which the defendant appealed.
42.
The Court of Appeal dismissed the appeal and upheld the confiscation order. Irwin J, giving the judgment of the court, reviewed the authorities and concluded that a broad approach should be taken to what constitutes “exceptional circumstances” within the meaning of
POCA section 14 (4)
: see [39]. He added that, in relation to
section 14
generally, “Parliament’s intention must be taken to be to ensure that confiscation proceedings go ahead and are effective without technical problems of timing and timetabling acting as a bar to recovery”. Irwin J went on to hold that there was a sufficient factual basis for the recorder’s finding that there were exceptional circumstances.
43.
Irwin J then turned to the fact that the recorder’s order of 30
th
September 2011 did not actually specify a period of postponement. He concluded that this defect did not render the subsequent confiscation order invalid: see [45]. Alternatively, since the failure was procedural,
POCA section 14 (11)
operated to save the validity of the confiscation order: see [46].
44.
Let us now stand back from this morass of case law and see what principles can be discerned. First, as the courts have noted, there is a clear Parliamentary intention that confiscation proceedings should take priority over other proceedings against a defendant concerning forfeiture, deprivation of property or orders for payment. Secondly, as the courts have noted, there is a clear Parliamentary intention that confiscation proceedings should move forward expeditiously. The various time limits are there in order to ensure that confiscation proceedings do not simply drift after sentence has been passed. Thirdly, there is a clear Parliamentary intention that confiscation proceedings should not be invalidated by procedural errors.
Section 14
(11) says this expressly, but that provision is qualified by
section 14
(12). A strong Court of Appeal has held that
section 14
(12) is an express statutory prohibition which it is not open to the courts to ignore.
45.
The courts have repeatedly stressed the need to construe
section 71
-72A of
the 1988 Act
and
sections 13
-15 of
POCA
purposively. When assessing the effect of procedural breaches, it is necessary to consider whether Parliament really intended those breaches to invalidate the subsequent proceedings: see
Knights
and
Soneji
. In carrying out this exercise it may be helpful to consider whether, despite the prosecution’s breaches, there has been “substantial compliance” with the time limits (per Lord Carswell in
Soneji
).
46.
Recognising the intention of Parliament that confiscation proceedings should, so far as possible, be effective rather than invalidated, the court has upheld confiscation orders in a variety of circumstances, despite procedural breaches and delays by the prosecution: see
Donohoe
and
Johal
. The court treats a decision of the listing officer, following a general instruction from the judge, as a judicial decision to postpone: see
Neish
. In deciding what constitutes “exceptional circumstances” within
section 14
(3) the court adopts a broad approach: see
Johal
.
47.
Despite all this latitude, the hard fact remains that the court cannot act contrary to the express provisions of
POCA
, as the Lord Chief Justice observed in
Neish
. It was for this reason that the court had no power to make a confiscation order in
Iqbal
.
48.
This brings us back to the problem posed by
Donohoe
. It seems to us that the following is the only way in which
Donohoe
can be reconciled with the provisions of
POCA
and the Court of Appeal’s decision in
Neish
:
i)
In
Donohoe
the crown court acted in breach of
section 15 (2) of POCA
.
ii)
Therefore
section 14
(12) applied, with the result that
section 14
(11) was disapplied.
iii)
Nevertheless
POCA
does not say that a breach of
section 15 (2) of POCA
renders the postponement ineffective.
iv)
Therefore the prosecution had no need to invoke the (unavailable) balm of
section 14
(11) in order to save the validity of the confiscation order.
49.
Having reviewed the relevant authorities, we must now come to a decision on the present appeal.
Part 5. Decision
50.
In this case there were lamentable delays by the prosecution. They failed to serve any
section 16
statement in October or November 2012, as they should have done. Instead they let the whole matter go to sleep for a year. Even after that the prosecution dragged their feet. Their
section 16
statement (when eventually served) was 14 months late. On two occasions there were abortive hearings, which resulted in wasted costs orders against the CPS.
51.
The judge in his judgment of 9
th
June 2014 noted that the prosecution ought to have applied for a further postponement under
section 14
in December 2012, when it was apparent that the original timetable could not be met. The prosecution failed to do so. The judge rightly characterised this as a serious procedural error at page 10G of his judgment. Nevertheless he considered that this error was capable of remedy within the two-year period specified in
section 14 (5) of POCA
.
52.
We do not agree.
Section 14
(8) provides that a period of postponement can only be extended if an application for extension is made before the period of postponement has ended. In this case the application to extend was made long after the period of postponement had ended.
53.
In the ordinary way that would not be fatal to the prosecution. The saving provision of
section 14
(11) would come to the rescue. But
section 14
(11) does not apply in the present case. That is because on 12
th
July 2012 the court had wrongfully made a forfeiture order in breach of
section 15
(2).
54.
At one time we inclined to the view that the Court of Appeal’s decision in
Donohoe
might avail the prosecution. But that is not correct. In this case, unlike
Donohoe
, the prosecution needs the balm of
section 14
(11) in order to retrieve its position.
55.
It is of course right that we must strive to give effect to the objects of
POCA
and the intention of Parliament, as the House of Lords stated in both
Knights
and
Soneji
. The difficulty for the prosecution, however, is that part of Parliament’s intention is now expressed in
section 14 (12) of POCA
. That is a mandatory prohibition which, as the Lord Chief Justice stated in
Neish
, cannot be ignored. Forfeiture orders should not be made when confiscation proceedings are under way. If forfeiture orders are made in such circumstances, then the prosecution will be held more strictly to the time limits contained in
section 14
.
56.
If one applies the helpful test suggested by Lord Carswell in
Soneji
at [67], it can be seen that there has most certainly not been substantial observance of the time limits by the prosecution. We do not base our decision on the “substantial performance” test. We merely note that in the present case that test, suggested by Lord Carswell, leads to the same results as that indicated above.
57.
We acknowledge that in this case, unlike
Iqbal
, the two-year period had not expired on the date when the court made its confiscation order. Nevertheless we conclude that the combination of delays and breaches by the prosecution was such as to deprive the court of the power to make a confiscation order.
58.
Whilst some of our comments may seem critical of the CPS, we do appreciate that that organisation is over-worked and stretched. If the prosecution is unable (for whatever reason) to carry through confiscation proceedings efficiently, the consequence may be, and in this case is, that large sums are lost to the public purse.
59.
In the result, we allow the appellant’s appeal and quash the confiscation order. | {"ConvCourtName": ["Southwark Crown Court"], "ConvictPleaDate": ["12th July 2012"], "ConvictOffence": ["possession of class A drugs with intent to supply", "possession of class B drugs with intent to supply", "possession of criminal property"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["data not available"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Southwark Crown Court"], "Sentence": ["five years, four months imprisonment", "order for forfeiture"], "SentServe": ["in respect of the offences."], "WhatAncillary": ["order for forfeiture"], "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": ["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": ["laptop computer, Apple iphone, Samsung phone"], "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": ["against an order for confiscation"], "AppealGround": ["argues that section 14 (11) cannot avail the prosecution in this case, because the court wrongly made a forfeiture order", "grounds of serious non-compliance by the prosecution with the procedural requirements"], "SentGuideWhich": ["section 329 of POCA (money laundering)", "Criminal Justice Act 1988,", "Proceeds of Crime Act 1995", "Proceeds of Crime Act 2002 (“POCA”).", "Misuse of Drugs Act 1971"], "AppealOutcome": ["allow the appellant’s appeal and quash the confiscation order."], "ReasonQuashConv": ["we conclude that the combination of delays and breaches by the prosecution was such as to deprive the court of the power to make a confiscation"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | {"ConvCourtName": ["Southwark Crown Court"], "ConvictPleaDate": ["2012-07-12"], "ConvictOffence": ["possession of criminal property", "possession of class B drugs with intent to supply", "possession of class A drugs with intent to supply"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["Don't know"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Southwark Crown Court"], "Sentence": ["order for forfeiture", "five years, four months imprisonment"], "SentServe": ["Concurrent"], "WhatAncillary": ["order for forfeiture"], "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": ["Digital"], "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": ["argues that section 14 (11) cannot avail the prosecution in this case, because the court wrongly made a forfeiture order", "grounds of serious non-compliance by the prosecution with the procedural requirements"], "SentGuideWhich": ["Proceeds of Crime Act 1995", "Criminal Justice Act 1988,", "section 329 of POCA (money laundering)", "Misuse of Drugs Act 1971", "Proceeds of Crime Act 2002 (“POCA”)."], "AppealOutcome": ["allow the appellant’s appeal and quash the confiscation order."], "ReasonQuashConv": ["we conclude that the combination of delays and breaches by the prosecution was such as to deprive the court of the power to make a confiscation"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["data not available"]} | 27 |
Neutral Citation Number:
[2010] EWCA Crim 101
Case Nos:
200804858C1
200804859C1
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NEWCASTLE
HIS HONOUR JUDGE WOOD
T20070247
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
05/02/2010
Before:
LORD JUSTICE THOMAS
MR. JUSTICE SAUNDERS
and
MR. JUSTICE STADLEN
- - - - - - - - - - - - - - - - - - - - -
Between:
Ian Malcolm Perkes
Sean Robert Perkes
Appellants
- and -
The Queen
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr. P. Hackett QC
(instructed by Bartons) for the Appellants
Mr. S. Phillips
(instructed by
the Serious Organised Crime Agency) for the Respondent
Hearing date: 9
th
December 2009
- - - - - - - - - - - - - - - - - - - - -
Judgment
The Hon. Mr. Justice Saunders:
1.
These Applicants are fish merchants. On 11
th
May 2007, at Newcastle Crown Court they pleaded guilty to 5 counts of failing to submit sales notes and landing declarations relating to purchases of fish that they made. They pleaded on a basis that they were not intending to deceive anyone but they were not aware of the requirements of the legislation because they were so busy. These are offences of strict liability so that would not provide a defence but might affect sentence. They were sentenced by HH Judge Wood on 21
st
February 2008 to fines of £400 on each count and confiscation orders were made in the sum of £188,195 against Ian Perkes and in the sum of £150,000 against Sean Perkes. The Judge made it clear that he had moderated the level of the fines because of the size of the Confiscation Orders.
2.
The Applicants seek leave to appeal against the Confiscation Orders, their applications for leave having been referred to the full Court by the single Judge.
3.
The offences were contrary to the Sea Fishing (Enforcement of Community Control Measures) Order which is designed to prevent over fishing of fish stocks in relation to certain species. These Defendants were only two of a number of people before the Court facing similar charges and the overall picture before the Court revealed widespread disregard of the provisions which, as the Judge said, not only threatened fish stocks but also was unfair on those who did obey the Regulations and whose livelihoods were thereby threatened. The Regulations required the first purchasers of fish to produce sales invoices to the Authorities to enable them to maintain the quota so that fish stocks can be preserved. The requirement is not limited to protected species but there was an exemption in relation to the purchase of fish from boats of less than 10 metres in length.
4.
The Confiscation Proceedings against the 2 Applicants were originally contested. Indeed all the evidence on which the parties wished to rely was called before the Judge over 2 days. The Prosecution were claiming just over £950,000 in the Confiscation Proceedings, covering purchases made over a 6 year period prior to the offences. Although it was not conceded at the hearing by the Applicants, this case came within the criminal lifestyle provisions as the Judge would have been bound to conclude. The Court would then have had to apply the statutory presumptions. The main thrust of the Applicants’ argument before the Judge was that it would be unfair to make the order asked by the Prosecution because not only were they ignorant of the requirements made by these Regulations but also the relevant Ministry had completely failed to inform the trade of their existence. However they did give evidence of their knowledge of the people from whom they purchased fish and whether the fish was caught using boats which were under 10 metres in length and whether they were first purchasers. As they effectively conceded on oath they had very little knowledge as to where the fish had come from. The hearing did not go well for the Applicants although they both had the opportunity to give evidence and did so. On the morning when the Judge was due to rule on the amount of the benefit, a discussion took place between the Judge and Counsel. The Judge was concerned that if he was driven to order the full amount claimed by the Prosecution, it would effectively destroy their business. He therefore encouraged a negotiation to agree a lesser figure. As a result a total figure of just over one third of the claim was agreed.
5.
As is conceded by the Applicants, it is not easy to appeal an agreed Order. They argue, however, that they had no option but to do the best deal they could because, as a result of inadequate advice they had been given by their legal team, they were not aware of the difficulties they faced, and, in particular, the evidential burden that fell on them arising from the assumptions which had to be made, as this was unquestionably a criminal lifestyle case. Therefore, not having had appropriate advice, the Applicants argue that through no fault of their own they were unprepared for the hearing and because the Judge was likely to calculate the benefit at just under £1m, they had no alternative but do the best deal that they could.
6.
We have been shown numerous attendance notes which give some indication of the advice being given to the Applicants by their Solicitor and Counsel. While not making any finding on the matter, and this is only an application for leave, we are prepared to accept that there is an arguable case that the Applicants were not being made fully aware of the difficulties that they faced especially in relation to the assumptions, and that as a consequence they did not prepare for the case as fully as they should. It is fair however to point out that as from the service of the s. 16 statement in July 2007 the Applicants were well aware of the amount claimed by the Prosecution and the basis for it. It is also clear that the Applicants knew or ought to have known that key issues at the hearing would be whether they were first purchasers of the fish and, if they were, whether the fish came from boats of under 10 metres in length.
7.
In deciding what test we should apply in determining whether to give leave, we have considered the case of Hirani [2008] EWCA 1463. This was another case where a Defendant was seeking to set aside a Confiscation Order made by consent in reliance on, it was said, incorrect legal advice. The facts are not identical but we have applied the guidance set out at paragraph 35 of the judgment namely that, where an agreed Confiscation Order is said to have been made on incorrect legal advice, the Order should only be set aside ‘in the most exceptional circumstances’ and ‘there would need to be a well founded submission that the whole process was unfair’.
8.
We have had to consider what the realities of this case were. The Prosecution case for confiscation was based on invoices recording cash purchases of fish. These did not contain the name of the purchaser in any identifiable form. In some cases they bore the name of a boat which, on enquiry being made by the Prosecution, proved to be fictitious or came from firms which the Prosecution were unable to trace. It is agreed by the Applicants that they came within the criminal lifestyle provisions. It is further agreed that, by virtue of the assumptions, it was for the Applicants to establish their case that the purchases represented by the invoices were legitimate in the sense that they came from boats under 10 metres in length or were not first purchases of the fish. Alternatively the Applicants could seek to demonstrate that the purchases were of non quota fish; in which case there was an argument that it would be unfair to make a Confiscation Order in relation to those purchases.
9.
Realistically the only way the presumption could be rebutted would be for the Applicants to identify the sellers of the fish and either call them to support the Applicants’ case or at least allow an investigation to be made to see whether those contentions were agreed. When interviewed in relation to the identities of the people who sold them the fish Sean Perkes was evasive and Ian Perkes walked out of the interview. Of course, both were entitled to remain silent but it does not suggest that they would have been prepared to name the sellers to the Judge and indeed neither Applicant did in his evidence. In the evidence they gave before the Judge both indicated that they were not in a position to identify the sellers. Further, on this application, the evidence filed by the Applicants that they wished to call on an appeal, did not include any identification of the sellers or anything like sufficient evidence to rebut the presumption. It is well established that vague generalisations will not be sufficient to displace the assumptions set out in the Act.
10.
At the conclusion of the oral hearing we invited the Applicants, if they wished, to put in any evidence that they would be able to call to support their contention that, if properly advised, they would have been able to rebut these presumptions. What has been produced is an affidavit from Sean Perkes and a schedule identifying invoice by invoice the identity of the seller where it is known and also whether it comes from a boat of under 10 metres in length or was not a first time purchase. Looked at in the context of the case as a whole, we have concluded that that evidence, if it had been given, would not have been anything like sufficient to displace the assumptions that the Judge was required to make. Some of the evidence had been given at the hearing, although it is fair to say that more detail has been given in the schedule. One of the difficulties for the Applicants is that, where more detail is given, it is, at least on some occasions, contrary to what was said by one or other of the Applicants either in evidence on oath or in the course of interviews. Having considered that new evidence, we are quite satisfied that the Applicants were aware at the time of the confiscation that the issues it deals with were important to their case and could have been dealt with by them at the hearing before the Judge had they been prepared to give the detail they have included in the schedule. There is no supporting evidence from any of the suggested sellers and in most cases it is impossible to identify who they are.
11.
In those circumstances we do not think there is anything like an arguable case that the whole process was unfair. It is apparent from the affidavit that the Applicants believe that they have been very unfairly dealt with. However their real complaint would appear to be with the rigour of the legislation and the way it was enforced by the Ministry. We do not think that the court process was unfair; indeed it could well be argued that they were extremely lucky that the Judge took the humane course that he did which led to the settlement.
12.
The Applicants also complain that much of the confiscation hearing was conducted by the Prosecution on a basis that was contrary to the basis of plea. Having considered the cases of Lazurus
[2004] EWCA Crim 2297
and Lunnon
[2005] 1 Cr. App. R.(S) 24
, we are by no means satisfied that this is one of those cases where the Prosecution, by not contradicting a basis of plea, had bound itself in the Confiscation Proceedings. Further we are quite satisfied that, even if the Prosecution were so bound, that it did not render the proceedings unfair. | {"ConvCourtName": ["Newcastle Crown Court"], "ConvictPleaDate": ["11th May 2007"], "ConvictOffence": ["failing to submit sales notes and landing declarations relating to purchases of fish"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["at Newcastle Crown Court they pleaded guilty"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Newcastle Crown Court"], "Sentence": ["data not available"], "SentServe": ["data not available"], "WhatAncillary": ["fines of £400", "in the sum of £150,000 against Sean Perkes", "confiscation orders were made in the sum of £188,195 against Ian Perkes"], "OffSex": ["Ian Malcolm Perkes\n \n Sean Robert Perkes"], "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": ["based on invoices recording cash purchases of fish."], "DefEvidTypeTrial": ["were not aware of the requirements of the legislation because they were so busy"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Applicants are fish merchants. On 11th May 2007, at Newcastle Crown Court they pleaded guilty to 5 counts o"], "CoDefAccNum": ["Ian Malcolm Perkes\n \n Sean Robert Perkes"], "AppealAgainst": ["The Applicants seek leave to appeal against the Confiscation Orders,"], "AppealGround": ["as a result of inadequate advice they had been given by their legal team,"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["11.In those circumstances we do not think there is anything like an arguable case that the whole process was unfair. It is apparent from the affidavit that the Applicants believe that they have been very unfairly dealt with. However their real complaint would appear to be with the rigour of the legislation and the way it was enforced by the Ministry. We do not think that the court process was unfair; indeed it could well be argued that they were extremely lucky that the Judge took the humane course that he did which led to the settlement.12.The Applicants also complain that much of the confiscation hearing was conducted by the Prosecution on a basis that was contrary to the basis of plea. Having considered the cases of Lazurus [2004] EWCA Crim 2297 and Lunnon [2005] 1 Cr. App. R.(S) 24, we are by no means satisfied that this is one of those cases where the Prosecution, by not contradicting a basis of plea, had bound itself in the Confiscation Proceedings. Further we are quite satisfied that, even if the Prosecution were so bound, that it did not render the proceedings unfair."], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["that it did not render the proceedings unfair."]} | {"ConvCourtName": ["Newcastle Crown Court"], "ConvictPleaDate": ["2007-05-11"], "ConvictOffence": ["failing to submit sales notes and landing declarations relating to purchases of fish"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["In court"], "RemandDecision": ["No"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Newcastle Crown Court"], "Sentence": ["data not available"], "SentServe": ["data not available"], "WhatAncillary": ["in the sum of £150,000 against Sean Perkes", "confiscation orders were made in the sum of £188,195 against Ian Perkes", "fine"], "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": ["Purchase invoices"], "DefEvidTypeTrial": ["were not aware of the requirements of the legislation because they were so busy"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["1"], "AppealAgainst": ["Other (e.g., application for extension of time to appeal)"], "AppealGround": ["as a result of inadequate advice they had been given by their legal team,"], "SentGuideWhich": ["data not available"], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["Proceedings were not unfair"]} | 540 |
Neutral Citation Number:
[2013] EWCA Crim 85
Case No:
201106750 D4
201106720 D4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIGH COURT QUEEN’S BENCH DIVISION
HIS HONOUR JUDGE MURPHY
T20110275
T20110234
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
13/02/2013
Before :
LORD JUSTICE RIX
MR JUSTICE MACKAY
and
MR JUSTICE UNDERHILL
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
Respondent
- and -
Mia Moore
and
Ben Peter Burrows
Appellants
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
R Carey-Hughes QC and D Lawler
(instructed by
Foxes Solicitors
) for the
1
st
Appellant
S A Rodham
(instructed by
Goldkorns Solicitors
) for the
2
nd
Appellant
R Whittam QC and T Hunter
(instructed by
CPS Special Crime Appeal Unit
) for the
Respondent
Hearing dates : Thursday 13
th
December 2012
Judgment
Lord Justice Rix :
1.
This appeal is about the issue of entrapment. It is submitted on behalf of the appellants that they were entrapped by undercover police officers into supplying cocaine. Their two cases are very different. Mia Moore was charged with six counts of supplying cocaine (in amounts of one ounce), two counts of being concerned in the supply of cocaine (again in amounts of one ounce), 2 counts of handling stolen goods, and one count of delivering counterfeit £10 notes. The offences took place over a period beginning on 8 September 2010 (the first of the supplies of cocaine) and ending on 28 February 2011 (the counterfeit notes). Ben Burrows, however, was simply caught up in one of the supplies of cocaine, that of 11 February 2011, because he happened to be with Mia Moore that day, went with her to fetch the drugs and actually handed the drugs over (while Ms Moore was in the bath) to the police officer. So he was charged with supply (the only count against him) and she was charged with being concerned in supplying on that occasion.
2.
Both appellants applied at trial to have the indictments against them stayed for abuse of process on the ground of entrapment. Mr Burrows’ case is entirely dependent upon Ms Moore’s. Ms Moore’s case is premised on the role played by the undercover police officers in supplying her with cheap goods from whose on-sale she could profit. It is submitted that, although she was not a target of the undercover operation and was not suspected of any relevant offending, she had been groomed into a situation of dependence on such cheap goods; that she was poor and vulnerable, and it was in this context that one of the undercover police officers first asked her about where he could obtain cocaine. That was the vital first question, from which all else followed. It is submitted that in this context she was “lured” into the commission of crime in the sense described by the leading authority of
R v. Looseley
,
Attorney-General’s Reference (No 3 of 2000)
[2000] UKHL 53
,
[2001] 1 WLR 2060
.
3.
Following the failure of their applications, Ms Moore and Mr Burrows pleaded guilty on re-arraignment on 28 October 2011 at the Crown Court at Blackfriars. She was sentenced on 13 December 2011 by HHJ Murphy to a total of 4 years 8 months imprisonment: 4 years in respect of each of the drug offences, 10 months concurrent in respect of each of the handling offences, and 8 months consecutive in respect of the counterfeit notes offence. He was sentenced on 23 January 2012 by the same judge to 12 months’ imprisonment suspended for 2 years, with a requirement to carry out 180 hours of unpaid work in the first year. Both appeal against conviction with the limited leave of the single judge.
4.
The application to stay for abuse of process had three limbs to it: there was a complaint that disclosure about the authorisation of the undercover operation was inadequate; there was a complaint that the operation was unauthorised and unlawful; and there was a complaint of entrapment. All three limbs of the application failed. The judge decided that there was a legitimate public interest immunity preventing full disclosure, but that there was nothing which he had reviewed that would in any way assist the defence case or undermine the Crown’s case, either in relation to the application to stay or generally. However, the court would make an assumption on behalf of the defendants that the undercover operation involved the supply of cheap goods on a very large scale, at any rate in the global sense rather than in relation to any particular individual.
5.
As for authorisation of the undercover operation, the judge ruled that in essence it was properly authorised, but that the tactic of infiltrating the locality under investigation by means of a pretence of criminal participation by the undercover police officers in the handling and supply of stolen goods (the so-called “building the legend”) had not been lawfully authorised in advance, but had nevertheless been properly supervised and monitored in progress. Therefore, the failure to authorise in advance, although regrettable, was not of great significance and was not dispositive of the application to stay.
6.
As for the allegation of entrapment, the judge ruled that there was no abuse. Unfortunately, the tape recording of the judge’s ruling malfunctioned at this point, so that his reasons have to be gauged from some scanty notes. The skeleton served on behalf of Ms Moore seeks to reconstitute those notes to this effect: the key question for the judge related to what was said on 2 September 2010 when talk of drugs first arose (see below, for a verbatim citation of that conversation), and was whether the undercover police officer’s question “You might be able to help me. Does anyone round here got any [cocaine]?” amounted to state-sponsored crime. It did not, but Ms Moore freely took advantage of the opportunity offered and there was no incitement of the offence which later took place. It is submitted on behalf of Ms Moore that the judge’s key question was an over-simplification of the learning of
Looseley
, and that the judge failed to take adequate account of what had gone before in terms of “grooming”, viz the supply of cheap goods which “acted as a powerful inducement upon Mia Moore such that she would do anything to keep them happy”.
7.
There were five accused, each of whom applied to stay their respective proceedings. The applications were heard prior to trial. In each case it was understood that, should the application fail, the accused would plead guilty. The applications made on behalf of two of the accused were abandoned. Three applications were heard, and refused. There were lengthy submissions, but no
voir dire
. One of the accused has not appealed.
8.
The present appellants originally requested an appeal on three grounds: one related to discovery, a second related to illegality of the operation, the third related to entrapment. Leave to appeal has been granted only in relation to entrapment, and there has been no attempt to renew the application for leave to appeal in respect of the first two grounds. Nevertheless, it is submitted that the entrapment ground has to be considered in the light of the question of illegality. If so, that can only be, in our judgment, on the basis of the judge’s findings with respect to that issue. Mr Carey-Hughes QC who is instructed with Mr Lawler on this appeal on behalf of Ms Moore, did not appear for her at trial.
The authorising and supervisory documents
9.
In October 2009 the police were concerned at the prevalence of drugs and firearms offences conducted by organised criminal networks in the London Borough of Greenwich, particularly in the Abbeywood area. They therefore commenced an undercover operation known as Operation Bintan (and latterly as Operation Trazer). Undercover officers established themselves in the local community as criminals. They offered large quantities of goods for sale at very cheap prices, with the implication that the goods were stolen. This was described as “building a legend”, ie a cover story in the community.
10.
The authority for the operation was signed off on 1 October 2009 by Commander Peter Spindler. It was to last for one year until 30 September 2009. Commander Spindler stated that he was satisfied that the operation “concerns a long term infiltration in respect of a wide range of major criminality, namely the supply and distribution of Class A Drugs, Firearms and other organised crime conducted by means of an investigation into subjects [redacted]…and or there [sic] associates who are members of organised criminal networks.” The authority authorised undercover officers “to establish, develop and maintain a relationship with the subjects [redacted] or any of their criminal associate(s) for the covert purpose of gathering intelligence and/or evidence in relation to their involvement in the illegal supply/distribution of firearms, Class A drugs, and organised crime, as detailed within the application report.” It also authorised undercover officers “to participate in crime to the extent of entering into an existing criminal conspiracy to supply/distribute firearms, class A drugs, and organised crime.” Commander Spindler noted that “the desired result of the authorisation cannot reasonably be achieved by less intrusive means” and that “the risk of collateral intrusion has been properly considered”. Authority was granted for the rental of residential premises by the undercover officers, and for the release of £5,000 in funds. Any purchases were to be “corroborated and evidenced”, and £2,000 was authorised for such purposes for the moment. The authority stated: “If there is further use and conduct of the undercover officer outside of that already authorised or there is a significant development requiring additional authority, a further update report is to be submitted immediately.” It continued: “There must be a continued assessment of a likely degree of intrusion into the privacy of those potentially affected to ensure that it remains proportionate to what the undercover officer seeks to achieve. The likely collateral intrusion into the privacy of persons, other than those directly implicated, or any adverse impact on community confidence must be constantly reviewed.”
11.
There was nothing in that authority explicitly describing the use of cheap goods to support the undercover officers’ cover within the local community.
12.
However, that authority was granted in part on the basis of an “Analytical Strategy” and “RIPA Application” dated 28 September 2009 which stated: “UCO’s ‘conduct & intention’ key – MUST be accepted in area – VERY difficult – Good cover story/legend key issue.” A further such document dated 5 October 2009 stated “UCO’s given instructions…‘join’ community in Abbeywood area, source accommodation, source ‘business’ premises, enquire availability of (in area) a) drugs b) firearms c) stolen goods…Tactic now authorised, need to appear to be in the community full time, strategy agreed/authorised.” Yet another such document also dated 5 October 2009 stated as having been “Discussed and understood”:
“Any goods offered/given/sold to locals will only be to further the ‘cover stories’ & maintain credibility of UCO’s. The sale/supply of such goods must
NOT
act as A.P. [Agent Provocateur] & expectation is that subjects will have shown some element of predisposition directly/indirectly with criminality subject of operation.”
13.
A still further such document of the same date referred to
Looseley
and continued: “(1) Establish intel re subject/premises → predisposition (however emerges), (2) offer unexceptional opportunity to subject → ie ‘POSE’ as drug dealer/handler etc, (3) evidence extent of criminality → no forcing them to so something that they wouldn’t normally do (ie not AP)…Only tempt those predisposed.”
14.
It seems reasonable to regard the first of such documents as the basis for Commander Spindler’s authority and the later two documents as a “further update report” in terms of that authority.
15.
A further authority was signed off by Commander Spindler on 29 September 2010 for another year. This repeated the essence of the first authority. It began by referring to the “application and supervisory comments of DCI McDonald and Detective Superintendent Haplin”, which would appear to include the material cited above.
16.
It was in the light of these documents that the judge ruled as follows:
“Firstly, the conduct…was not covered by the authorisations and was to that extent, and to that extent only, unlawful. In my judgment it should have been covered and the failure to do so was an error of judgment on the part of the authorising officer although to some extent understandable because there was a general covering of criminal activity and there was clearly in my judgment an awareness on the part of all concerned [of] what the activities were going to be so there was no substantial dereliction there…the officers’ conduct was properly controlled and monitored at all times and therefore I do not consider the…failure, regrettable as it was, to be of particularly great significance in the outcome of the applications.”
The judge then referred to
R v. Harmes and Crane
[2006] EWCA Crim 928
where this court similarly did not consider that (as he described it) “whatever technical failures there might have been in the authorisations” were dispositive.
17.
The single judge, Mr Justice Edwards-Stuart, said “I am not persuaded by the points about the legality of the operation in general terms or the need for the additional disclosure” and refused leave to appeal with respect to the first two grounds of appeal proposed which were in these terms: “(i) Lack of disclosure prevented full and comprehensive submissions being made on behalf of the applicant; (ii) The learned judge failed to attach proper weight to the proven breaches of the CHIS Code of Practice when considering submissions made on behalf of the applicant”.
18.
As stated above, the appellants are bound by their limited leave to appeal. They are therefore bound by the judge’s judgment that the breaches of the Code in failing specifically to authorise the use by the undercover officers of the supply of cheap goods to build their cover and to assist them in their infiltration of the locals was, in the circumstances of its supervision, merely technical. We would comment that the supply of cheap goods, apparently stolen, may have had an element of subterfuge to it, but it was not itself criminal, for the goods were not stolen. The purchase of the cocaine (or the goods and counterfeit notes involved in the other counts) was criminal, but was properly authorised. Moreover, at any rate by the time of the renewal of Commander Spindler’s authority for the second year of the operation (covering the period into which most of the offences fall), it is plain from the documents cited above that he continued to authorise the operation with a complete understanding of the means adopted by the undercover officers to build their cover as drug dealers and handlers, including the offering of goods.
The facts in relation to Ms Moore
19.
Ms Moore was 26 years old at the time of sentence. We are told that she had three prior convictions, but she was not an authorised target nor was she suspected of dealing in drugs. She was, however, related to a father and a step-father who, at any rate for the purpose of the argument, were regarded as or at least suspected of doing so. Her step-father was Gary Reed, a local criminal. It was he who introduced Ms Moore to the undercover officers. He did so with the request that they help her to “make herself a few quid” from mobile phones they were supplying. That was on 22 June 2010, in a telephone call. He mentioned her name and said that she would contact them, which she did. This led to a telephone conversation between undercover officer “Jason” and Ms Moore on 19 July 2010 in which he mentioned goods he had for sale. On 20 July Ms Moore texted Jason to ask to meet, which they did on 21 July 2010. Ms Moore then made her first purchase, of two sleeves of cigarettes for £30.
20.
On 4 August 2010 she texted Jason for some more supply. The matter hung fire for some time, but on 2 September 2010 Ms Moore and Jason met again (at her home) so that Jason could deliver a further two sleeves of cigarettes and two bottles of sparkling wine, for £32. That was her second purchase and the crucial occasion on which drugs were first discussed. The facts we relate are taken from the evidence recorded by the undercover officers.
21.
After that transaction, the following conversation took place:
“Jason: You might be able to help me. Does anyone round here got any [inaudible,
scilicet
cocaine].
Moore: Yeah I can get it, in big bits for ya.
Jason: In big bits?
Moore: Yeah, at thirteen hundred pound. But it’s none of that, it’s none of that shit.
Jason: How much notice do you need for that?
Moore: What for that? That’s an ounce, I can get that on the ounce.
…Maybe a day…
Jason: Yeah just one [ounce].
Moore: Yeah I can do it [inaudible]. I tell you what I will do, I will call him and get back to ya. I just keep in touch.”
22.
On behalf of Ms Moore, Mr Carey-Hughes QC submitted that Jason’s question to Ms Moore (“Does anyone round here got any [cocaine]?”) was the single critical fact of this history. It was a request for a favour, posed in the light of the two supply deals which Jason had passed her way, which Mr Carey-Hughes described as “grooming”. He submitted that Jason’s question was illegitimate. It was the crossing of the Rubicon. Everything depended on that first question (and her answer). It would have been entirely different if Ms Moore had been the first to offer drugs: then there could be no complaint.
23.
It may, however, be observed how immediately and directly Ms Moore responded to what was, after all, a general enquiry about “anyone round here?” She straightway volunteered that
she
could get it, in “big bits”, of good quality (“none of that shit”), at £1300 per ounce, on a day’s notice. It is apparent that Ms Moore had complete confidence in her ability to supply.
24.
This was, as it turned out, because Ms Moore had her own father, Graham Moore, in mind as her supplier. She provided Jason with her father’s telephone number so that the two could negotiate directly with one another (“because there is other stuff (inaudible) you can battle along between ya”). (Jason called her father. In due course Jason and Graham Moore were to do drug deals of their own, beyond those which led to the charges against Ms Moore, and in respect of which Moore has been separately indicted.) Graham Moore lived in Bournemouth, but Ms Moore offered to collect the drugs. Jason said: “Oh alright, you alright doing that though, you sure?”; to which Ms Moore replied: “Yeah, yeah it’s no problem, it’s cool.” Later that same day there was a telephone conversation between Ms Moore and Jason. It transpires from that, that Jason and Graham Moore agreed £900 for an ounce of cocaine and also discussed “bigger and better business”. It was arranged that Graham Moore would get the cocaine to Ms Moore and she would get it to Jason. He was to pay her the £900 up front. Jason asked her: “But, only if that is alright with you girl? That’s the only thing.” She said “Yeah, that’s no problem. A little later he asked again: “Is that alright then yeah?” She said: “Yeah that’s fine that’s cool.” In all Jason asked five times if she was happy with her role, and she confirmed she was.
25.
On 3 September 2010 Ms Moore made her first supply to undercover officer “Nat” (Jason’s colleague) of an ounce (25.9 grams) of cocaine. Nat asked: “Did you get a drink for this?” Ms Moore replied: “Nah, it’s alright don’t worry I will sort something out with Jason.” Nat said: “Are you sure, if you want anything, any kind of phones or anything stuff he has.” Ms Moore said: “Yeah that’s what I mean. I talk to him during the week. Definitely yeah, keeps him happy that’s cool.” Mr Carey-Hughes submits that it is possible to see in this conversation the symbiotic relationship between the supply of cocaine and the desire to obtain cheap stock from the undercover officers.
26.
On 5 September 2010 there was a conversation between Ms Moore and Jason about her step-father Gary Reed. She said that she was concerned about him undercutting her, saying “I know exactly what he is trying to do, trying to overcut and undercut me. I know what he is like. (Inaudible) He doesn’t know where I get my stuff is completely different to him.” Later still on 5 September she met Nat to see some phones that were for sale. Nat gave her a Blackberry as her “drink” in relation to the initial trade. She asked him “What did you think of that stuff?” Nat told her it was excellent and asked if there was any chance of some more. She said: “Just let me know which [day] a day before and I will go and get it.” She dissuaded Nat’s offer to go and fetch the cocaine himself, saying she would fetch it like the last time, “instead of dragging you along with me”.
On behalf of the Crown, Mr Richard Whittam QC submitted that these conversations showed Ms Moore trying to maintain her role in the supply independent of both her step-father and her father.
27.
On 8 September 2010 Ms Moore supplied the second ounce of cocaine (26.3 grams) to Nat. He again suggested he would deal directly with her supplier: “The other thing, I am thinking about going directly to the guy to make it easier for you.” On this occasion she agreed, saying that she had spoken to him, ie her father, herself, and “well he said the same thing to me”. Jason contacted Ms Moore not long later to confirm his direct dealing: “…I will deal direct with him and then you don’t have to start running around”.
28.
On 17 September 2010 Jason and Nat met Ms Moore to sell her four sleeves of cigarettes, two handbags and a set of sunglasses, for £95, for which she was given credit. She paid the £95 off on 5 October 2010, on which occasion she received further stock on credit (five blocks of cigarettes, t-shirts and bags). In the meantime there were conversations about the money she owed, but she was told not to worry.
29.
The third supply of cocaine occurred on 12 November 2010, but the deal was initiated on 4 November when Jason and Nat met Ms Moore to collect the money she owed and to drop off some samples of stock. Ms Moore told them that she had lost her job (she had been working for her father), and paid £40 on account of what she owed. At that stage she had made two supplies and then the undercover officers had removed her from the subsequent offences involving her father. Now she initiated further cocaine trades, asking if they were still happy dealing with Graham. Jason asked why she asked, and she said “Cos there is other stuff coming about as well…But it won’t be off him, from someone else…From one of my friends, local, more local.” She was asked whether her supplier was “Gary’s people”, with whom Jason said he had been doing “a couple of bits”, but she said no but was not more specific. She said “we will look at it and go from there”. Jason told her to go ahead. On 9 November she texted Jason, without any prompting, to say she had news “on the other”. On 11 November they met up. Jason provided her with two handbags and two mobile phones. He asked about the “bits and bobs” and was told “good to go when you ready to go”. The price agreed was £900. On 12 November Jason collected the third ounce of cocaine (27.8 grams) from Ms Moore at her home.
30.
On 24 November 2010 Jason contacted Ms Moore to order a fourth supply. The next day Jason collected it from her home. At the same meeting Ms Moore paid £30 for the phones he had given her and returned the handbags. Jason showed her some cosmetic items and left her with £39 worth of them.
31.
On 8 December 2010 Jason contacted Ms Moore to ask how she had got on with selling the cosmetics she had taken, and she said she had the money. She offered to leave it at her mother’s, but was told there was no rush.
32.
On 21 December 2010 there was another conversation between Ms Moore and Jason about stock. Ms Moore then turned to offer cocaine from yet another supplier. She said “You after more thing as well?…Probably someone else if you want…Come with me and have a look.” Later she put a phone call through to arrange the deal, and on 22 December she supplied a further ounce (28 grams), the fifth deal.
33.
On 10 January 2011 the sixth supply of an ounce (27.9 grams) of cocaine took place, at the request of Jason. There was also a discussion about the possibility of Jason having cigarettes to sell.
34.
On 14 January 2011 Jason went with Ms Moore to see some clothes which she had offered to sell to him. This had been discussed a few days earlier, when it was obvious from the prices proposed by Ms Moore that the goods were stolen. Jason bought the clothes, and this constituted the first of the two handling counts on the indictment. Ms Moore was given a pair of jeans as a reward by a third person involved in the sale. On 17 January there was a further purchase by Jason of more clothes. Jason had attempted to complete this transaction without Ms Moore, and he offered her a “drink” to reassure her that she did not need to attend the purchase. However, Ms Moore made her own way to the trade and involved herself in another offence (the second handling offence on the indictment).
35.
On 24 and 25 January 2011 Ms Moore asked Jason about cigarettes. On 26 January Jason telephoned to say he had cigarettes in stock but needed payment up front. As a result no deal seems to have happened.
36.
On 8 February 2011 Ms Moore texted Jason to ask about “goodies” and to say she could do “the other”.
37.
On 9 February 2011 Jason contacted Ms Moore about cigarettes and went to her flat to give them to her. She said she had no work at the moment. Jason gave her the cigarettes on credit and said there were more when she paid. There was a discussion about drugs in which Ms Moore said “I’ve been doing quite a few of them”; Jason replied “Yeah, you’re getting a bit busy round it them”; and Ms Moore responded “Yeah, it’s been good”. Jason asked if it was “with the same fellow, is it?” and Ms Moore said it was. Ms Moore offered to bring him round to meet Jason. She also raised the possibility of selling him more clothes.
38.
On 11 February 2011 Jason telephoned Ms Moore to order an ounce of cocaine. He delivered her the money and later in the day returned to her flat to pick up the cocaine (26.9 grams). This was the day when Mr Burrows happened to be with Ms Moore when she went to collect the drugs. He went with her. When Jason returned for the drugs, Ms Moore was in the bath and so it was Mr Burrows who supplied the drugs to Jason. It was for that reason that this count was charged against Ms Moore as being concerned in supplying.
39.
On 23 February 2011 Jason texted Ms Moore to say he had more cigarettes, but she said she had no money: “I’m fucked, I ain’t got no credit on my phone”. She said she would get him the money she owed him.
40.
On 24 February 2011 Jason spoke to Ms Moore to arrange the purchase of an eighth ounce of cocaine. He went to her flat and there met a man called Dan. The relevant recordings of this meeting are not exhibited. It seems from Jason’s statement that the conversation took place directly between Jason and Dan. Dan enquired if Jason would also be interested in purchasing forged £10 notes. Jason asked for his telephone number, but was told to “go through Mia”. The cocaine was supplied on 27 February (28.3 grams), but Ms Moore was not charged with supplying but with “being concerned in supplying”, ie bringing Jason and Dan together for the deal. On 28 February Jason took delivery of ten counterfeit £10 notes from Ms Moore (count 11). They compared the notes with a real £10 note and Jason discussed with her the possibility of taking the full £2000 offered. On 1 March 2011 Jason bought more counterfeit notes directly from Dan, at Ms Moore’s flat. Dan said he owed her a drink. On leaving, Jason told Ms Moore that he would forgo the £60 she still owed him.
41.
On 10 March 2011 Ms Moore was arrested.
42.
When Ms Moore came to plead guilty, having failed in her application to stay the proceedings, she did so on a basis of plea which was accepted by the judge. It included the following matters: that she had never previously been involved in the sale of drugs; that she was aware that her father, Graham Moore, could supply class A drugs; that she never made any profit from the sale of the cocaine; and that at all times she acted as “go-between” between the supplier and the undercover officers. The judge sentenced her as a “facilitator” in relation to the supply of the drugs.
43.
It is understandable that the judge accepted that basis of plea, although it came of course after the judge had made his ruling on the stay application. On the history of events we have outlined above, Ms Moore gave every appearance of being entirely familiar with the culture of cocaine drug supply, and she lent herself readily to the sourcing and supply of eight ounces of cocaine for Jason, apparently from several suppliers: but she did not appear to be a principal so far as the price was concerned, and she seems to have been rewarded in various ways as the facilitator of the deals, as appears also to have been the case where the handling of the clothes and the delivery of the counterfeit notes were concerned. She seemed short of funds and it would seem that the opportunity to profit from the supply of cheap goods was of interest to her.
44.
Although it was common ground that the undercover officers operated their supply of goods in the locality on a large scale, it does not appear that Ms Moore herself bought all that much off them over the period of about nine months with which we are concerned. In particular there were only two sales prior to the first discussion about drugs, one of cigarettes for £30 (on 21 July 2010) and the other of cigarettes and sparkling wine for £32 pounds (on 2 September 2010). After that there were further supplies of various goods: more cigarettes, two handbags and a pair of sunglasses, for £95 (on 17 September 2010), cigarettes, t-shirts and bags on 5 October 2010 (query the price, but Ms Moore paid £40 on account at a later date), two more bags and two mobile phones on 11 November 2010 (she later paid £30 for the phones and returned the bags), cosmetics for £39 on 25 November 2011, and four sleeves of cigarettes on 9 February 2011.
The law
45.
As stated above, the leading case is
Looseley
, which was heard together with
Attorney General’s Reference (No 3 of 2000
). In
Looseley
the undercover officers were authorised in an operation which focussed on a public house where drug dealings were suspected. There the defendant’s name was supplied to an officer as a potential source of drugs. The officer phoned the defendant, who supplied him with drugs, as he did on two further occasions. At trial a
voir dire
was held, but the application to stay for abuse of process was refused. That refusal was upheld in both this court and the House of Lords. In the
Attorney-General’s Reference
, however, undercover officers who offered contraband cigarettes for sale at a housing estate were introduced to the defendant as a potential buyer. They sold cigarettes at a cheap price and asked him if he could get them some heroin. At first the defendant said he could not get heroin and that he was “not into heroin”, but he eventually agreed to try to assist them. He later took the officers to a heroin supplier from whom he obtained heroin and supplied the officers in return for £475. He was arrested. When interviewed he said that he had never had anything to do with heroin before and that he only did so because the officers had supplied him with cheap cigarettes and he was doing them “a favour for a favour”. The matter was dealt with by the judge on the basis of statements which he was invited to accept as true. The judge stayed the proceedings, but there was a reference which raised a general question about whether the discretion to exclude evidence under section 78 of PACE 1978, or the power to stay proceedings for abuse of process, had been modified by article 6 of the ECHR. The court of appeal said it had not, and the House of Lords agreed: but this court also said that the judge had been wrong to stay the proceedings, whereas the House of Lords disagreed. Lord Nicholls did not deal with the actual decisions in the two cases, as distinct from matters of principle, but he said that he agreed with Lords Hoffmann and Lord Hutton, as did Lord Mackay.
46.
Lord Hoffmann said (at para [81]):
“He was induced to procure heroin for the undercover officer by the prospect of a profitable trade in smuggled cigarettes. The judge was entitled to take the view that, even if this was an authorised operation, the police had caused him to commit an offence which he would not otherwise have committed.”
47.
Lord Hutton spoke to similar effect (at para [116]). He continued:
“Therefore the officers did more than give him the opportunity to commit the offence of supplying heroin – they instigated the offence because they offered him inducements that would not ordinarily be associated with the commission of such an offence.”
Lord Hutton had previously cited the trial judge’s finding (at para [94]):
“An elaboration of those facts by Mr Munt on behalf of the defence, admitted facts, makes it absolutely clear to me that in this case these officers went further than was permissible and in fact incited and procured this defendant to commit an offence he would not otherwise have committed.”
48.
Lord Scott, however, rather thought the judge had been wrong in his decision. He said (at para [127]):
“The inducements offered to the accused in order to persuade him to supply heroin do not seem to me to correspond with what would be necessary to cause the prosecution to be an affront to the public or to offend ordinary notions of fairness. This was, however, a matter for the discretion of the trial judge, and it may be that his value judgment was one that he was entitled to reach.”
49.
Whatever the position may be with respect to the discretion under section 78, however, it would seem that the assessment of a trial judge with respect to an allegation of abuse of process is ultimately one on which an appeal court is entitled to exercise its own judgment (see
R v. Harmes and Crane
at para [54],
per
Moses LJ). Nevertheless, as the House of Lords stressed in
Looseley
, the assessment to be applied on the basis of the principles laid down in that case is very much a fact sensitive matter. As Lord Hoffmann said (at para [48]):
“The theme which runs through all discussions of the subject is that the state should not instigate the commission of criminal offences in order to punish them. But what counts for this purpose as instigation? An examination of the authorities demonstrates, in my opinion, that one cannot isolate any single factor or devise any formula that will always produce the correct answer. One can certainly identify a cluster of relevant factors but in the end their relative weight and importance depends upon the particular facts of the case.”
In this connection, this court has more than once emphasised that it will not interfere with the trial judge’s assessment of the facts unless there is a serious error: see
R v. Chandler
[2002] EWCA Crim 3167
and
R v. Paulssen
[2003] EWCA Crim 3109
.
50.
The dominant theme, therefore, of
Looseley
is that a stay is granted, not for the sake of the defendant, who ex hypothesi has committed an offence, but in order to prevent the state acting as it ought not to act. As Lord Nicholls stated in his opening paragraph:
“It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of state power.”
It follows that the key question, if it is possible to isolate any such question, was expressed by Lord Nicholls as follows:
“25. Ultimately the overall consideration is always whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into disrepute. Lord Steyn’s formulation of a prosecution which would affront the public conscience is substantially to the same effect: see
R v Latif
[1996] 1 WLR 104
, 112…In applying these formulations the court has regard to all the circumstances of the case.”
51.
For these purposes, Lord Nicholls offered as a “useful guide” –
“to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime. I emphasise the word “unexceptional”. The yardstick for the purpose of this test is, in general, whether the police conduct preceding the commission of the offence was no more than might have been expected from others in the circumstances…The police did no more than others could be expected to do.”
52.
The various considerations discussed by their Lordships in
Loosely
have been helpfully analysed by reference to subsequent authority in an article by Professor David Ormerod,
Recent Developments in Entrapment
, [2006] Covert Policing Review 65. Professor Ormerod there identifies five factors as of particular relevance: (i) reasonable suspicion of criminal activity as a legitimate trigger for the police operation; (ii) authorisation and supervision of the operation as a legitimate control mechanism; (iii) necessity and proportionality of the means employed to police particular types of offence; (iv) the concepts of the “unexceptional opportunity” and causation; and (v) authentication of the evidence.
53.
As for factor (i), Professor Ormerod suggests that reference in the speeches in
Looseley
to reasonable grounds of suspicion, or the “reason” for the operation, was a control mechanism for testing the police’s good faith, and for avoiding mere “virtue testing”, and could be regarded as a necessary trigger. Thus Lord Nicholls said (at para [27]) that “the police must act in good faith” and that “Having reasonable grounds for suspicion is one way good faith may be established”. He continued:
“but having grounds for suspicion of a particular individual is not always essential. Sometimes suspicion may be centred on a particular place, such as a particular public house.”
Lord Hoffmann observed that the need for reasonable suspicion (and proper supervision) were both stressed in the Undercover Operations Code of Practice issued by all UK police authorities and HM Customs and Excise in response to the
Human Rights Act 1998
. He continued, picking up and elaborating on Lord Nicholls’ point:
“65. The requirement of reasonable suspicion does not necessarily mean that there must have been suspicion of the particular person who happens to have committed the offence. The police may, in the course of a bona fide investigation into suspected criminality, provide an opportunity for the commission of an offence which is taken by someone to whom no suspicion previously attached. This can happen when a decoy (human or inanimate) is used in the course of detection of crime which has been prevalent in a particular place…If the trick had been the individual enterprise of a policeman in an area where such crime was not suspected to be prevalent, it would have been an abuse of state power. It was justified because it was an authorised investigation into actual crime and the fact that the defendants may not have previously been suspected or even thought of offending was their hard luck.”
That was a qualification or elaboration on Lord Hoffmann’s previous remark at para [56] that –
“normally it is not considered a legitimate use of police power to provide people not suspected of being engaged in any criminal activity with the opportunity to commit crimes. The only proper participation is to obtain evidence of criminal acts which they suspect someone is about to commit or in which he is already engaged. It is not to tempt people to commit crimes in order to expose their bad character and punish them.”
54.
Professor Ormerod suggests that this qualification should not extend to “random virtue testing being used to target all residents of a high crime area” (at 73). In this connection, a question arises as to the relevance of a defendant’s “predisposition”. Their Lordships downplayed the test of predisposition (
cf
US and Strasbourg authority) even to the extent of Lord Hoffmann saying (at para [68]) that “Since the English doctrine assumes the defendant’s guilt and is concerned with the standards of behaviour of the law enforcement officers, predisposition is irrelevant to whether a stay should be granted or not”. Lord Nicholls said, perhaps more cautiously, that it is not “the criterion” by which the acceptability of police conduct is to be decided (at para [22]). Professor Ormerod, however, cites an article by Kate Hofmeyr in (2006) Crim LR 326 in support of the proposition that predisposition cannot be wholly irrelevant, since the “The real question behind the test enunciated by the House of Lords is counterfactual: would the accused have committed the crime without the involvement of the agent provocateur?” Professor Ormerod went on to cite
R v. Moon
[2004] EWCA Crim 2872
as supporting that proposition. That was a case where a woman undercover officer badgered a female addict persistently to obtain a single street supply of heroin, feigning withdrawal symptoms and distress, in circumstances where the defendant was able to say, by her evidence in a
voir dire
, that she had never been a supplier or a runner before or since. It was on the basis of those facts that
Moon
was distinguished in
R v. Jones
[2010] 2 Cr App R 10
by Leveson LJ at para [15].
Jones
concerned an undercover officer’s test purchases from a shop of cannabis-growing equipment, together with advice on growing cannabis, all under the pretence of the equipment and advice being for the growing of “tomatoes”. An application to stay for abuse of process was refused by the judge and an appeal was dismissed by this court.
55.
As for factor (ii), authorisation and supervision, the speeches in
Looseley
stressed the importance of proper control. This is relevant to the question whether the state has overstepped the mark of legitimate detection into the creation of crime. Thus Lord Hoffmann dealt with these considerations at paras [60]-[64] and, in discussing the Strasbourg case of (1998)
Texeira de Castro v. Portugal
28 EHRR 101, at paras [72]-[75]. At [60] he said:
“Closely linked to the question whether the police were creating or detecting crime is the supervision of their activities. To allow policemen or controlled informers to undertake entrapment activities unsupervised carries great danger, not merely that they will try to improve their performances in court, but of oppression, extortion and corruption. As we shall see, the European Court of Human Rights in
Texeira de Castro v Portugal
28 EHRR 101 attached great importance to the fact that the police were not acting in the course of an officially authorised investigation.”
56.
In this connection Professor Ormerod referred to
R v. Paulssen
[2003] EWCA Crim 3109
as a case where, in the context of a contract killing, this court was prepared to overlook what it described as “minor infractions of RIPA”: but also to
R v. Brett
[2005] EWCA Crim 983
and again to
Moon
where deliberate flouting of the authorisation process was acknowledged as a factor which might favour a finding of abuse of process. We have had cited to us the case of
Harmes and Crane
, where there was an undercover operation in which the defendants were offered soft drinks at cheap prices. The operation was centred on a public house which intelligence suggested was the source of large-scale distribution of class A drugs, and the defendants were targets of the operation. The undercover officers suggested that they were using the importation of soft drinks to disguise the importation of drugs. There was a supply of drinks for which the undercover officers requested payment of an ounce of cocaine. The effect of that exchange was to halve the price of the drinks. However, this exchange was the trigger for a disclosure by Harmes that he could import large quantities of cocaine every other day. That led to a “conspiracy” to import 200 kilos of cocaine.
57.
There was an application to stay the proceedings for abuse and a
voir dire
. The judge distinguished between the supply of an ounce of cocaine in payment for the drinks and the subsequent conspiracy. She stayed the indictment in relation to the former, but refused to do so in relation to the latter. There was authority for only “non-evidential purchases” of drugs, ie purchases not designed to lead to prosecution. However, the defendants had become involved in the conspiracy to import drugs willingly and out of a desire for large profits, not in the hope of more cheap drinks being supplied (at a time when such supply had long since ceased). There was an appeal in respect of that refusal to stay. The essence of the appeal was that the judge had underestimated the extent to which there had been breaches of RIPA and the Code of Practice. This court acknowledged that there had been serious breaches and “substantial defects in the process of authorisation” (see at paras [41]-[46] and especially [43]). In effect there was a complete absence of authorisation, or any relevant authorisation records, of the undercover officers’ modus operandi. Nevertheless, there was no illegitimate entrapment.
58.
Moses LJ said:
“51. We have already concluded that the officers’ conduct was criminal and it was not properly authorised. Nonetheless, we take the view that it should not be regarded as so seriously improper as to require the court to intervene to prevent the prosecution for conspiracy. It was conduct which merely exposed, for the purposes of the undercover operation, the undercover officers’ interest in drugs and eagerness to receive a small quantity. That was, in our judgment, no more than might be expected of any criminal willing to engage in illicit dealing in drugs.
Looseley
emphasised the importance of the analysis of the behaviour of the undercover officers in comparison with that which might bee expected of those committing criminal offences (see for example paragraph 55 of the speech of Lord Hoffmann in
Looseley
). Undercover officers, seeking to expose drug dealers, must show enthusiasm and a degree of persistence to provide protection for their undercover activities. As Lord Hoffmann accepts, a good deal of active behaviour may be acceptable (see paragraph 69).
52. In our judgment the conduct of the police officers was not exceptional and did not go beyond that which was necessary to show their willingness to deal in drugs. An exchange of a small amount of cocaine triggered the revelation that these defendants were not only happy to import very substantial quantities of cocaine but had the ability to do so. The officers’ activities pale into insignificance in comparison to the offers made by Harmes to import, on their behalf, large amounts of cocaine of a high value.”
59.
As for factor (iii), necessity and proportionality, a matter on which
Harmes and Crane
is again relevant, it was recognised in
Looseley
that justification may depend on the type of offence. In particular, consensual crimes which take place in secret, such as the supply of drugs, require undercover operations as an essential ingredient in the process of detection: see Lord Nicholls at para [26] and Lord Hoffmann at para [66].
60.
Factor (iv) concerns what Lord Nicholls called the “useful guide” of the provision of an “unexceptional opportunity”. Professor Ormerod raises the question of the extent to which this permits consideration of the subjective disposition of a defendant, as distinct from a concentration on the objective conduct of the hypothetical normal drug user (represented by the undercover officer). In this connection, he refers to Lord Hoffmann’s causation/opportunity distinction (see
Looseley
at paras [50]-[55]), as discussed in
R v. Hooper
[2002] EWCA Crim 621
. Did the undercover officer cause the crime or merely provide an opportunity to commit it with the officer rather than with someone else? Lord Hoffmann went on to say:
“55. The test of whether the enforcement officer behaved like an ordinary member of the public works well and is likely to be decisive in many cases of regulatory offences committed with ordinary members of the public, such as selling liquor in unlicensed quantities…But ordinary members of the public do not become involved in large scale drug dealing…The appropriate standards of behaviour are in such cases rather more problematic.”
61.
Professor Ormerod suggests that “causation alone
cannot
be the sole test. It is not a sophisticated enough test to deal with all the cases. It is however of great importance. Taking a drug deal as an example, but for the officer’s request D would not have committed the offence at that time and in that way. The police have caused the crime, but that cannot be a sufficient basis to say that there has been entrapment deserving a stay” (at 81). It might be relevant however if the police targeted a person known to be a mere user and not a dealer or runner (as in
Moon
).
62.
As to factor (v), authentication of the conversations and contacts, Professor Ormerod records that this was not discussed in
Looseley
, but was addressed in
R v. Chandler
[2002] EWCA Crim 91
in terms of the significance of the presence or absence of an unassailable record. The absence of such a record was regarded as important in
Moon
, where there was a conflict of evidence on the
voir dire
as to the circumstances of the offence.
63.
Finally, we have been referred to
R v. M
[2011] EWCA Crim 648
, where the judge granted a stay, but this was overturned on appeal by the Crown under
section 58
of the
Criminal Justice Act 2003
. A police undercover drugs operation was in progress in the North West of England in the course of which M had been targeted by an undercover officer. A “bond of trust and friendship had been cultivated”, and the officer had bought alcohol for M in shops from which M had been banned. The officer knew that M was an addict who would have sources of supply, but he had never been convicted of supplying drugs. He asked M where he could source some “white” in the town centre of Blackburn. M mentioned a dealer and the two telephoned him. M ordered a wrap of white and a wrap of brown for the officer: a car drove up, M obtained the wraps and handed them to the officer. This was the only deal in question. Counsel for both parties asked the judge to decide the application to stay after he had heard the police evidence, but the judge preferred to decide it on the papers.
64.
Stanley Burnton LJ said the issue was “whether [M] would have involved himself in this activity but for the request made by the officer” (at para [9]): ie appeared to test the matter by reference to a simple test of causation. He observed that M had not tried to inculcate the officer in the use of drugs until the occasion in question. For the Crown it was submitted that the officer had done no more than pose an open-ended question: he had not asked M to commit a crime and had only given him an opportunity to do so. For the Crown it was submitted that M was vulnerable to the unfair pressure of being tempted to move outside his usual way of life and to do a favour for a favour. Stanley Burnton LJ said that the absence of any pressure of persuasion on the part of the officer was particularly significant. In the circumstances, this court concluded that the real parallel was with the defendant in
Looseley
(rather than with the defendant in
Attorney General’s Reference (No 3 of 2000)
)
.
Stanley Burnton LJ reasoned as follows:
“18. In our judgment, there is no significant distinction between the assumed facts of the present case and the facts of
Looseley
. It is an inherent aspect of any undercover police operation that the undercover police officer insinuates himself into the confidence of those involved in the criminal conduct at which the operation is directed. For an officer who has so insinuated himself to offer an opportunity to a defendant to commit a criminal offence, in the absence of persuasion or pressure or the offer of a significant inducement, will not generally result in its being an abuse of the process to prosecute the person who takes that opportunity to commit an offence.
19. For these reasons it was not open to the judge to make a finding of entrapment on the assumed facts before him such as to render the prosecution of M an abuse of the process.
20. If, during the course of the evidence, facts (for example, that there was pressure put on M to supply the drugs in question) are established that go significantly beyond those on which the judge made his decision, it may be necessary to review our decision. It is for this reason that we consider that it would have been sensible for the judge to have followed the procedure suggested by counsel, that is for the issue of entrapment to be addressed after [the officer] had given evidence before the jury, with if necessary M giving evidence at that stage in the absence of the jury.”
Discussion
65.
It may be seen from the above jurisprudence and Professor Ormerod’s analysis that the present case lies intriguingly between the circumstances of previously decided cases. It shares certain elements of those cases, but ultimately stands on its own facts.
66.
Ms Moore partakes of certain features of the defendants in
Attorney General’s Reference (No 3 of 2000)
and
Moon
in as much as it could not be said that she had previously been involved in the supply of any drugs,
but there the similarity ends: for both of them, unlike Ms Moore, were addicts who were simply lured into a single supply, and only after some persuasion by the undercover officer concerned. In the present case, as in
M
,
Ms Moore needed no persuasion whatsoever, but on the contrary seemed to take to the multiple supply of reasonably large quantities of cocaine like a duck to water (facts which go well beyond
M
). In any event the jurisprudence tells us that we must rather concentrate on the nature of the police conduct rather than on the nature of the defendant’s predisposition. However, in many respects one is the other side of the other, for ultimately it is in the sense of proportion and fairness, in the question of whether the police overstepped some line so as to make their conduct unacceptable, that the solution lies. That is why Lord Nicholls cautions us (at para [28] of
Looseley
) that “regard is to be had to the defendant’s circumstances, including his vulnerability…this is a recognition that what may be a significant inducement to one person may not be so to another”.
67.
There are likewise factual similarities but also differences in the way in which the undercover operation in this case compared with the operations in
Attorney General’s Reference (No 3 of 2000)
,
Harmes and Crane
or
M
. There is, however, no similarity with the way in which the supply of cocaine was requested by the police in the latter case as the (hugely advantageous) price of the soft drinks sold by them.
68.
If we consider the five factors to which we have referred above, as highlighted in Professor Ormerod’s article on the basis of the jurisprudence in this area, we would observe the following. First, there was plainly a reasonable suspicion of drug dealing (and other criminality) in the Abbeywood area which justified the taking of covert policing operations. The fact that Ms Moore was herself not personally suspected in this context, nor a named target, is no doubt something to be taken into account: but, as Lord Nicholls observed, having grounds for suspicion of a particular person is not always essential, and as Lord Hoffmann remarked, the fact that individual defendants may not have previously been suspected or even thought of offending can occur and be their bad luck. Presumably that observation assumed the absence of other reasons for thinking that in an individual case there had been circumstances which would justify a conclusion that the police had unjustifiably created state sponsored crime.
69.
Secondly, there is the question of authorisation for and supervision of the police operation. In the present case, there clearly was both authorisation and supervision. It may be, as the judge found, that the authorisation was not immaculate, in that Commander Spindler’s authority document did not itself expressly refer to the tactic of using the sale of cheap goods to infiltrate the undercover officers into the local criminal community. Nevertheless, it is clear from the documents cited earlier in this judgment that Commander Spindler’s authority was signed off on the basis of the proposed use of some such tactic, and that the operation in this regard had been supervised. Purchases of drugs had been expressly authorised. It is true that the documents setting up the operation contemplated that the goods would be used for the purposes of the undercover officers’ “cover story” or “legend” and
not
for entrapment, let alone entrapment of those not suspected of being associated in criminality. That, however, begs the question in this case, which the judge at any rate answered adversely to Ms Moore, of whether there
had been
on the facts a crossing of the line into unjustified entrapment. On the judge’s findings as to authorisation and supervision, there was only a technical breach, and there is no ground of appeal to upset that conclusion, which we in any event consider that the judge was entitled to reach.
70.
Thirdly, there is the question of necessity and proportionality, where it is recognised that in the context of certain crimes, such as drug dealing, covert operations are a necessary element in detection. Drug dealing, especially where it concerns substantial criminal operations such as were under investigation in Operations Bintan and Trazer, is a serious crime which requires intelligence work and covert operations to police. Once an operation is underway, it will probably be inevitable that persons who had not previously been suspected will come to the attention of undercover officers. If such persons join themselves voluntarily to involvement in drug dealing, without being lured to do so, then, even if there had been no previous offending of such a kind, they may find it difficult, especially in the absence of giving any evidence on a
voir dire
themselves and without cross-examination of the undercover officers concerned, to persuade a court, the burden being on them, that they had been unjustifiably, disproportionately, or unfairly lured and set up to commit a crime which the police and not they had created. Moreover, it would seem to us to be justifiable and proportionate to use the supply of drugs by such persons as stepping-stones in the investigation of the existing criminal conspiracies to supply drugs which the undercover operation was tasked to detect.
71.
Fourthly, on the subject of the “unexceptional opportunity”, the question in this case is whether the undercover officers acted in the ordinary way of drug purchasers or used some exceptional manoeuvre to lure Ms Moore into offending. Lord Hoffmann was surely right to observe, if we may respectfully say so, that ordinary members of the public do not become involved in large scale drug dealing and that the appropriate standards of behaviour in such cases are problematic. In such circumstances there seems to us to be nothing inherently wrong with undercover officers posing as criminals (and thus not as ordinary members of the public) in order to stake their credentials in a locality which has come under justifiable suspicion. The fact that there is a necessary subterfuge does not mean that the boundary has been crossed into unjustifiable entrapment. In the case of Ms Moore, it has to be recalled that it was not the undercover officers who sought her out, but her own step-father, a local criminal whom Ms Moore herself described as a drug dealer, who introduced her to the officers. Ms Moore then initiated the contact. It is submitted that she was poor and vulnerable, that the goods supplied to her by the officers were so tempting that they caused her to forsake her previous innocence of drug dealing, acting as an unjustifiable lure, and to do so immediately the question of some help in contacting a source of supply was raised. In our judgment, however, the judge was entitled to conclude that her case of abuse had not been made out. Prior to the open-ended question posed by Jason (“Does anyone round here got any [cocaine]?”), there had only been two supplies of cheap goods by the officers, for £30 and £32. Ms Moore was then in work (even if she subsequently lost her job). Ms Moore was not lured, persuaded or wheedled into supplying substantial quantities of cocaine, an ounce at a time. She immediately volunteered: “Yeah I can get it, in big bits for ya”. She may not have done it as a principal, to secure the profit on the deal for herself: but we do not know what arrangement she made with her own father, Graham Moore, whom she used at first as her supplier, or with any other supplier to whom she turned once Jason had established his own direct dealing with the father. It is true that Ms Moore referred to her first supply of drugs on 3 September 2010 as something that “keeps him [Jason] happy”. However, it is perfectly plain that she involved herself willingly in the supply, despite Jason’s repeatedly expressed concern as to whether she was content to do so.
72.
It is also true that there were subsequently further sales by the officers of cheap goods, although never in large quantities; and that the officers allowed her credit, which in our view was questionable conduct, since a creditor has power over a debtor; and that there came a time when Ms Moore told Jason that she had lost her job. However, Mr Carey-Hughes insisted that the matter had to be looked at by reference to Jason’s first question and her answer. In the circumstances, there is no distinction to be made between any of the offences. In due course, Ms Moore also initiated, without any suggestion or request, further offences of handling and delivering counterfeit notes.
73.
From the point of view of the officers’ conduct, they were conducting an authorised operation into serious criminal conduct. They were providing themselves with a justifiable entry and cover by supplying cheap goods. They did not seek out Ms Moore, but she sought them out, after her step-father’s introduction, so that she could make some money. The officers were investigating drug-dealing, so that they were surely not to be criticised as acting unjustifiably in raising a general question as to where drugs might be sourced. They put no pressure on Ms Moore, and no persuasion or temptation, to supply them. They never suggested that the supply of cheap goods would not be available if Ms Moore did not help them source drugs. There is something entirely disproportionate about the submission that a novice to drug dealing was lured into the hugely serious involvement in the supply of ounce after ounce of cocaine by a few tens of pounds of cheap goods.
74.
Fifthly, there is the question of the authentication of conversations and contacts. We know, for the most part, the actual words of the protagonists’ conversation because they were recorded for the purpose of evidence. This is not a case, as might otherwise happen (and did happen in
Moon
because of a failed recording), where there is a dispute about what was said. As was observed by Lord Hoffmann in
Looseley
, one of the dangers of undercover officers providing any opportunity for crime, let alone entrapping defendants into it, is that “they will try to improve their performances in court”, or will slide into oppression, extortion and corruption. However, detailed substantiation of conversations and contacts will be a prime safeguard against that.
75.
Finally, it must be recalled that the burden of proof is on the applicant defendant, albeit the standard is only that of the balance of probabilities. Unless the relevant facts are agreed, or are assumed for the purposes of argument, it may be necessary therefore for an applicant to give evidence in a
voir dire
, or to cross-examine the undercover officers as to their conduct or for there to be at least agreed assumptions as to the facts. If Ms Moore wished to say, as was submitted on her behalf, that it was a clear, albeit unspoken, premise of her relationship with the undercover officers that they were taking advantage of her vulnerability and innocence to lure her into offending by the temptation of cheap goods, and that the recordings of their conversations did not reflect the true circumstances as they had to be understood, then it was for her to initiate the necessary evidence and cross-examination. That was what both parties had sought to persuade the judge to undertake in
M
.
76.
In these circumstances, we have been unable to say that the judge was wrong to conclude that on the facts of this case the application to stay the proceedings for abuse of process had not been made out. The conduct of the undercover officers was not so seriously improper as to bring the administration of justice into disrepute and there is no affront to the public conscience in these prosecutions. Although this case does not fit precisely into any particular mould, as reflected in decided cases, in our judgment the essence of it is similar to
M
and not to the
Attorney General’s Reference (No 3 of 2000)
. The undercover officers here did no more than provide Ms Moore with an opportunity, which she seized immediately and resolutely, to volunteer herself as a participant in substantial offending. They did not create her offending, indeed they even sought to distance her from it, but she persisted. This remains the case even if, as we assume, Ms Moore had never supplied drugs before and even if it could be said that, but for the opportunity created, she would not have done so on these occasions.
77.
If Ms Moore’s appeal cannot succeed, it is common ground that Mr Burrows’ appeal cannot succeed either.
Conclusion
78.
These are the reasons for our dismissal of the appeals of Ms Moore and Mr Burrows at the time of their hearing. | {"ConvCourtName": ["Crown Court at Blackfriars"], "ConvictPleaDate": ["28 October 2011"], "ConvictOffence": ["delivering counterfeit £10 notes", "supplying cocaine", "concerned in the supply of cocaine", "handling stolen goods", "charged with supply"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["pleaded guilty"], "PleaPoint": ["on re-arraignment"], "RemandDecision": ["data not available"], "RemandCustodyTime": ["data not available"], "SentCourtName": ["Crown Court at Blackfriars"], "Sentence": ["total of 4 years 8 months imprisonment", "12 months’ imprisonment suspended for 2 years, with a requirement to carry out 180 hours of unpaid work"], "SentServe": ["concurrent", "consecutive"], "WhatAncillary": ["data not available"], "OffSex": ["Ms Moore and Mr"], "OffAgeOffence": ["26"], "OffJobOffence": ["work"], "OffHomeOffence": ["her 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": ["documents", "recorded for the purpose of evidence", "mobile phones", "undercover operation"], "DefEvidTypeTrial": ["she had never previously been involved in the sale of drugs;"], "PreSentReport": ["data not available"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["data not available"], "Appellant": ["Appellants"], "CoDefAccNum": ["five accused"], "AppealAgainst": ["against conviction"], "AppealGround": ["third related to entrapment.", "grounds: one related to discovery", "second related to illegality of the operation"], "SentGuideWhich": ["Criminal Justice Act 2003."], "AppealOutcome": ["dismissal of the appeals"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["the judge was wrong to conclude that on the facts of this case the application to stay the proceedings for abuse of process had not been made out."]} | {"ConvCourtName": ["Crown Court At Blackfriars"], "ConvictPleaDate": ["2011-10-28"], "ConvictOffence": ["charged with supply", "delivering counterfeit £10 notes", "handling stolen goods", "concerned in the supply of cocaine", "supplying cocaine"], "AcquitOffence": ["data not available"], "ConfessPleadGuilty": ["Yes"], "PleaPoint": ["on re-arraignment"], "RemandDecision": ["Don't know"], "RemandCustodyTime": ["Don't know"], "SentCourtName": ["Crown Court At Blackfriars"], "Sentence": ["12 months’ imprisonment suspended for 2 years, with a requirement to carry out 180 hours of unpaid work", "total of 4 years 8 months imprisonment"], "SentServe": ["Consecutive", "Combination"], "WhatAncillary": ["data not available"], "OffSex": ["Mixed"], "OffAgeOffence": ["26"], "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": ["Digital", "documents", "Police evidence"], "DefEvidTypeTrial": ["Offender denies offence"], "PreSentReport": ["Don't know"], "AggFactSent": ["data not available"], "MitFactSent": ["data not available"], "VicImpactStatement": ["Don't Know"], "Appellant": ["Offender"], "CoDefAccNum": ["5"], "AppealAgainst": ["against conviction"], "AppealGround": ["third related to entrapment.", "second related to illegality of the operation", "grounds: one related to discovery"], "SentGuideWhich": ["Criminal Justice Act 2003."], "AppealOutcome": ["Dismissed-Failed-Refused"], "ReasonQuashConv": ["data not available"], "ReasonSentExcessNotLenient": ["data not available"], "ReasonSentLenientNotExcess": ["data not available"], "ReasonDismiss": ["the judge was wrong to conclude that on the facts of this case the application to stay the proceedings for abuse of process had not been made out."]} | 230 |
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